author: THOMPSON, Presiding Judge.

text:
    ODEN MUSIC, INC., f/k/a JDO, Inc., and Jason D. Oden v. Deborah STOWE.
    2071138.
    Court of Civil Appeals of Alabama.
    May 1, 2009.
    Rehearing Denied July 17, 2009.

      Frank W. Bailey, Gadsden, for appellants.
    Theodore A. Copland II, Anniston, for appellee.
   THOMPSON, Presiding Judge.

In June 2006, Deborah Stowe filed a complaint against Oden Music, Inc. (“Oden Music”), f/k/a JDO, Inc., and Jason D. Oden (“Oden”), seeking to recover damages on claims of breach of contract, negligence, fraud, and wrongful detention of certain property. In her complaint, Stowe alleged that the defendants had agreed to refinish and repair her antique furniture that was damaged as a result of a house fire. The defendants answered and denied liability.

The record contains no indication of further activity in the litigation until early 2008, although the State Judicial Information System (“SJIS”) indicates that the case was scheduled for status-review hearings three times in 2007. In January 2008, Stowe filed a motion asking the trial court to schedule the action for a trial. On January 30, 2008, the trial court entered an order scheduling a trial in the matter for April 1, 2008; the order indicates that it was served on the attorneys of record for the parties.

On March 7, 2008, the defendants’ attorney (“the defendants’ first attorney”) filed a motion to withdraw in which he stated that the Alabama State Bar had placed him on “disability-inactive status,” and that he was no longer authorized to practice law. The defendants’ first attorney explained that, as a result of the change in his status, he could no longer represent the defendants. The motion to withdraw did not contain any indication that the defendants’ first attorney had served the motion to withdraw on the defendants, his clients. However, also on March 7, 2008, the trial court granted the motion to withdraw, and a handwritten notation on that ruling indicates that the ruling was served on “Jason Oden, pro se.”

As explained later in this opinion, a reference in the transcript of the trial indicates that Oden appeared, pro se, at the scheduled April 1, 2008, trial. It appears that the trial court granted a continuance of the trial at that time in order to allow the defendants to obtain a new attorney.

On April 7, 2008, Oden, purportedly on behalf of the defendants, filed a motion to dismiss Stowe’s claims or, in the alternative, to compel arbitration. A handwritten notation on the motion dated June 23, 2008, states “motion denied”; that ruling was not entered on the SJIS. See Rule 58(c), Ala. R. Civ. P. (“An order or a judgment shall be deemed ‘entered’ within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System.”). However, the entry of the final judgment in this matter constituted a denial of that motion.

In support of their postjudgment motion, the defendants submitted a letter dated May 2, 2008, from their new attorney (“the defendants’ second attorney”) to the trial court. The May 2, 2008, letter, which was not filed separately in the trial court clerk’s office, indicated that it pertained to this litigation. In that letter, the defendants’ second attorney advised the trial court of a “conflict in [his] calendar.” In its judgment in this matter, the trial court acknowledged receiving that letter and stated that it had entered its May 21, 2008, order postponing the scheduled trial in response to that letter. On May 21, 2008, the trial court entered an order rescheduling the trial of the matter to June 23, 2008. That order indicates that it was served on Stowe’s attorney and on both defendants. At the time the trial court entered its May 21, 2008, order, the defendants’ second attorney had not filed his notice of appearance in the trial court.

The trial court conducted the scheduled trial on June 23, 2008. Only Stowe and her attorney attended the trial; the defendants and their second attorney did not appear. The trial court received ore tenus evidence on Stowe’s claims against the defendants.

On July 1, 2008, the trial court entered a default judgment in favor of Stowe, and it awarded her $22,000 in compensatory damages and $33,000 in punitive damages. The next day, July 2, 2008, the defendants’ second attorney filed his notice of appearance on behalf of the defendants. On July 25, 2008, the defendants filed a motion to set aside the default judgment pursuant to Rule 55(c), Ala. R.Civ. P. The trial court denied that motion without conducting a hearing, and the defendants timely appealed. The appeal was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, the defendants contend that the trial court erred in refusing to grant their motion to set aside the default judgment. The trial court has broad discretion in ruling on a motion to set aside a default judgment. Zeller v. Bailey, 950 So.2d 1149, 1152 (Ala.2006); Rudolph v. Philyaw, 909 So.2d 200, 202 (Ala.Civ.App.2005). In determining whether to grant or deny a motion to set aside a default judgment, the trial court must first presume that the action should be resolved on the merits whenever practicable. Jones v. Hydro-Wave of Alabama, Inc., 524 So.2d 610, 613 (Ala.1988). That presumption must be balanced against the policy interest of promoting judicial economy. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600, 604 (Ala.1988). In balancing those interests, the trial court should consider “1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.” Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d at 605.

With regard to the first factor set forth in Kirtland, supra, the defendants have disputed the allegations that they breached the parties’ contract or made misrepresentations to Stowe, and they raised arguments pertaining to the timeliness of Stowe’s claims. The defendants have also contended that the parties resolved this dispute before Stowe filed her complaint. In addition, after the defendants’ first attorney withdrew, Oden, purportedly on behalf of both defendants, filed a pro se motion raising the issue whether the matter should be submitted to arbitration. “[A] defaulting party has satisfactorily made a showing of a meritorious defense when allegations in an answer or in a motion to set aside the default judgment and its supporting affidavits, if proven at trial, would constitute a complete defense to the action, or when sufficient evidence has been adduced either by way of affidavit or by some other means to warrant submission of the case to the jury.” Kirtland, 524 So.2d at 606. In other words, “ ‘[t]o meet this element, the appellants have the burden of satisfying the trial judge only that they are prepared to present a plausible defense, not that they would necessarily prevail at a trial on the merits.’” Phillips v. Randolph, 828 So.2d 269, 274 (Ala.2002) (quoting Storage Equities, Inc. v. Kidd, 579 So.2d 605, 607 (Ala.1991)). We conclude that the allegations and documents submitted by the defendants in support of their motion to set aside the default judgment were sufficient to demonstrate the existence of a plausible defense to the merits of Stowe’s claims against them. See Phillips v. Randolph, supra.

We next address whether the defendants’ conduct leading to the entry of the default judgment was culpable. In the motion to set aside filed on behalf of the defendants, the defendants’ second attorney made a number of representations regarding the efforts he had made in representing the defendants in this litigation. The defendants’ second attorney represented to the trial court that he had forwarded a notice of appearance to the trial court clerk, although he did not state on what date he purportedly sent that notice of appearance or attach a copy of that purported notice to his motion to set aside the default judgment. Rather, he stated only that he “was under the mistaken belief’ that the notice of appearance had been filed and that he would receive notice of action taken in the litigation from the trial court clerk.

The defendants blame Stowe’s attorney for not informing them of the scheduled trial date. In support of their motion to set aside the July 1, 2008, judgment, the defendants submitted correspondence between their second attorney and Stowe’s attorney. In a June 2, 2008, letter inquiring about the possibility of the parties’ settling their dispute, Stowe’s attorney indicated that the case was “set for trial in only a few weeks.” In a June 5, 2008, letter sent to Stowe’s attorney in response to the June 2, 2008, letter, the defendants’ second attorney inquired when the case was set for trial; the record does not indicate whether Stowe’s attorney responded to the June 5, 2008, letter. The defendants’ second attorney also alleged that he left two telephone messages for Stowe’s attorney inquiring about the date of the scheduled trial; he further alleged that Stowe’s attorney did not respond to those telephone messages.

The defendants acknowledge that Oden left a telephone message for their second attorney to inform the attorney that Oden had received notice that a court date had been set. The defendants state that, in response to Oden’s message, their second attorney left a telephone message for Oden stating that he would check on the status of the case. However, in making their allegations concerning their second attorney’s attempts to check on the status of the litigation, the defendants cited only their second attorney’s attempts to contact Stowe’s attorney. The defendants did not attempt to explain why their second attorney made no effort to contact the trial court or the trial court clerk concerning the information he had received that indicated that a trial date had been scheduled or to inquire why, when he says he believed himself to be the attorney of record, he had not received formal notice of the trial setting from the trial court clerk. We note that before this court, the defendants’ second attorney takes issue with whether he should be required or expected to register and pay for the Internet-based judicial-system notification service. Regardless, he ignores the fact that other methods of contacting the trial court clerk’s office to inquire as to the status of the action were available to him; those methods include personally visiting the trial court clerk’s office or making a telephone call to that office to inquire as to the status of the litigation.

The defendants also contend that Stowe’s attorney somehow failed to accurately represent to the trial court his dealings with the defendants’ second attorney; they go so far as to allege that he “misrepresented to the trial court the representation of the undersigned!, i.e., the defendants’ second attorney].” The record does not support those allegations. At the beginning of the trial, the following exchange occurred between the trial court and Stowe’s attorney:

“THE COURT: Deborah Stowe versus JDO, Inc., doing business as Jason Oden Music. Defendants were first represented by Brian Andrews. While Mr. Andrews withdrew on March the 7th of ‘08. We had one hearing where Defendant Mr. Jason Oden appeared. Case was continued. That must have been on April the 1st. So Mr. Oden got him an attorney. Who was the attorney, Mr. Copeland [Stowe’s attorney]?
“MR. COPELAND: Your Honor, I was contacted by Frank Bailey out of Etowah County. Informed me he was going to represent Mr. Oden. We had correspondence on several occasions regarding this matter.
“THE COURT: No attorney has filed a notice of appearance in this case. We had originally set this case for trial on May the 6th.[] On April the 9th, I had denied [Oden’s] motion for continuance. I think Mr. Copeland decided to let him have a continuance. So anyway, we reset this case today for June the 23rd. It is 1:45, according to the clock on the telephone. Neither of the Defendants nor Mr. Bailey is here. The notice in the court file said that JDO, Inc., and Jason Oden were given notice. Mr. Copeland is here. I assume Ms. Stowe is here.
“MR. COPELAND: Correct, Your Honor.
“THE COURT: Mr. Oden, when he was representing himself, had filed a motion to dismiss or in the alternative to compel arbitration. Defendant not being here to pursue that claim, I am going to deny that motion. You want to put any testimony on, Mr. Copeland?
“MR. COPELAND: Yes, Your Hon- or. ...”

The record and the representations the defendants have made to this court indicate that Stowe’s attorney accurately informed the trial court of his contacts with the defendants’ second attorney. Stowe’s attorney was under no duty to advocate on behalf of the defendants in this matter in the manner in which the defendants contend he should have.

In denying the defendants’ motion to set aside the default judgment, the trial court made the following factual findings with regard to the issue of the culpability of the defendants’ conduct:

“The Defendants, by counsel, filed their Motion to Vacate a Default Judgment which was entered by this court on July 1, 2008, at 08:37 a.m.
“Mr. Bailey alleges that his Notice of Appearance never made it to the clerk’s office. In checking Alaeourt, the Court sees a Notice of Appearance sent to the clerk’s office via e-file on July 2, 2008, at 04:33 p.m., one day after the Judgment was entered.
“The Court acknowledges that Mr. Bailey sent a conflict letter to the Court. The Court granted his [request for a] continuance with [Stowe’s attorney’s] consent.
“Mr. Bailey failed to make contact with his client when alerted that a trial was scheduled. It is the Court’s opinion that it was not a requirement of [Stowe’s attorney] to contact Mr. Bailey with a trial date.
“Mr. Bailey assumed that he would receive notice, automated or otherwise, of further settings in the case.
“When alerted by his client of the impending trial, it would appear that Mr. Bailey could contact the clerk’s office or view Alaeourt via the Internet, in which he is registered.”

(Emphasis in original.)

In their brief on appeal, the defendants contend that the worst that can be said of their conduct, or that of their second attorney, was that it was negligent rather than culpable. The determination whether a defaulting party’s conduct is culpable is within the discretion of the trial court. Triple D Trucking, Inc. v. Tri Sands, Inc., 840 So.2d 869, 874-75 (Ala.2002); Phillips v. Randolph, 828 So.2d at 279. In determining whether a defaulting party’s conduct is culpable, “[n]egligence by itself is insufficient.” Kirtland, 524 So.2d at 607. This court has explained the nature of the conduct necessary to be deemed “culpable” under Kirtland, supra, as follows:

“When considering whether to set aside a default judgment, a trial court must also consider whether the party against whom the default judgment was entered has committed culpable conduct warranting the denial of the Rule 55(c) motion. Kirtland, 524 So.2d at 607-08. Mere negligence in the conduct of one’s legal affairs is not considered culpable conduct. Instead, culpable conduct is ‘[c]onduct committed willfully or in bad faith,’ id. at 607, which the Kirtland court described as being ‘characterized by incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonresponsiveness.’ Id. at 608. Utter disregard for court rules and judicial authority, said the Kirtland court, ‘justifies a finding of culpability and thus militates against an exercise of discretion in favor of the defaulting party.’ Id. However, if a party has a ‘reasonable explanation for inaction,’ like a negligent failure to timely respond to a complaint or a lack of ability to understand the summons and complaint, the trial court may well find that the party’s conduct was not culpable. Id.”

Moore v. Welch, 29 So.3d 185, 192 (Ala.Civ.App.2009).

In Triple D. Trucking, Inc., supra, the defendants sought to set aside a default judgment entered against them after they had failed to appear for a scheduled trial on the merits; in their motion to set aside, the defendants alleged that they had been “ ‘mistaken and confused’ ” about the trial date. 840 So.2d at 874. In addressing the Kirtland factor of culpability, the defendants claimed to have been confused with regard to the status of the case by a suggestion of bankruptcy filed by one of the defendants. In Triple D Trucking, Inc., supra, the motion to withdraw filed by defendants’ attorney had been granted a month before the scheduled trial, but the attorney’s motion had stated that the defendants had been informed of the court date. Further, the defendants admitted receiving the trial court’s scheduling order. Our supreme court affirmed the denial of the motion to set aside the default judgment, concluding in relevant part that it could not “ascertain any fact in the record to support an inference that the defendants’ conduct was excusable negligence.” Triple D Trucking, Inc., 840 So.2d at 875.

In this case, the defendants’ second attorney was apprised by both Stowe’s attorney and by Oden that the matter had been scheduled for trial. Oden received the scheduling order containing the scheduled trial date from the trial court; at that time, Oden was still listed as a pro se defendant and had no attorney of record because the trial court had not received the notice of appearance purportedly sent by the defendants’ second attorney and because the conflict letter the attorney sent the trial court was not filed in the trial court clerk’s office. Oden contacted the defendants’ second attorney concerning the trial court’s notification. However, even after this second notification of an impending trial, the defendants’ second attorney did not contact the trial court to ascertain the trial date.

Our supreme court has explained “that, due to a trial judge’s superior vantage point, the trial court is the more suitable arbiter for determining with accuracy the culpability of the defaulting party’s conduct, and, for this reason, we will show great deference toward the trial court’s decisions with respect to such culpability.” Jones v. Hydro-Wave of Alabama, Inc., 524 So.2d at 616. In denying the defendants’ motion to set aside the default judgment, the trial court made a number of factual determinations indicating its conclusion that the conduct of the defendants, or their attorney, was culpable. This court might not have reached the same result as did the trial court, but we are unable to conclude that the trial court exceeded its discretion in resolving this issue against the defendants. Triple D Trucking, Inc., supra.

We last turn to a consideration of whether the nondefaulting party would be prejudiced by the setting aside of the default judgment for a trial on the merits. See Kirtland, supra. The prejudice to the nondefaulting party resulting from the setting aside of the judgment must be more than the mere delay caused by setting aside the judgment, i.e., it must be “substantial.” Kirtland, supra. The court in Kirtland pointed out that the delay resulting from setting aside a default judgment “frustrates or impedes a plaintiffs efforts to recover on his claim and causes him to incur additional costs” and that the that delay could “facilitate fraud and collusion, result in loss of evidence, and hinder discovery.” Kirtland, 524 So.2d at 606-07. It is the burden of the defaulting party to demonstrate that those considerations would not work to prejudice the nonde-faulting party if the default judgment were set aside. Rudolph v. Philyaw, supra. This court has explained:

“‘[W]hen a party files a motion to set aside a default judgment, the movant has the initial burden of making a prima facie showing that the plaintiff will not be unfairly prejudiced if the default judgment is set aside. If the movant makes a prima facie showing that the plaintiff will not be unfairly prejudiced, the burden then shifts to the plaintiff to present facts showing that the plaintiff will be unfairly prejudiced if the default judgment is set aside.’ ”

Rudolph v. Philyaw, 909 So.2d at 203 (quoting Phillips v. Randolph, 828 So.2d at 278). In her brief submitted to this court, Stowe argues that the defendants failed to meet their initial burden of making a prima facie case that she would not be substantially prejudiced by setting aside the default judgment. We agree.

In their motion to set aside the default judgment, the defendants alleged only that Stowe would suffer no prejudice. However, merely alleging that there would be no prejudice to the nondefaulting party by setting aside a default judgment is not sufficient to meet their prima facie burden of establishing a lack of prejudice to the nondefaulting party. Royal Ins. Co. of America v. Crowne Invs., Inc., 903 So.2d 802, 811 (Ala.2004); Phillips v. Randolph, supra; and Calhoun v. Bracknell, 993 So.2d 902, 905-06 (Ala.Civ.App.2008).

In Royal Insurance Co. of America v. Crowne Investments, Inc., supra, during a hearing on the defaulting party’s motion to set aside the default judgment, the defaulting party’s attorney argued to the trial court that the various witnesses remained available, that photographic evidence was preserved, and that the records from which the plaintiffs could base their claims of loss of profits were still in existence. Our supreme court concluded that, in presenting that argument, the defaulting party had met its prima facie showing and that the burden had shifted to the nonde-faulting party to present evidence of substantial prejudice. Royal Ins. Co. of America v. Crowne Invs., Inc., 903 So.2d at 811-12.

In Phillips v. Randolph, supra, the defaulting party alleged in his motion to set aside the default judgment only that the nondefaulting party would not be prejudiced. On appeal, the defaulting party contended only that the record did not demonstrate that prejudice would result from setting aside the default judgment. The supreme court concluded that the defaulting party had failed to show that the nondefaulting party would not be “unfairly prejudiced” by setting aside the default judgment. Phillips v. Randolph, 828 So.2d at 278.

In Calhoun v. Bracknell, supra, in his motion to set aside the default judgment, the defaulting party submitted to the trial court an affidavit in which he stated that no evidence had been lost, that no witnesses were unavailable, and that the parties each had his paperwork pertaining to the contract at issue. The trial court denied the motion to set aside the default judgment. On appeal, this court held that the defaulting party had made a prima facie showing that had shifted the burden to the nondefaulting parties to show that they would be prejudiced by setting aside the default judgment. Calhoun v. Bracknell, 993 So.2d at 906.

In Moore v. Welch, supra, the trial court, among other things, granted a motion to set aside a default judgment. On appeal, this court analyzed whether the trial court had exceeded its discretion in setting aside the default judgment when the defaulting parties had, in essence, merely alleged that the nondefaulting party would not suffer prejudice. In that case, this court concluded that the defaulting parties “could have better presented their argument that [the nondefaulting party] would not suffer substantial prejudice if the default judgment were set aside.” 28 So.3d at 758. However, citing the discretion afforded the trial court in ruling on a motion to set aside a default judgment, this court affirmed the trial court’s grant of the motion to set aside. Id. Moore v. Welch, supra, is distinguishable from this case because, in Moore v. Welch, we held that the trial court could properly exercise its discretion to grant a motion to set aside a default judgment even when the allegations pertaining to the prejudice to the nondefaulting party were meager.

In this case, the defendants alleged only that Stowe would not be prejudiced by the delay caused by setting aside the default judgment. They presented no evidence, as did the defaulting party in Calhoun v. Bracknell, supra, with regard to the availability of witnesses or evidence, and they made no arguments with regard to those factors, as did the defaulting party in Royal Insurance Co. of America v. Crowne Investments, Inc., supra. Thus, we must agree with Stowe’s argument to this court that the defendants failed to meet the burden our supreme court established in Phillips v. Randolph, supra, requiring that they make a prima facie showing that Stowe would not suffer substantial prejudice if the default judgment were set aside. Accordingly, the consideration of prejudice under Kirtland, supra, must be resolved against the defendants.

In this case, the defendants demonstrated the existence of a meritorious defense, which is the first factor to be considered under Kirtland, supra. However, based upon our conclusions that the defendants failed to demonstrate the absence of substantial prejudice or culpable conduct, we cannot say that they have demonstrated that the trial court exceeded its discretion in denying their motion to set aside the default judgment based upon the second and third Kirtland factors. Phillips v. Randolph, supra; Triple D Trucking, Inc., supra.

The defendants also contend on appeal that the trial court erred in awarding punitive damages, and they argue that the trial court erred in allegedly refusing to conduct a hearing on the issue whether the punitive-damages award was excessive under Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989). Stowe responds by correctly pointing out that the defendants failed to raise either of those arguments before the trial court. Stowe argues that those issues may not now be raised for the first time on appeal. Abbott v. Hurst, 643 So.2d 589, 593 (Ala.1994) (An appellate court “will not consider an argument raised for the first time on appeal; its review is limited to evidence and arguments considered by the trial court.”).

In Phillips v. Randolph, supra, our supreme court refused to address the issue whether a punitive-damages award in a default judgment was excessive because the defaulting party had failed to raise the issue before the trial court. Our supreme court explained:

“Although Phillips argues, in his brief to this Court, that the trial court erred in not granting a hearing to determine if the punitive damages were excessive, in light of Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989), Phillips did not request that the trial court conduct a hearing on this issue. In Waldrip Wrecker Service, Inc. v. Wallace, 758 So.2d 1110 (Ala.Civ.App.2000), the Court of Civil Appeals stated:
“ ‘Waldrip failed to properly request a hearing on the issue of punitive damages. The trial court did not err in not holding a hearing, when none was requested. Waldrip’s final argument regarding the excessiveness of the punitive-damages award is, therefore, pretermitted because appellate courts generally do not address issues not decided by the trial court.’
758 So.2d at 1116.
“See also Etherton v. City of Homewood, 700 So.2d 1374, 1377-78 (Ala.1997), citing McWhorter v. Clark, 342 So.2d 903 (Ala.1977), and quoting Bevill v. Owen, 364 So.2d 1201, 1203 (Ala.1979), for the proposition that ‘ “[i]t is a fundamental rule of appellate procedure that, regardless of [the] merits of [the] appellant’s contentions, appellate courts will not review questions not decided by the trial court.” ’ ”

Phillips v. Randolph, 828 So.2d at 279-80.

The defendants mentioned the issue of punitive damages in their motion to set aside the default judgment, but their arguments were asserted only in the context of demonstrating that they had a meritorious defense to Stowe’s claims against them. In their motion to set aside the default judgment, the defendants did not take issue with the damages award, nor did they request a hearing on the reasonableness of the punitive-damages award. Thus, we agree with Stowe that this court may not address those issues for the first time on appeal. Phillips v. Randolph, 828 So.2d at 279-80.

The defendants have failed to demonstrate error on appeal. The appellee’s request for an award of an attorney fee on appeal is denied.

AFFIRMED.

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

MOORE, J., dissents, without writing.

      . In her complaint, Stowe designated this defendant as “JDO, Inc., d/b/a Oden Music Co., Inc."

      . Oden could represent only himself pro se; he could not represent Oden Music. Stage Door Dev., Inc. v. Broadcast Music, Inc., 698 So.2d 787, 787 (Ala.Civ.App.1997) (“One who is not an attorney may not appear as an advocate on behalf of a corporation, even one he wholly owns, without engaging in the unauthorized practice of law.”).

      .See note 2, supra.

      . We make no determination whether the arbitration defense was timely asserted.

      . No order setting the case for trial on May 6, 2008, is contained in the record on appeal.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    D.P. v. LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2080544.
    Court of Civil Appeals of Alabama.
    July 2, 2009.

      Brian C.T. Jones, Athens, for appellant.
    Sharon E. Ficquette, gen. counsel, and Elizabeth Hendrix, staff atty., Department of Human Resources, for appellee.
   THOMAS, Judge.

D.P. (“the father”) appeals from a juvenile court’s permanency-plan order relieving the Limestone County Department of Human Resources (“DHR”) of the obligation to make reasonable efforts to reunite the father with R.A.C., his dependent son (“the child”).

In April 2008, DHR filed a petition alleging that the child was dependent by virtue of the following circumstances: that the child’s mother, L.S., had ongoing substance-abuse problems and had neglected him; that the mother’s husband, R.S., was not the child’s biological father; and that D.P., the child’s alleged biological father, who had an extensive criminal record, had taken custody of the child. Following a hearing, the juvenile court determined that the child was dependent, awarded legal custody to DHR, and placed the child with maternal relatives. The court further ordered that paternity testing be conducted. That testing revealed that D.P. was indeed the biological father of the child, and the juvenile court formally adjudicated him to be the child’s father.

In December 2008, DHR moved for a judicial determination that it was not obligated to make reasonable efforts to reunite the father and the child because, it alleged, the father had been charged in 1996 with capital murder and had been convicted in 1998 of manslaughter for causing the death of a former girlfriend’s 20-month-old child. DHR’s motion alleged that,

“pursuant to § 12-15-65(m)(2), Code of Alabama 1975, reasonable efforts shall not be required where a court of competent jurisdiction has determined that a parent has committed murder or voluntary manslaughter of another child.”

The juvenile court set DHR’s motion to be relieved of the obligation to make reasonable efforts to reunite the father and the child for a hearing on January 80, 2009. The record does not contain a transcript of that hearing, but the court issued an order following the hearing indicating that the court and counsel had discussed the fact that § 12-15-65(m)(2), Ala.Code 1975, does not, in fact, relieve DHR of the obligation to make reasonable efforts when a court of competent jurisdiction determines that a parent has “[cjommitted murder or voluntary manslaughter of another child.” (Emphasis added.) That statute applies when a parent has “[cjommitted murder or voluntary manslaughter of another child of such parent ” (emphasis added), whereas the Alabama Juvenile Justice Act of 2008 (“the current AJJA”), effective January 1, 2009, “expands the types of criminal offenses which, if committed by a parent of a child in foster care, excuses the state from making reasonable efforts....” See Alabama Juvenile Justice Act of 2008 Annotated Guide, p. 62 n.100 (Alabama Administrative Office of Courts, July 29, 2008). Section 12-15-312(c)(2), Ala.Code 1975, a part of the current AJJA, provides that DHR is excused from making reasonable efforts if a parent has, among other things, “[c]ommitted murder or manslaughter of another child .... ” Section 12-15-312(c)(2) contains no requirement that the victim of murder or manslaughter be the parent’s child.

During the January 30, 2009, hearing, DHR apparently argued that § 12-15-312(c)(2), the current AJJA provision, governed the juvenile court’s decision on its motion, and the father argued that former § 12-15-65(m)(2) governed; the juvenile court’s post-hearing order recited the following:

“The Court heard the position of all parties on the pending motions. The Court stated that it shall take the motion regarding reasonable efforts under advisement, and in doing so shall give all the attorneys the opportunity to submit a brief on the issues regarding the application of reasonable efforts under the former statute and the new [AJJAj.”

DHR submitted a brief, arguing that § 12-15-312(c)(2) governed the case because it was the statute in effect at the time of the hearing on the motion. The record indicates that the father did not submit a brief.

On March 11, 2009, the juvenile court entered an order that provided, in pertinent part:

“A motion for a judicial finding that reasonable efforts are no longer required with the father of the minor child was filed by the Limestone County [DHR]. A hearing to render the decision on said Motion following submissions of memorandum of law was scheduled for this date. Also scheduled was a disposi-tional review hearing.
“The Court stated that when it considered the motion regarding reasonable efforts it considered whether § 12-15-65(m)(2), Code of Alabama (1975), or § 12-15-312(c)(2), Code of Alabama (1975), applied. The Court stated that based upon the memorandum of law submitted and the Court’s own research, it shall Order that the new statute shall apply, and that reasonable efforts toward reunification with the father are no longer required.
“The [DHR] then announced the permanency plan to the Court, which is return to parent. Upon consideration of the same, it is, therefore, ORDERED, ADJUDGED, and DECREED by the Court that the Motion is hereby GRANTED and that reasonable efforts toward reunification of the minor child with his father ... are no longer required.
“It is FURTHER ORDERED BY THE COURT that the permanency plan for [the child] is return to a parent.”

On April 1, 2009, the clerk of this court requested that the parties submit letter briefs addressing whether the juvenile court’s March 11, 2009, order was a final judgment that would support an appeal. On April 10, 2009, the father moved this court to invest the juvenile court with temporary jurisdiction to issue an amended order; on April 13, 2009, this court reinvested the juvenile court with jurisdiction so that it could enter an amended order. On April 7, 2009, the juvenile court entered an amended order stating, in pertinent part, that “[t]his order represents a final order on the motion for judicial finding that reasonable efforts are no longer required as to [the father].”

Finality

Because “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu,’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)), we first consider whether this court has jurisdiction to entertain the father’s appeal. An appeal ordinarily lies only from a final judgment. Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). Rule 28(A), Ala. R. Juv. P., provides, in pertinent part:

“(1) Appeals from final orders, judgments, or decrees of the juvenile court shall be to the appropriate appellate court, subject to the Alabama Rules of Appellate Procedure, if:
“(a) A record certified as adequate by the juvenile court judge[] or a stipulation of facts is available and the right to a jury trial has been exercised or waived by all parties entitled thereto; or,
“(b) The parties stipulate that only questions of law are involved and the juvenile court certifies the questions.”

“A final judgment is one ‘that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.’ ” Wright v. Wright, 882 So.2d 361, 363 (Ala.Civ.App.2003) (quoting Bean v. Craig, 557 So.2d at 1253).

Although a juvenile court’s orders in a dependency case are, in one sense, never “final” because the court retains jurisdiction to modify its orders upon a showing of changed circumstances, see C.L. v. D.H., 916 So.2d 622 (Ala.Civ.App.2005); Committee Comments, Rule 4, Ala. R.App. P., this court has always treated formal dependency adjudications as final and appealable judgments despite the fact that they are scheduled for further review by the juvenile court.

“Under our caselaw, a formal determination by a juvenile court of a child’s dependency coupled with an award of custody incident to that determination will give rise to an appealable final judgment even if the custody award is denominated as a ‘temporary’ award and further review of the case is envisioned. See Potter v. State Dep’t of Human Res., 511 So.2d 190, 192 (Ala.Civ.App.1986); see also C.L. v. D.H., 916 So.2d 622, 625-26 (Ala.Civ.App.2005).”

J.J. v. J.H.W., 27 So.3d 519, 522 (Ala.Civ.App.2008).

In H.H. v. Baldwin County Department of Human Resources, 989 So.2d 1094, 1108 (Ala.Civ.App.2007)(opinion on return to remand) (authored by Moore, J., with two judges concurring in the result), this court explained that a permanency hearing is statutorily mandated as the means by which the juvenile court is to determine the “permanent disposition” of the child. In two other recent cases, Judge Moore issued special writings outlining a shift in procedure with respect to dependency/termination-of-parental-rights cases that, he perceived, had been accomplished by our legislature’s amendment of the Alabama Juvenile Justice Act of 1990 (“the former AJJA”), § 12-15-1 et seq., Ala.Code 1975, and the Child Protection Act (“CPA”), § 26-18-1 et seq., Ala.Code 1975, in order to comply with federal legislation known as the Adoption and Safe Families Act (“ASFA”), 42 U.S.C. § 671 and § 675; in separate special writings in those cases, Judge Bryan and Judge Thomas agreed with Judge Moore as to this issue. See T.V. v. B.S., 7 So.3d 346 (Ala.Civ.App.2008), and A.D.B.H. v. Houston County Dep’t of Human Res., 1 So.3d 53 (Ala.Civ.App.2008).

“In a permanency hearing, the juvenile court is to ‘determine’ which of several custodial arrangements — return to the parent, referral for termination of parental rights and adoption, or placement with a relative or other legal custodian—‘shall be’ the permanency plan. Id. The purpose of requiring the 12-month permanency hearing is to comply with the policy behind the ASFA to ensure ‘that children are provided a permanent home as early as possible.’ Kurtis A. Kemper, Annotation, Construction and Application by State Courts of the Federal Adoption and Safe Families Act and Its Implementing State Statutes, 10 A.L.R. 6th 173, 193 (2006).”

A.D.B.H., 1 So.3d at 69 (Moore, J., concurring in part and concurring in the result) (footnotes omitted).

The ASFA and the amendments to the former AJJA and the CPA placed new emphasis on the permanency hearing as a “vitally important” step in dependency/termination-of-parental-rights proceedings. See A.D.B.H., 1 So.3d at 68 (Thomas, J., concurring specially). T.V. and A.D.B.H. make it clear that issues such as DHR’s plan to reunify a family, the reasonableness of DHR’s efforts to rehabilitate a parent, and the possible placement of a child with a relative are meant to be aired and resolved at a permanency hearing. To the extent that a juvenile court’s permanency order resolves crucial issues, therefore, it is reasonable to expect that a parent has the right to judicial review of the juvenile court’s decision with respect to those issues. See T.V. v. B.S., 7 So.3d at 361 (Moore, J., concurring in the result) (stating that “[i]f the mother had had any complaint about the reasonableness of DHR’s efforts to reunite the family, the finding that her efforts to rehabilitate had been unsuccessful, the placement of the child with [a relative] without consideration of other relatives, or the terms of her visitation, the mother’s remedy was to appeal the judgment entered after the permanency hearing”).

Accordingly, we have treated a juvenile court’s permanency order as final and appealable when it results in depriving a parent of the care, custody, or visitation with his or her child. See R.J.L. v. Lee County Dep’t of Human Res., 976 So.2d 455, 456 (Ala.Civ.App.2007) (appeal of a permanency order transferring “physical custody of ... the mother’s two-year-old son[] from the child’s foster parents in Alabama to the mother’s cousins ... in Watertown, New York”), and D.B. v. Madison County Dep’t of Human Res., 937 So.2d 535, 536 (Ala.Civ.App.2006) (appeal of a permanency order awarding legal and physical custody of the child to the maternal aunt).

In determining whether any juvenile-court order that is subject to revision is appealable, we consider that the focus should be on whether the order addresses crucial issues that, if not objected to by the aggrieved party, are thereafter precluded from appellate review. This court has long considered dependency determinations to be final and appealable, but there is nothing magic about dependency determinations as opposed to permanency orders. We hold that it is immaterial, for purposes of finality and appealability, that a juvenile court’s order emanates from the permanency-plan hearing rather than from the periodic review of a dependency determination. If the order addresses crucial issues that could result in depriving a parent of the fundamental right to the care and custody of his or her child, whether immediately or in the future, the order is an appealable order.

Turning to the permanency order in the present case, we consider that it addresses crucial issues with respect to both parents. The court approved the permanency plan for the mother as “reunification with a parent”; thus, the mother had no reason to appeal. However, had the permanency plan been termination of parental rights or permanent relative placement, the mother’s remedy would have been “to appeal the judgment entered after the permanency hearing.” T.V. v. B.S., 7 So.3d at 361 (Moore, J., concurring in the result). The permanency order in the present case addressed a crucial issue with respect to the father because it removed his entitlement to rehabilitation or reunification services provided by DHR. We hold that the permanency order was final and appealable with respect to both parties; therefore, there was no need for the juvenile court to certify the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., before we could entertain the father’s appeal.

Having determined that the father’s appeal is properly before us, we now consider the father’s argument that the juvenile court erred in deciding that § 12-15-312(c)(2) governed its ruling on DHR’s motion. Because the facts are not in dispute and we are presented with a pure question of law, our review is de novo. Ex parte Barnett, 978 So.2d 729, 731 (Ala.2007).

Applicability of § 12-15-312(c)(2)

The father argues that the juvenile court violated constitutional provisions against ex post facto laws when it applied § 12-15-312(c)(2), a part of the current AJJA, to a case pending before January 1, 2009, the effective date of the current AJJA. See United States Constitution, Art. I, § 10; Alabama Constitution of 1901, Art. I, § 22.

The record shows that the father made an argument to the juvenile court that § 12-15-312(c)(2) should not be applied to relieve DHR of the reasonable-efforts requirement. The record does not reveal, however, the basis of the father’s argument; consequently, there is nothing in the record to indicate that the father presented his ex post facto argument to the juvenile court. This court cannot consider arguments raised for the first time on appeal. Our review is restricted to the evidence and the arguments considered by the trial court; even constitutional issues may not be raised for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). See also Rule 4(a)(3), Ala. R.App. P. (any error asserted in the trial court may be asserted on appeal). Moreover, the prohibitions in both the United States Constitution and the Alabama Constitution against ex post facto laws apply only to criminal cases. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798); Reed v. Brunson, 527 So.2d 102, 114 n. 5 (Ala.1988).

The father makes no contention on appeal, other than the ex post facto argument, that the juvenile court misapplied § 12—15—312(c)(2) to the facts of this case. Accordingly, we affirm the judgment of the Limestone Juvenile Court.

AFFIRMED.

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

      . On March 25, 2009, the juvenile court certified the record as adequate in accordance with rule 28(A)(1)(a).


text:
    B.J.K.A. v. CLEBURNE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2080314, 2080315, and 2080316.
    Court of Civil Appeals of Alabama.
    July 2, 2009.

      Joshua J. Lane, Anniston, for appellant.
    Sharon E. Ficquette, gen. counsel, and Elizabeth Hendrix, staff atty., Department of Human Resources, for appellee.
   THOMAS, Judge.

B.J.K.A. (“the mother”) has four children, W.K., R.A.A., A.A., and W.R. In October 2003, before W.R. was born, the Cleburne County Department of Human Resources (“DHR”) took custody of the mother’s three older children after a caseworker responded to the mother’s residence to investigate a child-abuse/neglect report regarding hazardous conditions in the home. Once the worker arrived, she noticed that the mother appeared to be under the influence of an intoxicating substance because she was slurring her words and stumbled; the mother went to lie down after the worker arrived. The mother eventually tested positive for methamphetamine, and the children were removed from her care on October 26, 2003. DHR began providing services to the mother, including a psychological assessment, a drug assessment, drug screens, visitation with the children, and participation in the Family Options program. Although the mother was offered inpatient drug treatment, she chose not to avail herself of the treatment, opting instead for outpatient treatment. On April 24, 2004, the children were returned to her care.

On May 2, 2005, DHR again took the mother’s three older children into care. The mother had been arrested for possession of drug paraphernalia and was again abusing methamphetamine. DHR offered the mother additional services, including two more psychological assessments; counseling with Carrie Halladay, a licensed professional counselor; drug screens; visitation with the children; and participation in the Family Options program. The mother was again offered inpatient drug treatment, as recommended by Halladay, but the mother left an inpatient-treatment facility only three days into the program; instead, she continued to seek outpatient treatment as a way to resolve her substance-abuse issues.

The mother did not progress to recovery quickly. DHR initially filed a petition to terminate the parental rights of the mother during the children’s second stay in foster care. At some point during the children’s second stay in foster care, the mother developed a relationship with R.R. and became pregnant with W.R. After becoming pregnant, the mother became compliant with DHR requirements, causing DHR to have the termination petition first placed on the administrative docket and then dismissed as the mother maintained sobriety. The children were returned to placement with the mother in August 2007, and they were ultimately returned to her legal custody in November 2007.

In late March 2008, DHR received another report that the mother was abusing drugs. Although the mother refused to take a drug test at the time a caseworker came to her home to investigate the report, the children were removed from the home on April 17, 2008. The mother submitted to a drug test only after ordered to do so by the juvenile court in July 2008. The drug tests, both a urine screen and a hair-follicle test, were positive for methamphetamine.

DHR offered only drug screens and visitation services to the mother after the children were removed in April 2008. From the time the children were removed from her care in April 2008, DHR had planned to seek termination of the mother’s parental rights once the juvenile court determined that the children were dependent, which it did in July 2008. In September 2008, DHR filed petitions for termination regarding each of the mother’s three older children. After a trial, at which the mother failed to appear, the trial court entered separate judgments terminating the mother’s parental rights to the three older children.

“A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990).”

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004). A juvenile court’s judgment terminating parental rights must be supported by clear and convincing evidence. Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988). “ ‘[C]lear and convincing evidence’ is ‘[e]vi-dence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting Ala.Code 1975, § 6-11-20(b)(4)). The juvenile court’s factual findings in a judgment terminating parental rights based on evidence presented ore tenus are presumed correct. R.B. v. State Dep’t of Human Res., 669 So.2d 187 (Ala.Civ.App.1995).

Section 26-18-7(a), Ala.Code 1975, specifies the grounds for terminating parental rights:

“If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents.”

In deciding whether a parent is unable or unwilling to discharge his or her responsibilities to and for a child, the juvenile court may consider several factors, including:

“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.
“(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.”

Ala.Code 1975, § 26-18-7(a). In addition, when the child is not in the physical custody of the parent, the juvenile court shall consider, among other things:

“(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

Ala.Code 1975, § 26-18-7(b).

The testimony at trial was provided by three witnesses: Katie McMullen, the current DHR caseworker assigned to this matter; Carrie Halladay, the mother’s former counselor; and David Cunningham, the children’s counselor. McMullen’s testimony primarily outlined the history of the family’s involvement with DHR and the services offered to the mother during the first two periods her children were in foster care. McMullen also testified that the mother had informed McMullen that she had been arrested in Georgia and in Alabama since April 2008. McMullen indicated that the mother was not incarcerated for a long period on either arrest.

McMullen was questioned about why DHR had proceeded to termination so quickly and why it had not provided services intended to rehabilitate the mother after the children were removed from her care in 2008. McMullen pointed out that the children had been in foster care for more than 15 of the previous 22 months, thus requiring DHR to file a petition to terminate the mother’s parental rights unless it had a compelling reason not to do so. Ala.Code 1975, § 26-18-5(b). According to McMullen, “the clock” did not start over each time the children were returned to the mother and DHR could consider the other two periods the children had been in foster care when determining whether the mother could be rehabilitated or whether DHR should seek to terminate her parental rights. McMullen explained that DHR had determined that the mother had an established history of progressing sufficiently to permit reunification and then relapsing, requiring the children to be removed from her care again. McMullen stated that the social workers assigned to the family’s case had decided that it was time to achieve permanency for the children.

The mother’s former counselor, Carrie Halladay, testified that the mother had not originally been responsive to counseling during the first few months of treatment, which began in March 2006, during the second period the children were removed from the mother’s custody and were placed in foster care. Halladay testified that she was close to ending her treatment of the mother when the mother became pregnant with W.R. in July 2006 and began to work to meet her treatment goals. Halladay reported that the mother’s drug of choice was methamphetamine but that the mother had admitted to the abuse of several other illegal drugs, including cocaine, opiates, and marijuana, and that the mother also admitted the use of alcohol.

Halladay said that she had recommended long-term residential or inpatient treatment of 6 to 12 months for the mother, but, she said, the mother had resisted that treatment option. Halladay said that the mother had gone to one residential facility but had stayed only two or three days. According to Halladay, the mother then sought outpatient treatment at “Helping Partners,” which Halladay said the mother “sort of’ complied with. Halladay took issue with the mother’s failure to attend meetings as frequently as she should, commenting that the mother always had “an excuse” for missing her meetings.

Halladay opined that the mother’s relationship with W.R.’s father, R.R., provided her stability and assisted her in reaching and maintaining sobriety. According to Halladay, the mother’s previous relationships had been chaotic and sometimes abusive; Halladay noted that the mother had abused controlled substances with many of her boyfriends. The mother’s pregnancy, said Halladay, also motivated her to reach and maintain sobriety.

Halladay had diagnosed the mother with borderline personality disorder, which she explained as being hallmarked by “chaotic and intense interpersonal relationships and the inability to maintain them” and “impulse control issues,” which Halladay noted resulted in risky behaviors like the mother’s substance abuse. According to Halladay, there are no medications that can control borderline personality disorder. Instead, Halladay said, a person suffering with the disorder needs long-term psychotherapy. Halladay also explained that a person with the disorder can also suffer symptoms of treatable disorders like depression or anxiety disorders, which may be treatable by medication. Halladay said that she felt that the mother might suffer from attention deficit/hyperactivity disorder (“ADHD”) because the mother had several hallmarks of the disorder and because she had described the effect of methamphetamine as calming her and giving her the ability to focus and sleep, much like a prescription drug to treat ADHD would. Although Halladay mentioned to the mother the option of seeking prescription medication to treat ADHD from her personal physician, the mother chose not to do so. Instead, Halladay noted, the mother seemed to seek out methamphetamine as a way to self medicate.

Halladay said that the mother’s long-term, intermittent use of methamphetamine hampered her chance to maintain sobriety, noting that only five percent of methamphetamine addicts totally recover from their addiction. Halladay did admit that those addicts who maintain sobriety for more than a year have a higher likelihood of maintaining sobriety. According to Halladay, she felt that the mother’s chance of maintaining sobriety in October 2007, when she ended counseling, was about as good a chance as she would ever have. Halladay noted that the mother’s chances would have been better with inpatient treatment. When asked what she would have done if the mother had tested positive for methamphetamine in October 2007, Halladay replied that she would have ended her counseling of the mother and would have told the mother there was nothing more Halladay could do for her; she said that the only alternative she would have recommended at that point was long-term inpatient treatment.

When asked about the mother’s relapse, Halladay noted the high degree of relapse among methamphetamine users. The mother’s counsel described the stressors in the mother’s life before her relapse. He noted that the mother had faced several events that had a major impact on her life, including the demise of a relationship, taking care of four children, including a toddler, and caring for a disabled father whose- condition was worsening. Halladay commented that any stressor is an indicator for relapse.

On appeal, the mother argues that the juvenile court erred in terminating her parental rights when DHR had not provided her any services aimed at rehabilitating her and reunifying her family before filing its petition. There is no question that DHR is required to exert reasonable efforts toward the reunification of a parent and his or her child, except in limited circumstances in which a juvenile court determines that reasonable efforts are not necessary based upon enumerated grounds not relevant here. See Ala.Code 1975, § 12—15—65(g)(2) and (g)(3) (requiring reasonable efforts be made to prevent removal except in limited emergency circumstances and to reunite and reunify the family after removal) and § 12-15-65(m) (defining “reasonable efforts” as “efforts made to preserve and unify families,” “to prevent or eliminate the need for” removal, and “to make it possible for a child to return [home] safely”). The mother relies primarily on H.H. v. Baldwin County Department of Human Resources, 989 So.2d 1094 (Ala.Civ.App.2007) (opinion on return to remand) (authored by Moore, J., with two judges concurring in the result), in which this court reversed a judgment terminating a mother’s parental rights because DHR had failed to use reasonable efforts to rehabilitate her. Specifically, the mother in the present case argues that “[t]he circumstances in [her] previous cases cannot necessarily be extrapolated to predict failure in [her] present case.” She argues that DHR, like it did in H.H., failed to provide her any services to rehabilitate her because it had “predicted” her failure, in contravention of its duty, as described by the main opinion in H.H., to create a plan for rehabilitation and to provide those services tailored to accomplish that plan. H.H., 989 So.2d at 1105.

Indeed, the main opinion in H.H. indicated that § 26-18-7, which permits a juvenile court to consider a parent’s lack of effort or failure to adjust his or her circumstances when considering a petition to terminate parental rights,

“contemplates that a parent’s actual lack of effort is to be considered in relation to a reasonable reunification plan that is already in place. The statute negates any implication that the legislature intended that DHR would not have to formulate a reasonable reunification plan in cases in which DHR or the juvenile court concluded that the parent might not or even probably would not follow the plan.”

H.H., 989 So.2d at 1107. The main opinion in H.H. then determined that the juvenile court’s “conclusion] that the mother’s predicted failure to attempt to rehabilitate excused DHR from offering the mother any services directed toward eliminating her drug-abuse, housing, or income problems” was error. Id.

However, even assuming that H.H. were binding precedent, we disagree that it supports a reversal of the termination judgments in the present case. The main opinion in H.H. described DHR’s duty to create a plan to rehabilitate a parent. Id. at 1105. DHR must identify the problem or issue rendering the parent unable to discharge his or her parental responsibilities, develop a plan to rehabilitate the parent “tailored toward the particular problem(s),” and then, after making efforts to rehabilitate the parent, evaluate the success of its efforts at the conclusion of the rehabilitation process. Id. Based on the mother’s history in the present case, we cannot conclude that DHR failed, in any respect, to “seriously attemptf ] to rehabilitate” the mother. Id.

Although DHR did not make an attempt to further rehabilitate the mother when it removed the children from her care for the third time in April 2008, DHR had done everything that the main opinion in H.H. outlined in its attempts to rehabilitate the mother during the first two periods the children were placed in foster care. DHR had offered the mother psychological assessments, drug assessment, drug treatment, counseling, visitation with the children, and drug screens to monitor her rehabilitation. Twice the mother had managed to satisfy DHR that she had successfully rehabilitated herself and that she was capable of resuming the responsibilities of being a parent to her three older children. Sadly, after each reunification, the mother again returned to the abuse of methamphetamine, placing her children at risk and necessitating their removal from her custody both a second and a third time.

In no way is this mother like the mother in H.H., whose drug problem had not been addressed by any attempts by DHR to rehabilitate her. The mother in H.H. had only been offered drug screens, visitation, and bus tickets to assist her with her transportation needs. Id. at 1106. DHR offered the mother in the present case actual drug treatment. Although the mother did not participate in the recommended inpatient treatment, she did seek and complete an outpatient-treatment program and engaged in long-term counseling to address her substance-abuse issues.

As the main opinion in H.H. recognized, “ ‘[a]t some point, however, the child’s need for permanency and stability must overcome the parent’s good-faith but unsuccessful attempts to become a suitable parent.’ ” Id. at 1105 n. 5. (quoting M.W. v. Houston County Dep’t of Human Res., 773 So.2d 484, 487 (Ala.Civ.App.2000)). This case is rather like D.G. v. State Department of Human Resources, 569 So.2d 400 (Ala.Civ.App.1990), in which the mother’s two children had been in and out of foster care over a five-year period. As aptly stated by this court, “[a]t some point it becomes necessary to say that the children require a more permanent placement.” D.G., 569 So.2d at 403. More recently, in M.A.J. v. S.F., 994 So.2d 280, 291 (Ala.Civ.App.2008), this court held that the 12-month period between foster-care placement and the 12-month permanency hearing required by former Ala.Code 1975, § 12-15-62(c), is sufficient time within which the parents may “prove that their conduct, condition, or circumstances have improved so that reunification may be promptly achieved.” In M.A.J., we further held that the circumstances of a particular case should dictate the length of the rehabilitation period allowed a particular parent. M.A.J., 994 So.2d at 291 (quoting Talladega County Dep’t of Human Res. v. M.E.P., 975 So.2d 370, 374 (Ala.Civ.App.2007)) (“ ‘[T]he point at which the child’s needs overcome the parent’s right to be rehabilitated must be determined based on the facts of each individual case.’ ”).

DHR has expended much time and effort to rehabilitate the mother in the present case. We reject her characterization of DHR’s failure to resume efforts at rehabilitation that have proven futile as a failure to fulfill its statutory duty to make reasonable efforts to rehabilitate her and to reunify her family. As we have said before:

“Based on these circumstances, the juvenile court reasonably could have con-eluded that an adequate amount of time and effort had been expended in an attempt to rehabilitate the mother but that further time and effort would not help achieve the goal of family reunification in light of the mother’s lack of progress over a [five]-year period. We note that the law speaks in terms of ‘reasonable’ efforts, not unlimited or even maximal efforts. In this case, DHR used reasonable efforts to rehabilitate the mother, and the juvenile court did not err in concluding that it would be unreasonable to prolong those efforts.”

M.A.J., 994 So.2d at 292. Accordingly, we affirm the judgments terminating the parental rights of the mother.

AFFIRMED.

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

      . R.R. was given placement of W.R., pending a determination of his paternity; because the mother was still married to R.A., the father of R.A.A. and A.A., at the time W.R. was born, R.A. is W.R.'s legal father. See Ala.Code 1975, § 26-17-5(a)(1) (stating that a man married to the mother at the time of a child’s birth is presumed to be the child’s father).

      . The judgments also terminated the parental rights of each of the children's respective fathers, J.B. and R.A.; neither father appeals.

      . In fact, at the time of the trial, the children had been in foster care a total of 42 months of the last 60 months. In the case of A.A., who was born in August 2002, he had been in foster care more than half of his life.


author:
MOORE, Judge.
      THOMPSON, Presiding Judge,

text:
    Shirley P. HALE v. KROGER LIMITED PARTNERSHIP I.
    2071237.
    Court of Civil Appeals of Alabama.
    July 2, 2009.
    Certiorari Denied Aug. 21, 2009 Alabama Supreme Court 1081369.

      Patrick 0. Miller and Timothy P. Pittman of Dick Riggs Miller LLP, Huntsville, for appellant.
    John P. Burbach and Travis S. Jackson of Sirote & Permutt, P.C., Huntsville, for appellee.
   On Application for Rehearing.

MOORE, Judge.

This court’s opinion of March 6, 2009, is withdrawn, and the following is substituted therefor.

Shirley P. Hale appeals from a summary judgment entered by the Madison Circuit Court (“the trial court”) in favor of Kroger Limited Partnership I in a slip-and-fall action. We affirm.

Procedural History

On April 6, 2007, Hale sued Kroger, seeking damages for personal injuries he alleged he had received when he slipped and fell on spilled baby food in a store owned and operated by Kroger. Hale claimed that his injuries had resulted from the negligence and/or wantonness of Kroger. Kroger filed an answer denying liability and asserting various affirmative defenses. Kroger ultimately filed a motion for a summary judgment on all counts of the complaint, which the trial court granted on July 30, 2008. Hale appealed that summary judgment to the Alabama Supreme Court on September 10, 2008; that court transferred the appeal to this court on September 30, 2008, pursuant to Ala.Code 1975, § 12-2-7.

Issues

On appeal, Hale argues only that the trial court erred in entering the summary judgment on his negligence claim. He waives any claim that the trial court erred in entering the summary judgment on his wantonness claim. In regard to his negligence claim, Hale contends that he presented substantial evidence indicating that Kroger had constructive or actual knowledge of the spill before his fall such that it had a duty to safeguard him and/or that he presented substantial evidence indicating that Kroger was delinquent in not discovering and removing the hazardous condition.

Standard of Review

In Sizemore v. Owner-Operator Independent Drivers Ass’n, 671 So.2d 674 (Ala.Civ.App.1995), this court stated:

“The law regarding summary judgment is well established. A motion for summary judgment tests the sufficiency of the evidence. Such a motion is to be granted when the trial court determines that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, [Ala.] R. Civ. P. The moving party bears the burden of negating the existence of a genuine issue of material fact. Melton v. Perry County Board of Education, 562 So.2d 1341 (Ala.Civ.App.1990). Furthermore, when a motion for summary judgment is made and supported as provided in Rule 56, the nonmovant may not rest upon mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Rule 56(e), [Ala.] R. Civ. P. Proof by substantial evidence is required. Ala.Code 1975, § 12-21-12; Bass v. South-Trust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). The reviewing appellate court must apply the same standard utilized by the trial court when reviewing a summary judgment. Melton, supra. Additionally, the entire record is reviewed in a light most favorable to the nonmovant. Mann v. City of Tallassee, 510 So.2d 222 (Ala.1987).”

671 So.2d at 675.

Facts

In reviewing a summary judgment, this court is limited to a consideration of only the evidence submitted to the trial court when it ruled on the motion for a summary judgment. Bean v. State Farm Fire & Cas. Co., 591 So.2d 17, 20 (Ala.1991). In the present case, that evidence consisted solely of the affidavit of Jason Perry, the manager of the Kroger store on duty at the time of Hale’s fall, and the deposition testimony of Hale.

In his affidavit, Perry stated:

“My name is Jason Perry. I am employed at the Kroger store located at 2007 Drake Avenue, Huntsville, Alabama 35801. I am over the age of 19 and of sound mind. I make this affidavit on my own personal knowledge.
“I am familiar with Mr. Shirley P. Hale, who has brought a lawsuit against Kroger for allegedly falling on spilled carrots in the automatic checkout lane of the Kroger store where I work on Drake Avenue. I was present when the incident occurred on April 9, 2005, involving Mr. Hale.
“At the time of this incident, I was the Manager on Duty at the Drake Avenue store. I am familiar with Kroger’s sweep/spot mop procedure for the Drake Avenue store. Kroger has an employee make an inspection of the entire indoor premises of the store. This sweep/spot mop procedure is performed every hour at the store during Kroger’s operating business hours. On the day of the incident, Kroger’s sweep/spot mop procedure at the Drake Avenue store was performed every hour. Immediately prior to Hale’s fall a sweep/spot mop inspection was performed at 6:00 p.m., and there was not any substances or spilled carrots on the floor in or anywhere around the area of the automatic checkout lane where Mr. Hale allegedly fell.
“Neither Kroger nor I as its management had any knowledge or notice of any spilled carrots or other spilled substance on the floor at or near the area of the automatic checkout lane before the time of Mr. Hale’s fall. Mr. Hale informed me of the carrots on the floor after his fall. This is when I received knowledge of the carrots, and I immediately had an employee clean-up the area. Mr. Hale did not inform me that he was injured as he alleges in this lawsuit.”

Kroger submitted Hale’s entire deposition to the trial court. Those portions relevant to the disposition of the summary-judgment motion provide that, on April 9, 2005, Hale, who is 5-foot 7-inches tall and weighed 210 pounds and was 77 years old at the time, visited the Kroger store on Drake Avenue in Huntsville to purchase milk. Hale was wearing what he termed “boat shoes” that he had worn every other day for several years before the accident. The bottom of the shoes were made of rubber and appeared worn and smooth.

According to Hale, he was familiar with the layout of the Kroger store, having shopped there twice a week since 1977. After entering the store on April 9, 2005, Hale went straight down an aisle running parallel to a “square” of four automatic-checkout machines. He stopped at a sales display located at the junction of that aisle with the main cross-aisle of the store. Hale then proceeded to the rear of the store where the coolers were positioned in order to obtain a gallon of milk. Hale then returned to the sales display at the junction of the main cross-aisle and the aisle running next to the four automatic-checkout machines where he picked up a small box containing kitchen items from the sales display. Hale carried those items about 20 or 25 feet to the opening leading into the automatic-checkout area where he intended to serve himself. At that time, two Kroger personnel were in the area — a young female and an approximately B0-year-old male cashier. When he arrived in the area, Hale observed that other patrons were using all four automatic-checkout machines; however, the patron using the last automatic-checkout machine on the left just in front of the cashier appeared to be leaving the area.

As the patron completed her transaction, Hale began walking toward the machine. He was looking up toward the area to which he was walking; he was not looking at the floor. He did not notice any substance on the floor or any cone or other warning of any hazards in the area. No Kroger employee warned him of any spill. When he reached the area around the middle of the entrance to the automatic-checkout area between the first two automatic-checkout machines, Hale slipped and fell to the floor.

While Hale was on the floor, he did not immediately see anything on the floor. He overheard a woman, who he believed to be a customer, say that broken baby-food jars were on the floor. Hale testified that he then observed bright-orange and milky-white baby food laying on the floor in a shallow puddle spreading over an area approximately 18 inches by 15 inches. The puddle appeared to Hale to be fresh, and it had been smeared where Hale had fallen in it. Hale also saw the lid to one jar of baby food, which was still attached to part of the jar, in the middle of the puddle. Hale did not see any broken pieces of the jar.

According to Hale, after the fall, the young female Kroger employee came over, picked up the gallon of milk Hale had dropped during the fall, and offered to assist Hale to his feet. At that time, she informed Hale that “we’ve called for the mop squad.” As Hale was getting up, two young male Kroger employees arrived to clean up the area and to place a cone or warning sign at the site.

Hale testified that he proceeded to checkout. He asked the cashier for paper towels to clean off his leg. He noticed that he had “orange stuff’ on the bottom and side of his shoe and also on his right leg, which he assumed was strained carrots. He also discovered a milky-white substance on his right shoe and right leg up to his knee, which he identified as a different type of baby food. That discovery led Hale to conclude that he had slipped in a puddle made by two broken jars of baby food. Hale stated that his right knee had been cut during the fall and that he had bled as well.

Hale testified that he did not know how the puddle of baby food had gotten on the floor. When asked how long the puddle had been there, Hale responded as follows:

“A. [By Hale:] It had been there for several minutes.
“Q. [By counsel for Kroger:] Why do you know that?
“A. Because the girl said we sent for the mop squad, we called for the mop squad.
“Q. Well, I’m asking you this question. Immediately before you fell, okay?
“A. Yes.
“Q. Do you know how long that puddle and the broken jar lid had been there on the floor?
“A. No. I did not see the breaking of the jars.
“Q. So it is fair for me to say that you don’t know if any Kroger employee knew that it was on the floor at the time you fell?
“A. Yes.
“[Counsel for Hale]: Wait a second, are you saying yes, somebody did know about it or—
“[Hale]: Yes, because when the little girl, the young girl came to pick me up, she said we’ve sent for the mop squad.
“Q. [Counsel for Kroger]: So your testimony is as to this that after you fell and that girl came to see you from Kroger, okay?
“A. Yes.
“Q. That your testimony is that she noticed that you fell; is that right?
“A. Yes.
“Q. And then she told you we sent for the mop squad; is that right?
“A. Yes.
“Q. Anything else she said?
“A. No.
“Q. Other than that being said, is it fair for me to say you don’t know if any Kroger employee knew whether the substance was on the floor before your fall occurred; is that right?
“A. I can’t say.
“Q. And you don’t know how long it had been there on the floor before your fall, correct?
“A. No.
“Q. And you have no personal knowledge of any Kroger employee knowing how long it was there before you fell, correct?
“A. No.
“Q. Or if they knew it was there before you fell, correct?
“A. Yes, they knew.
“Q. You said yes, they knew, only from the statement this lady gave to you, correct?
“A. Yes.
“Q. And she was going to send the mop squad in after you fell, right?
“A. She said we’ve called the mop squad.
“Q. After your fall, correct?
“A. Yes.”

Hale further testified that he had not informed Kroger of the spill and that he did not know of any other customers who had notified Kroger of the spill before he fell.

Analysis

It is undisputed that Hale, as a patron of Kroger’s, was an invitee on its premises at the time of the accident. See Ex parte Kraatz, 775 So.2d 801 (Ala.2000).

“A premises owner owes his invitees a duty to keep the premises in a reasonably safe condition and to warn them of any ‘defects and dangers that are known to the landowner but are unknoim or hidden to the invitee[s].’ Prentiss v. Evergreen Presbyterian Church, 644 So.2d [475] at 477 [ (Ala.1994) ] (emphasis added); and Howard v. Andy’s Store for Men, 757 So.2d 1208, 1210 (Ala.Civ.App.2000). A premises owner, however, owes no duty to protect invitees from all conceivable dangers they might face while on the premises because ‘“[t]he owner of a premises ... is not an insurer of the safety of his invitees ... and the principle of res ipsa loquitur is not applicable. There is no presumption of negligence which arises from the mere fact of an injury to an invitee.” ’ Ex parte Harold L. Martin Distrib. Co., 769 So.2d 313, 314 (Ala.2000) (quoting Tice v. Tice, 361 So.2d [1051] at 1052 [ (Ala.1978) ]). See also Kmart Corp. v. Bassett, 769 So.2d 282, 286 n. 4 (Ala.2000) (holding that the principle of res ipsa loquitur does not apply to premises-liability claims).
“Instead, ‘“[t]he entire basis of an invitor’s liability rests upon his superior knowledge of the danger which causes the invitee’s injuries. Therefore, if that superior knowledge is lacking, as when the danger is obvious, the invitor cannot be held liable.”’ Jones Food Co. v. Shipman, 981 So.2d 355, 363 (Ala.2006) (quoting Quillen v. Quillen, 388 So.2d 985, 989 (Ala.1980)). See also Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1194 (Ala.2002); and Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 63, 173 So. 388, 391 (1937).”

Edwards v. Intergraph Servs. Co., 4 So.3d 495, 503 (Ala.Civ.App.2008).

In Winn-Dixie Store No. 1501 v. Brown, 394 So.2d 49 (Ala.Civ.App.1981), this court stated:

“As the burden of showing negligence rests with the plaintiff, it is necessary to prove: (a) that the foreign substance slipped upon was on the floor a sufficient length of time to impute constructive notice to the defendant, or (b) that the defendant had actual notice of the substance’s presence on the floor, or (c) that the defendant was delinquent in not discovering and removing the foreign substance. In the absence of such proof, the plaintiff has not made out a prima facie ease that the defendant was negligent in the maintenance of its floors. S.H. Kress & Co. v. Thompson, 267 Ala. 566, 103 So.2d 171 (1957).”

394 So.2d at 50. In the context of a motion for a summary judgment, the movant has the burden of proving such facts as would negate an essential element in the nonmovant’s claim or demonstrating that the nonmovant does not have sufficient evidence to support an essential element of his or her claim. Ex parte General Motors, 769 So.2d 903, 909 (Ala.1999).

A. Constructive Knowledge

A storekeeper is charged with knowledge of a hazard if the evidence shows that the hazard has existed on the premises for such a length of time that a reasonably prudent storekeeper would have discovered and removed it. S.H. Kress & Co. v. Thompson, 267 Ala. 566, 570, 103 So.2d 171, 174 (1957). Direct evidence of the length of time the offending substance has remained on the floor is not required. Cash v. Winn-Dixie Montgomery, Inc., 418 So.2d 874, 875 (Ala.1982).

“Under Cash, supra, it is permissible to allow the trier of fact to infer the length of time that the substance had remained on the floor from evidence regarding the nature and condition of the substance. ‘Where the substance is dirty, crumpled, or mashed, or has some other eharacter-istic[, e.g., is “sticky,”] that makes it reasonable to infer that it has been on the floor a long time, the defendant may be found to have a duty to discover and remove it.’ Vargo [v. Warehouse Groceries Mgmt., Inc., 529 So.2d 986, 986 (Ala.1988) ].”

Maddox v. K-Mart Corp., 565 So.2d 14, 17 (Ala.1990).

Kroger presented concrete evidence negating any inference that the spill had existed for such a long period that Kroger should have detected and removed it. Perry’s affidavit testimony establishes that, at 6:00 p.m., Kroger had performed its hourly inspection of the area and had found no evidence of a spill. Only minutes later, Hale, following several other patrons into the area, slipped and fell in what he described as a “fresh” puddle of baby food that his foot had smeared. That evidence indicates that the spill had occurred shortly before the accident and that it had not existed for such a length of time that Kroger should have detected the hazard and taken action to safeguard its patrons.

Hale argues that his deposition testimony and the circumstantial evidence establishes a genuine issue of material fact regarding whether the baby-food spill had existed for a sufficient length of time to impart knowledge of it to Kroger. Specifically, Hale points to his testimony that the spill “had been there for several minutes,” that it had spread into a 15- by 18-inch puddle, and that two Kroger employees were in the area of the spill. Hale argues that, viewing this evidence in a light most favorable to him, it may be inferred that the spill existed long enough for someone from Kroger to notice it and to have already picked up most of the shards of jar glass. We do not agree.

Although at one point in his deposition Hale testified that the spill had been there for several minutes, he later clarified that he did not actually know when the spill had occurred.

“When reviewing an excerpt of deposition testimony to determine whether it creates a genuine issue of material fact, this court does not consider it abstractly, independently, and separately from the balance of the deposition testimony. See Malone v. Daugherty, 453 So.2d 721 (Ala.1984). Rather, this court must consider the context of the testimony as well as the remainder of the deposition testimony in order to determine if the testimony as a whole creates a reasonable inference to support the proponent’s position. See Hines v. Armbrester, 477 So.2d 302 (Ala.1985); and Alabama Power Co. v. Smith, 409 So.2d 760 (Ala.1982).
“Moreover, the deposition testimony as a whole must satisfy the ‘substantial evidence’ standard by carrying ‘such weight and quality that fair-minded persons in the exercise of impartial judgment [could] reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d [870] at 871 [ (Ala.1989) ]. See Ala.Code 1975, § 12-21-12. A nonmovant cannot rely on deposition testimony that is internally inconsistent and contradictory to create a genuine issue of material fact. See Caskey v. Colgate-Palmolive Co., 438 F.Supp.2d 954, 975 n. 6 (S.D.Ind.2006) (citing Buie v. Quad/Graphics, Inc., 366 F.3d 496, 505 n. 5 (7th Cir.2004), in turn citing United States v. 1980 Red Ferrari, 827 F.2d 477, 480 n. 3 (9th Cir.1987)). Deposition testimony may be disregarded at the summary-judgment stage if it is so inconsistent that it could not be believed by any reasonable person. See Jeffreys v. Rossi, 275 F.Supp.2d 463, 476-77 (S.D.N.Y.2003). Although this rule ordinarily applies when a party submits an affidavit that is inconsistent with prior deposition testimony, it may also be applied to testimony from the same deposition. See Continental Eagle Corp. v. Mokrzycki, 611 So.2d [313] at 317 [ (Ala.1992) ] (holding that contradictory deposition testimony would be considered when deponent adequately explained conflict).”

McGough v. G & A Inc., 999 So.2d 898, 905-06 (Ala.Civ.App.2007). Not focusing on the excerpt from Hale’s deposition in which he testified that the spill had existed for “a few minutes,” but instead viewing the entirety of Hale’s testimony, it is apparent that any statement Hale made as to the actual length of time the spill existed is mere conjecture or surmise, which this court may not consider as substantial evidence in order to defeat a motion for a summary judgment. See Casey v. McConnell, 975 So.2d 384 (Ala.Civ.App.2007).

Hale next argues that the size and location of the puddle imparted constructive knowledge to Kroger of its presence. In Maddox v. K-Mart Corp., supra, our supreme court found a “scintilla” of evidence indicating that a puddle had been left on the floor long enough to infer that K-Mart had constructive knowledge of its existence. Although Hale claims that the Maddox court based its conclusion on the size of the puddle, which was about two feet wide as set out in the facts of the case, 565 So.2d at 16, in actuality the court relied on the fact that the puddle appeared to be “ ‘Coke’ and was ‘sticky’ and ‘looked like it was trying to dr/ ” as “evidence from which the trier of fact could infer that the substance had been there long enough that the defendant’s employees should have known it was there.” 565 So.2d at 17. The supreme court did not rely on the size of the puddle.

Nevertheless, in Ex parte Wal-Mart Stores, Inc., 806 So.2d 1247 (Ala.2001), in distinguishing that case from Maddox, the supreme court noted that, among other evidence, the size of the spill in Maddox presented a scintilla of evidence of constructive knowledge. 806 So.2d at 1252. That excerpt suggests that the size of the spill can be a factor in assessing whether a reasonable storekeeper should have discovered the hazard in time to protect the patrons of the store.

However, the opinion in Wal-Mart clarifies that other factors beyond the size of the spill should be considered. The supreme court noted in Wal-Mart that the spill at issue in Maddox had occurred “ ‘near the front customer service desk,’ that is, in a generally staffed area of the store.” 806 So.2d at 1252. The supreme court also noted that the plaintiff in Maddox had proved that the substance in which she stepped had been drying and that it had eventually “ ‘dried stiff ” on the plaintiffs clothing. Id. According to the Wal-Mart court, it was the combination of those factors that led the supreme court to reverse the summary judgment for the storekeeper in Maddox.

In this case, the puddle made by the spill occurred at the entrance of the automatic-checkout area. As the term suggests, that area was reserved for customers to serve themselves without the aid of Kroger personnel. Hale did not present any evidence indicating the number of employees regularly assigned to that area, but he did present evidence indicating that one cashier was stationed at the left end of the area and another female employee was nearby. As to those employees, Hale did not present any evidence indicating the distance of their work stations from the spill or any evidence indicating their ability to observe the spill from their locations. Hale did not present any evidence indicating that the spill, due to its size or any other factor, would have been easily or immediately noticeable to those employees from their vantage points.

As earlier indicated, Hale testified that the spill appeared “fresh” to him. That testimony, along with Perry’s affidavit testimony stating that no spill had been discovered only minutes earlier during the inspection process, indicates that the spill had not been present for a long period before the accident. Given the absence of any evidence indicating that the size and location of the spill should have alerted the Kroger employees in the area to its presence in the relatively short period between the spill and Hale’s fall, we conclude that Hale did not present substantial evidence, i.e., “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved,” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see also Ala.Code 1975, § 12-21-12(d), indicating that Kroger had constructive knowledge of the hazard.

B. Actual Knowledge

Kroger likewise presented evidence indicating that it did not have prior actual knowledge of the baby-food spill. Perry testified in his affidavit that Kroger had first learned of the existence of the spill after Hale fell. In response, Hale argues that he presented substantial evidence indicating that Kroger actually knew of the spill. First, Hale contends that the circumstantial evidence indicates that a Kroger employee had already partially cleared the spill. Second, Hale maintains that the statement of the young female employee indicates that Kroger already knew of the spill before his fall.

Hale’s testimony does not create an inference that a Kroger employee observed the spill and initiated clean-up. Hale testified merely that he did not see any shards of glass other than the large part of the jar attached to the lid in the middle of the puddle of baby food. Hale argues that, from that bare information, a reasonable juror could infer that someone had cleared parts of the broken baby-food jar and that, based on that inference, a reasonable juror could further infer that the “someone” was a Kroger employee. However, under Alabama law, “ ‘ “[a]n inference cannot be derived from another inference.” ’ ” Systrends, Inc. v. Group 8760, LLC, 959 So.2d 1052, 1074 (Ala.2006) (quoting Khirieh v. State Farm Mut. Auto. Ins. Co., 594 So.2d 1220, 1224 (Ala.1992), quoting in turn Malone Freight Lines, Inc. v. McCardle, 277 Ala. 100, 107, 167 So.2d 274, 281 (1964)).

As to the young female employee’s statement that “we’ve called the mop squad,” neither Hale nor Kroger presented any direct evidence indicating when that call had been made. However, Perry’s affidavit testimony indicates that the call could not have been made before the accident because “neither Kroger nor [Perry] as its management” actually knew of the spill before Hale’s fall. Hale testified that he took the statement to mean that the mop squad had been called to clean up the spill before his accident. Hale argues that our standard of review, which requires us to view the facts in a light most favorable to the nonmovant, compels us to side with his version of the events, rendering summary judgment inappropriate.

“ ‘ “[W]hen the facts, although undisputed[,] are such that reasonable men may reasonably and conscientiously arrive at opposite conclusions from them, such facts present, not a question of law for the court, but a question of fact for the determination of the jury.” ’ ” Cooper v. State, 393 So.2d 495, 497 (Ala.Crim.App.1981) (quoting Pate v. State, 32 Ala.App. 365, 366, 26 So.2d 214, 215 (1946), quoting in turn Stearne v. State, 4 Ala.App. 154, 155, 58 So. 124, 124 (1912)); see also Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So.2d 818 (1975) (holding that when reasonable persons could differ on inferences to be drawn from undisputed facts, summary judgment is inappropriate). Whether that rule should be applied to this case depends on whether Hale’s understanding that the mop squad had been called before his accident is a “reasonable” inference, which Hale conceded at oral argument is a question of law to be decided by this court.

An inference is a conclusion derived by reasoning from premises or evidence. Payne v. State, 683 So.2d 440, 452 (Ala.Crim.App.1995). “An ‘inference’ is a reasonable deduction of fact, unknown or unproved, from a fact that is known or proved.” Khirieh v. State Farm Mut. Auto. Ins. Co., 594 So.2d at 1224 (citing Malone Freight Lines, Inc. v. McCardle, 277 Ala. 100, 167 So.2d 274 (1964)). A reasonable inference requires an “explanation that is both consistent with the evidence and agreeable to common sense.” Payne, 683 So.2d at 453. Hale presented no evidence from which he or a juror could reasonably infer that the Kroger employee meant that the mop squad had been called to the scene before his fall. Hale did not present any evidence indicating where the mop squad was located when it was called, the method by which the mop squad was called, or the length of time it would have taken the mop squad to travel to the site of the accident. Hale testified that the mop squad arrived when he was getting to his feet, but he did not testify as to how long that took. Nothing about the circumstances of the mop squad’s arrival indicates that the mop squad must have already been en route to the site before the fall occurred.

Hale bore the burden of presenting “substantial evidence” indicating that Kroger actually knew of the spill before he slipped and fell. Hale’s mere belief that Kroger actually knew of the spill, based solely on the naked statement of the Kroger employee that “we’ve called the mop squad” and without any other supporting direct or circumstantial evidence, does not constitute sufficient evidence to withstand Kroger’s motion for a summary judgment.

C. Delinquent Inspection

Finally, Kroger presented evidence indicating that it was not delinquent in failing to discover and remove the baby-food spill. Perry testified in his affidavit that Kroger had implemented a sweep/spot mop inspection procedure by which employees inspected the store during business operating hours on an hourly basis. Perry further attested that an inspection had been performed according to that procedure at 6:00 p.m. and that the spill had not been detected as a result of the inspection.

In response, Hale argues that the mere presence of the spill creates a genuine issue of material fact regarding whether Kroger’s inspection was adequate based on the holdings in King v. Winn-Dixie of Montgomery, Inc., 565 So.2d 12 (Ala.1990), and Strahsburg v. Winn-Dixie Montgomery, Inc., 601 So.2d 916 (Ala.1992). Those two cases do not establish the rule of law Hale posits. Rather, under Alabama law, the mere presence of an offending substance does not automatically give rise to liability. See Brown, supra. Hale has not presented any evidence to indicate that Kroger’s sweep/spot mop inspection procedure was inadequate or that it was performed inadequately on the day of his fall. Without such evidence, he has failed to present a genuine issue of material fact regarding Kroger’s alleged delinquency in failing to discover and remove the baby-food spill.

For the foregoing reasons, we affirm the summary judgment entered by the trial court.

APPLICATION GRANTED; OPINION OF MARCH 6, 2009, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

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

THOMPSON, Presiding Judge,

dissenting.

As the main opinion notes, our standard of review of the trial court’s summary judgment requires that we view the evidence in the light most favorable to Shirley Hale as the nonmovant. See Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990). I agree with the main opinion that, even under that view of the evidence, Hale failed to make out a genuine issue of material fact as to whether Kroger employees had constructive notice of the baby-food spill that caused Hale’s alleged slip-and-fall injuries. I disagree with the main opinion’s conclusion, however, that the evidence before the trial court, when viewed in the light most favorable to Hale, failed to establish a genuine issue of material fact as to whether Kroger employees had actual notice of the baby-food spill. Simply put, I believe that a jury presented with the evidence that was before the trial court could reasonably conclude that Kroger employees were aware of the baby-food spill before Hale slipped in it. Therefore, I must respectfully dissent.

      . Maddox involved an incident that occurred on November 29, 1985. Effective June 11, 1987, the scintilla rule was abolished in favor of the substantial-evidence rule. See §12-21-12, Ala.Code 1975.