text:
    Cyndi SINGLETON and Steven Singleton v. PROTECTIVE LIFE INSURANCE COMPANY and AmSouth Bank.
    1012405.
    Supreme Court of Alabama.
    March 7, 2003.

      Earl P. Underwood, Jr., of Rice, Adams, Underwood & Associates, P.C., Anniston, for appellants.
    W. Michael Atchison, Anthony C. Harlow, and Alfred H. Perkins, Jr., of Starnes & Atchison, L.L.P., Birmingham, for ap-pellee Protective Life Insurance Company.
    Larry B. Childs of Walston, Wells, Anderson & Bains, L.L.P., Birmingham; and Jerry Oglesby of Sides, Oglesby, Held & Dick, Anniston, for appellee AmSouth Bank.
   HOUSTON, Justice.

The plaintiffs, Cyndi and Steven Singleton, appeal from the trial court’s summary judgment in favor of the defendants Am-South Bank and Protective Life Insurance Company. We affirm.

I.

The Singletons obtained three loans from defendant AmSouth Bank (“Am-South”) from July 1995 to February 1997. In connection with each loan, the Singletons purchased credit-life insurance issued by defendant Protective Life Insurance Company (“Protective”). The Singletons repaid all the loans, and no claim was ever filed on the credit-life insurance.

A. The Singletons’ Complaint

In May 1998, the Singletons sued Am-South and Protective in the Calhoun Circuit Court alleging that they were sold more credit-life insurance than they needed and seeking to represent a class of similar borrowers charged for alleged excessive credit-life insurance. In their complaint, the Singletons noted that their claims were based on McCullar v. Universal Underwriters Life Insurance Co., 687 So.2d 156 (Ala.1996), where a plurality of this Court held that Alabama’s Mini-Code, § 5-19-1 through § 5-19-32, Aa.Code 1975, prohibits the sale of credit-life insurance in an amount greater than the unpaid balance of the loan plus any accumulated interest. The complaint alleged, in pertinent part, as follows:

“FACTUAL ALLEGATIONS
“15. The amount of credit life insurance sold by [AmSouth and Protective] to the [Singletons] in these instances and the premiums charged for that credit life insurance were in direct violation of the Department of Insurance regulations in that the amount of insurance sold at all times exceeded the approximate unpaid balance of the loan. As a result, the premiums charged for said insurance exceeded the maximum allowed by the regulations of the Aabama Department of Insurance.
“CAUSES OF ACTION
“COUNT I
“FRAUDULENT SALE OF EXCESSIVE CREDIT LIFE INSURANCE
“19. [AmSouth and Protective] were guilty of fraud, deceit, suppression of material facts and/or misrepresentation to the [Singletons] in the sale of this credit life insurance in that [AmSouth and Protective] represented to [the Singletons] that the amount of credit life insurance sold was the amount needed; [AmSouth and Protective] represented to [the Singletons] that they were authorized to sell to them that amount of credit life insurance; [AmSouth and Protective] failed to disclose to [the Singletons] that the amount of credit life insurance sold was more than was needed to pay off the balance of the loan and was in violation of the Department of Insurance regulations governing the sale of credit life insurance and the Alabama ‘Mini-Code.’ [The Singletons] did not discover this fraud until May, 1998. [The Singletons] relied on these misrepresentations to their detriment by purchasing more credit life insurance than was needed or allowed and incurring additional premiums for the purchase of the excessive amount of credit life insurance.
“20. The fraud committed by [Am-South and Protective] in this cause was negligently, recklessly, or intentionally committed, and [AmSouth and Protective] consciously or deliberately engaged in fraud which was gross, oppressive or malicious and/or committed with the intent to deceive. In fact, the policy by its own terms would never pay the amount for which it was sold.
“COUNT II
“MINI-CODE VIOLATION IN SALE OF EXCESS CREDIT LIFE INSURANCE
“22. On the dates and occasions complained of, [AmSouth and Protective] were required to make an accurate disclosure of the annual percentage rate, finance charge and other terms of the [Singletons’ agreement]. These disclosures were required under the Aabama ‘Mini-Code’ and other applicable law.
“28. A portion of said [disclosed premiums were] for the excess insurance as aforesaid. That portion of the credit life insurance premium paid by the [Singletons] is a charge payable directly or indirectly by [the Singletons] and it was imposed directly or indirectly by [Am-South and Protective] as incident to the extension of credit to [the Singletons].
“29. The portion charged by [Am-South and Protective] for the excess credit life insurance was not a premium for permissible insurance as provided by the Alabama ‘Mini-Code,’ but a finance charge.
“31. [AmSouth and Protective] had a duty to fully and accurately disclose to [the Singletons] the terms of the aforementioned credit transactions and willfully failed to do so.
“32. The entire charge for credit life insurance was listed and represented to [the Singletons] as part of the ‘Amount Financed’ and it was not disclosed that the portion of the premium for excess Credit Life Insurance was actually a Finance Charge. The fact was intentionally suppressed and misrepresented by [AmSouth and Protective].
“36. That portion of the credit life insurance premium charged for excess credit life insurance constitutes an excess finance charge.
“37. The excess finance charge made by [AmSouth and Protective] was intentional and part of a fraud, artifice and conspiracy by [AmSouth and Protective] to increase their profits by making excess charges.
“COUNT III
“CIVIL CONSPIRACY
“39. [AmSouth and Protective] did, by their actions, join together in a common scheme or design for the purpose of effectuating an intended plan of charging the [Singletons] and class members excessive insurance premiums and interest thereon through fraudulent misrepresentations and conduct and by concealing from the [Singletons] and class members facts concerning same.

The complaint also contained counts alleging negligent hiring and supervision and sought to have the Singletons named as class representatives of a putative class action on behalf of other borrowers who were “charged for excessive credit life insurance of the type involved in this transaction.”

In their complaint, the Singletons made clear that their claims were based on the allegation that they were sold excessive credit-life insurance because, they say, the amount of insurance was based on the total face amount of the loan rather than on the remaining unpaid balance of the loan. The Singletons also alleged that Kathy Cook, an AmSouth employee, made misrepresentations to them about the credit-life insurance.

“3. Kathy Cook, as employee and/or agent and/or officer and/or representative for both defendants, AmSouth Bank of Alabama (‘AmSouth’) and Protective Life Insurance Company (‘Protective’), while in the line and scope of her employment ... defrauded the [Singletons] by selling excessive credit life insurance as alleged in Count I of the original complaint.
“4. The Civil Conspiracy Count, Count III, is based on the fraud alleged in Count I wherein [AmSouth and Protective] sold excessive credit life insurance to [the Singletons] and class members.
“5. The overt act of [AmSouth and Protective] upon which the Civil Conspiracy Count is based is the representation that the credit life insurance was sold in an amount that would pay off the loans in the event of death. This was a misrepresentation because the amount sold was more than what was needed to pay off the loan. The amount upon which the premiums were based included not only the amount financed, which would have been enough insurance to pay off the loan, but also included the finance charge. Said another way, the premiums were based on ‘total payments’ (Amt-Financed + Finance Charge) but should have been based only on the amount financed (See McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156 [(Ala.1996)]. [The Singletons] and class members were damaged in that they expended extra amounts of money to pay for the excessive insurance, and were caused to pay extra interest because the cost of the excessive insurance was financed.”

It is clear from these pleadings that the Singletons’ cause of action was based solely on the allegation that Protective and AmSouth, through Kathy Cook, represented to them that the amount of credit-life insurance they purchased was the amount necessary to pay off the respective loans. Further, the Singletons claim that this representation was false because, they say, AmSouth and Protective based the amount of credit-life insurance sold to the Singletons on the total face amount of the loan rather than on the unpaid balance of the loan. Thus the Singletons’ cause of action clearly appears to be based on our plurality decision in McCullar v. Universal Underwriters Life Insurance Co., 687 So.2d 156 (Ala.1996).

The plaintiff in McCullar alleged that the defendants, a car dealership and a finance company, sold her more credit-life insurance than was necessary to pay off her loan. Specifically, the plaintiff alleged that the defendants sold her an amount of credit-life insurance that at all times exceeded the approximate unpaid balance of the loan. The plaintiff also alleged that the defendants were guilty of fraud because, she said, they represented to her that the amount of credit-life insurance sold was the amount needed and that they were authorized to sell her that amount, and they failed to disclose that the amount of insurance sold to her was more than was necessary to pay off the unpaid balance on the loan.

It was undisputed that the defendants in McCullar had based the amount of credit-life insurance on the face amount of the loan plus the total precomputed interest on the loan. A plurality of this Court held that the applicable banking regulations did not permit the defendants to base the amount of credit-life insurance on the total face amount of the loan, but on the “unpaid balance of the loan” plus any accumulated interest. 687 So.2d at 163-64.

The Singletons’ complaint, which cited McCullar, clearly demonstrated that the Singletons’ claims were based on McCullar and the allegation that AmSouth and Protective sold them more credit-life insurance than they needed.

B. AmSouth’s and Protective’s Motions for a Summary Judgment

By the time AmSouth and Protective filed their separate motions for a summary judgment in August 2000, it was clear that the Singletons’ claims were without merit and were not supported by any evidence before the trial court. The applicable State Banking Department regulation in force at the time of the loans to the Singletons provided as follows:

“(c) Credit Life Insurance.
“1. The maximum rate for single premium decreasing term credit life insurance shall not exceed eighty cents ($0.80) per hundred ($100) per annum.
“2. Level term life coverage may be written on single repayment contracts at a rate not in excess of one dollar and sixty cents ($1.60) per hundred ($100) per annum.
“3. Dual credit life insurance coverage may be written on both the principal debtor and one co-signer to an obligation. The maximum rate for such coverage shall not exceed an amount equal to 150% of the premium rates shown above.
“4. Rates for premiums payable on other than single premium basis shall not exceed the actuarial equivalent of the rates specified above.”

(Emphasis added.)

AmSouth and Protective presented the loan agreements — one signed by the Singletons and two signed by Mr. Singleton alone. It is undisputed that the premiums were payable on an “other than single premium basis.” The agreements disclosed how the credit-life insurance premiums were calculated and refuted key allegations of the Singletons’ complaint. Each agreement provided as follows:

“Optional Credit Insurance. Unless this agreement is payable on demand, if you want and if you qualify, we will obtain credit life insurance on you. Credit life insurance is not required to obtain credit and will not be provided unless you sign and agree to pay the additional cost. By signing for credit insurance, you certify that each person to be insured is in good health and that Borrower’s age (if insured) is [ ] and Co-Borrower’s age (if insured) is [ ]. We will not get credit life insurance for you unless you sign here.”

Each agreement also set forth an estimated total premium for credit-life insurance. The estimated premium for each note was $289.81 (loan no. 9000198411), $34.47 (loan no. 9000280520), and $15.47 (loan no. 9000509338). As explained in the agreement, those premium figures were estimates; they were not necessarily the premiums the Singletons would actually be charged. Each loan agreement executed by the Singletons or by Mr. Singleton contained the following explanations and disclosures regarding credit-life insurance:

“Credit Life Insurance. If you have elected to purchase credit life insurance by signing the credit life insurance election on the other side of this agreement, and the premiums for the credit life insurance are not included in the amount financed, you agree to the following: Only the life of each Borrower and Co-Borrower who signed the Credit Life Insurance Election is insured. The estimated credit life insurance premium for the scheduled term of this note is shown in the credit life insurance block on the other side of the note: However, the actual credit life insurance premium is calculated on the actual unpaid balance of principal and accrued interest due under this note from time to time, and may vary depending on whether you make your payments early or late. If paragraph (a) under the section entitled ‘How You Will Repay Us’ on the other side of this agreement applies to your loan, if the principal of your loan is payable in a single payment, and if you did not pay the credit life premium in cash when you signed this agreement, then the credit life insurance premium is included in the Amount Financed in both principal and interest to maturity are covered by the credit life insurance, if paragraph (b) of that section applies to your loan then the credit life insurance premium is not financed and is not a part of the Amount Financed, and you agree to pay a premium for credit life coverage, payable whenever interest is due, computed at the rate of $.004.3836 per day for one insured or $.0065753 for two insureds (or any lesser sum for either number of insured that we may charge from time to time instead) for each $100 of the unpaid balance of principal and accrued interest due under this note from day to day. The credit life insurance covers both principal and interest on the loan.”

(Emphasis added.)

It is undisputed that for each loan, paragraph (b) of the section of the loan agreement entitled “How You Will Repay Us” was applicable. Under this repayment option the loans were to be repaid in installments, and the credit-life insurance premiums were not financed and were not a part of the “Amount Financed.” According to the agreements, the coverage and premiums were to be based on the unpaid balance of principal and accrued interest.

Mrs. Singleton’s deposition testimony acknowledged that she understood that the premiums charged on the loan she had jointly with Mr. Singleton were not charged on the total face amount of the loan plus precomputed interest (or “total of payment”), but were charged, instead, on the “balance of principal and accrued interest”:

“Q. Well, let’s see what it says about credit-life insurance. Would you look at — We’re looking at Defendant’s Exhibit 2 which is the only one of these agreements that you signed, right?
“A. Of these particular—
“Q. Of these three that we’re sued on in this case.
“A. Correct.
“Q. Why don’t you just take a minute and read what it says about credit-life insurance.
“A. Okay.
“Q. Have you read it?
“A. I have.
“Q. And you’re a person who can read and understand a contract, are you not?
“A. I just read it.
“Q. Can you understand a contract like this?
“A. To the best of my knowledge, it’s saying that credit life is calculated in this way and will be paid either up front or in the loan.
“Q. Right. In fact, this tells you exactly how the premiums for this credit-life insurance were calculated, doesn’t it?
“A. It would seem as though.
“Q. And it tells you that the premiums were not calculated on the total of payments, doesn’t it?
“A. It says, ‘balance of principal and accrued interest.’ ”

Additionally, AmSouth and Protective submitted detailed loan histories recording the Singletons’ loan payments and the amount of the credit-life premiums that were periodically charged. AmSouth and Protective submitted the affidavit of John Eubank, a vice president in AmSouth’s lending division, which stated the rates charged for credit-life premiums at the time the loans were made to the Singletons. Furthermore, AmSouth and Protective submitted the affidavit of Michael Presley, a vice president and actuary with Protective. After reviewing the loan histories, which evidenced all payments made on the policies as well as all interest, principal, and insurance charges, Mr. Presley stated in his affidavit:

“With regard to Loan No. 9000198411, dated July 25, 1995, which contained insurance on the lives of Steven Singleton and Cyndi Singleton, I have reviewed the loan history and confirmed that the credit life insurance premiums charged were charged on an unpaid principal balance using a daily rate of .0059178 dollars for each $100.00 of unpaid balance of principal. Furthermore, the credit insurance premiums on the remaining two notes, # 9000280520 and # 9000509338, which contained insurance on the life of Steven Singleton, appear to have been calculated using a daily rate of .0039452 for each $100.00 of unpaid principal balance.
“As stated above, the premiums for the three loans in question were all calculated on the unpaid balance of the loans. None of the premiums were calculated on the gross amount of the loan plus interest. At no time did the credit life insurance for either of these loans provide any more coverage than was required to pay off the balance of the loan.
“The credit life insurance premium rates charged on each of the loans attached hereto were in full compliance with the Alabama Banking Department Regulations in the rates applied to each of these loans, specifically .0059178 for two insured and .0039452 for one insured, per $100.00 of outstanding principal per day, are the equivalent of $1.20 per thousand per month and $1.80 per thousand per month as evidenced below.
“1.80/1000 = .18/100
.18 x 12 months - 365 = .0059178
“1.20/1000 = .12/100
.12 x 12 months ^ 365 = .0039452”

Finally, AmSouth and Protective presented the Singletons’ own deposition testimony to refute the allegations that AmSouth’s agent, Kathy Cook, made fraudulent misrepresentations that the Singletons relied on. In fact, the Singletons admit Kathy Cook made no misrepresentations. Cyndi Singleton testified:

“Q. I want to ask the question this way one time and then I’ll get into more detail. What statement, if any, did Kathy Cook ever make to you that wasn’t true?
“A. None, to the best of my knowledge.”

Steven Singleton testified as follows:

“Q. Do you know of any time that Kathy Cook has ever told you anything that wasn’t true?
“A. No.”

If taken as true, AmSouth’s and Protective’s factual submissions showed that they were entitled to a summary judgment on the claims set forth in the Singletons’ complaint, because they established that the Singletons, unlike McCullar, were not sold excessive insurance and that there was no evidence that any misrepresentations had been made to them in regard to the insurance. The Singletons did not dispute any of the evidence submitted by AmSouth and Protective.

C. The Singletons’ Excessive-Premiums Allegation

In response to AmSouth’s and Protective’s motions for a summary judgment, the Singletons, without amending their complaint, made a new allegation: that they were charged “excessive insurance premiums for credit life insurance.” In support of this allegation, the Singletons submitted the affidavits of two certified public accountants, Michael Askew and Wray Pearce. It is undisputed that Regulation 4(c) of the State Banking Department Regulations, as amended May 22, 1991, and effective at the time of these loans, provided the applicable rate:

“1. The maximum rate for single premium decreasing term credit life insurance shall not exceed eighty cents ($0.80) per hundred ($100) per annum.
“4. Rates for premiums payable on other than single premium basis shall not exceed the actuarial equivalent of the rates specified above.”

(Emphasis added.)

It is also undisputed that the premiums the Singletons paid for the credit-life insurance were “payable in other than single premium basis.” Therefore, the maximum rate AmSouth and Protective were allowed to charge was the “actuarial equivalent” of the rates specified in subsection (c)(1) of Regulation 4. However, in neither affidavit relied on by the Singletons did the certified public accountants claim to have determined the actuarial equivalent of the specified rates.

In response to the Singletons’ new allegation, AmSouth and Protective produced the affidavit of an independent actuary, Steven L. Ostlund, and the affidavit of James Whitehead, a supervisor with the Bureau of Loans of the State Banking Department. Mr. Ostlund’s affidavit calculated the actuarial equivalent of the single premium rate of 80 cents per $100 per annum specified in Regulation 4(c)(1) and determined that the actuarial equivalent of that rate was $1.23 per $1,000 per month. Mr. Ostlund testified that, after reviewing the loan documents, he was of the opinion that the credit-life insurance rates applied to the Singleton loans were less than the actuarial equivalent of $.80 per $100 per annum and were therefore in compliance with Regulation 4(c). The affidavit of James Whitehead confirmed Mr. Ostlund’s actuarial calculation. Whitehead’s affidavit states that the State Banking Department has actually adopted and used this actuarial calculation in the most recent revision of the subject regulation:

“The Banking Department regulations in effect at the time of the Singleton loans provided that rates for premiums payable on other than a single premium basis, as the Singleton premiums were, should not exceed the actuarial equivalent of eighty cents ($0.80) per hundred per annum and 150 percent of that rate for dual credit life insurance coverage. The actuarial equivalent of eighty cents ($0.80) per annum is $1.23 per month per $1,000.00 of the outstanding insured indebtedness. The Banking Department used this actuarial equivalent ($1.23/month/$l,000.00) when amending its credit life insurance regulations in 1997 and incorporated and adopted the $1.23/month/$l,000.00 as the maximum allowable rate for credit life insurance. See 155-2-2-.12 of the Alabama Consumer Credit Act [Regulations].”

Mr. Whitehead also concluded that “the credit life insurance premiums charged to the Singletons ... were in compliance with the applicable Banking Department regulations,” and were, in fact, “less than those allowed by law.”

D. Trial Court’s Summary Judgment

Initially the trial judge, Judge Joel Laird, denied AmSouth’s and Protective’s motions for a summary judgment without a written order. Shortly thereafter Judge Laird recused himself from the case and was replaced by Judge Samuel Monk. Am-South and Protective presented renewed and supplemental motions for a summary judgment before Judge Monk. Judge Monk granted the motions for a summary judgment. The order stated:

“[AmSouth and Protective] contend that the rates charged the [Singletons] were in compliance with the applicable regulation and, in fact, were less than the maximum allowable rates. [Am-South and Protective’s] contention is wholly supported by the affidavit testimony of James A. Whitehead. Mr. Whitehead and the Department of Banking specifically found that the credit life insurance rates applied and charged in the case were less than the actuarial equivalent of those rates allowed by law at the time of the [Singletons’] loans. Mr. Whitehead farther concluded that the actual premiums charged to the [Singletons] in this case complied with the applicable Banking Department regulation.
“In opposition to [AmSouth’s and Protective’s] Motion[s], the [Singletons] have filed the affidavits of two certified public accountants ... [T]his Court finds that the affidavits do not address the primary issue of actuarial equivalence ....
“After having considered all of the evidence submitted, this Court specifically finds that the premiums charged the [Singletons] were not calculated on the ‘total payments’ (gross amount) as alleged by the [Singletons] but were in fact based upon the actual unpaid balance of principal and accrued interest. Furthermore, this Court finds that the premiums charged by [AmSouth and Protective] were in compliance with the Alabama State Banking Department Regulation 4(c) as amended on May 22, 1991.”

The trial court also concluded that there was no evidence of any misrepresentations concerning the credit-life insurance coverage; it therefore found that the Singletons had failed to present substantial evidence of fraudulent misrepresentation. The trial court also found there was no evidence to support a suppression claim because the loan documents provided to the Singletons clearly disclosed how the premiums for the credit-life insurance were calculated.

II.

On appeal, the Singletons argue that the affidavit testimony of Michael Askew and Wray Pearce demonstrated that a question of material fact existed as to whether the Singletons were charged excessive premiums for credit-life insurance. The Singletons also claim that there is substantial evidence of fraud on the part of AmSouth and Protective because, they say, the disclosures made by AmSouth and Protective to the Singletons included only estimates of credit-life insurance premiums to be paid. The Singletons did not submit to this Court a reply brief in response to the briefs submitted by AmSouth and Protective.

A Standard of Review

When reviewing a trial court’s summary judgment, this Court reviews the record in a light most favorable to the non-movant, resolving all reasonable doubts against the movants, to determine whether there is a genuine issue of material fact and whether the movants are entitled to a judgment as a matter of law. Copeland v. Samford Univ., 686 So.2d 190, 191 (Ala.1996). A summary judgment is proper when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show 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(c)(3), Ala. R. Civ. P. In determining whether there is a genuine issue of material fact, this Court is limited to considering the factors that were before trial court when it entered the judgment. Broadmoor Realty, Inc. v. First Nationwide Bank, 568 So.2d 779, 782 (Ala.1990).

“The moving party bears the burden of negating the existence of a genuine issue of material fact and showing that it is entitled to a judgment as a matter of law.” White v. Howie, 677 So.2d 752, 753 (Ala.Civ.App.1995). “In order to defeat a properly supported motion for summary judgment, the opposing party must present substantial evidence creating a genuine issue of material fact.” Voyager Guar. Ins. Co. v. Brown, 631 So.2d 848, 849 (Ala.1993).

B. Analysis

As stated above, the Singletons’ complaint presented a claim under McCul-lar, i.e., that AmSouth and Protective sold them more credit-life insurance coverage than they needed. When AmSouth and Protective submitted evidence in support of a summary judgment that conclusively disproved any theory of recovery consistent with McCullar, the Singletons’ main argument shifted. They then argued that AmSouth and Protective had overcharged them for the credit-life insurance by calculating the premiums using rates that were too high. On appeal, however, it appears that the Singletons’ argument has again evolved in an attempt to locate an issue of disputed fact — they now claim that the affidavits of the two certified public accountants they offered in opposition to the summary-judgment motions create a question of how the rates by which premiums were calculated were applied to the loan amount.

In their brief, the Singletons now concede that the rates “may be proper,” but assert that the rate “was applied to the wrong loan amount or that by some other mathematical [sleight] of hand they were overcharged.” After more than four years of litigation and discovery, the Singletons now suggest that “the method of calculation can be determined through discovery.” We disagree. Without determining whether the Singletons’ present allegations were sufficiently pleaded in their complaint to merit our review, see Bethel v. Thorn, 757 So.2d 1154, 1158 (Ala.1999), we find that it is obvious from the record that there is no evidence, much less substantial evidence, to support any of the Singletons’ allegations.

The Singletons have provided no evidence of AmSouth’s and Protective’s alleged violation of the Mini-Code. The rates by which the premiums were calculated were disclosed to the Singletons and that disclosure is documented in the record; the calculations were verified by two actuaries and by the State Banking Department. The Singletons provided no evidence as to how a simple-interest loan, where every element of the charge is disclosed and that disclosure is reported in the record, could, as they allege in their brief, implicate “mathematical [sleight] of hand” or “undisclosed complexity.” If the rate was applied to the “wrong loan amount,” it would be explicitly obvious on the written record of the loan histories (the accuracy of which has never been disputed), where every charge was disclosed.

Not only is there no evidence to support their claim that “AmSouth and Protective use a complex and undisclosed method to calculate charges,” this claim is also refuted by the record. Even without reference to the verifications by the expert actuaries and the State Banking Department, this Court was able to take the rates and the monthly loan balances, as shown on one of the loan histories in the record, and verify that each charge represented the stated premium rate multiplied by the present balance and the number of days since the last payment. The record simply does not support the Singletons’ claims that they were charged excessive premiums or that they were sold excessive insurance coverage.

Furthermore, the Singletons’ argument in support of their fraud claim — that the premium disclosures were inaccurate because they were merely estimates — is pure sophistry. As explicitly disclosed, the Singletons’ premiums were calculated on a daily basis. Therefore, the precise amount of each month’s premium varied slightly depending upon when the Singletons made payments on the loans. This fact was accurately disclosed, and cannot therefore be evidence of a misrepresentation. The Singletons failed to present evidence of the most essential element of fraud by misrepresentation: that the defendant made a false representation concerning an existing material fact. Luck v. Primus Auto. Fin. Servs., Inc., 763 So.2d 243, 245 (Ala.2000).

Likewise, the Singletons’ suppression claim is equally without merit. In their brief, the Singletons allege that AmSouth and Protective suppressed the method by which they calculated credit-life insurance premiums through their “use [of] a complex and yet undisclosed method to calculate the charges to the Singletons for credit insurance.” The record simply does not support this contention. Instead, the record reveals that the premiums for credit-life insurance were calculated exactly as the loan documents signed by the Singletons said they would be calculated. It is well settled that, under Alabama law, there can be no suppression if the information allegedly suppressed is in a form signed by the party complaining about the suppression. Locklear Dodge City, Inc. v. Kimbrell, 703 So.2d 303 (Ala.1997).

The Singletons’ civil-conspiracy claim also fails as a matter of law. “In order to succeed on a civil-conspiracy claim, a plaintiff must prove a concerted action by two or more people that achieved an unlawful purpose or a lawful end by unlawful means.” Luck, 763 So.2d at 247. “ ‘Where civil liability for a conspiracy is sought to be enforced, the conspiracy itself furnishes no cause of action. The gist of the action is not the conspiracy alleged but the wrong committed.’ ” Purcell Co. v. Spriggs Enters., Inc., 431 So.2d 515, 522 (Ala.1983) (quoting O’Dell v. State ex rel. Patterson, 270 Ala. 236, 240, 117 So.2d 164, 168 (1959)). Because we have determined that the Singletons’ claims of Mini-Code violations, fraudulent misrepresentation, and suppression fail as a matter of law, the conspiracy claim must also fail because there is no “actionable wrong” to support a conspiracy theory. See Id.

III. Conclusion

We are troubled in this case by the fact that there never seemed to be any evidence of a wrong or an injury to the Singletons. When undisputed evidence disproved the allegations in their complaint, the Singletons, undaunted, presented equally untenable allegations regarding premium rates. We further note that on appeal the Singletons failed to submit a reply brief. Considering the strength of the arguments contained in the briefs submitted by AmSouth and Protective, we have a hard time believing that the Singletons’ failure to reply was anything other than a tacit admission of an illegitimate claim. If the briefs submitted by Am-South and Protective lead the Singletons to doubt the viability of their claim to the point that they decided not to waste time on a reply, they should have moved to dismiss their appeal.

We find that the Singletons’ claims are not supported by substantial evidence; therefore, the trial court’s summary judgment is affirmed.

AFFIRMED.

LYONS and JOHNSTONE, JJ., concur.

MOORE, C.J., and WOODALL, J., concur in the result.

      . The Singletons borrowed the following amounts from AmSouth: on July 25, 1995, Cyndi and Steven Singleton borrowed $5,550 (loan no. 9000198411); on January 16, 1996, Steven Singleton borrowed $1866.50 (loan no. 9000280520); on February 28, 1997, Steven Singleton borrowed $1,050 (loan no. 9000509338).

      . Effective August 1, 1997, the State Banking Department adopted new regulations, repealing all prior regulations adopted pursuant to the Mini-Code. The regulation addressing credit-life insurance is now no. 155-2-2-.12(2), Alabama Consumer Credit Act Regulations.

      . Although the loan agreement dated July 25, 1995, provided that credit-life coverage premiums would be calculated at a rate of $.0043836 per day for one insured and $.0065753 for two insured for each $100 of the unpaid balance of the loan, the premiums for all three loans were actually calculated using an updated lower rate of $.0039452 per day for one insured and $.0059178 for two insureds.


source: Caselaw Access Project

author: STUART, Justice. MOORE, Chief Justice

license: Public Domain

text:
    Durward JACKSON v. ALEXANDER, CORDER, PLUNK, BAKER & SHELLY, P.C.
    1011604.
    Supreme Court of Alabama.
    March 14, 2003.
    Donald R. Jones, Jr., Montgomery, for appellant.
    Albert L. Jordan and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; and James M. Cord-er, Jr., and Mitchell K. Shelly of Alexander, Corder, Plunk, Baker & Shelly, P.C., Athens, for appellee.
   STUART, Justice.

AFFIRMED; NO OPINION.

See Rule 58(a)(1), (a)(2)(C), and (a)(2)(F), Ala. R.App. P.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

MOORE, C.J., concurs in part and dissents in part.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur in the Court s affirming the trial court’s judgment insofar as it orders Durward Jackson to pay $80,000 in legal fees owed to Alexander, Corder, Plunk, Baker & Shelly, P.C. (“the firm”), for services rendered by the firm. I must dissent, however, from its affirming the trial court’s award of an additional $100,000 pursuant to the fee agreement between Jackson and the firm.

Jackson contracted with the firm to represent him in litigation against the Rogers Group, which wanted to locate a rock quarry on land adjacent to property on which Jackson wanted to build an upscale residential subdivision with accompanying amenities such as a golf course and a restaurant. The goal of the litigation, filed on Jackson’s behalf against the Rogers Group, was to stop the Rogers Group from locating the rock quarry on the adjacent land, because of the effect it would have on Jackson’s housing-development project.

Jackson met with attorneys from the firm for the first time on June 22, 1998; from that meeting came an agreement concerning representation. One of the firm’s attorneys sent Jackson a letter the next day detailing the terms of the fee arrangement for the firm’s representation of Jackson. The letter fee agreement provided that the fee would be as follows:

“(1) $30,000 payable at this time [June 23,1998];
“(2) If you wish for us to continue our efforts in this litigation on and after October 1, 1998, $50,000 due October 1,1998;
“(3) If you wish for us to continue our efforts in the litigation on and after February 1, 1999, $30,000 due February 1,1999;
“(4) $100,000 due upon and if we are successful in the litigation at the trial court level or if the Rogers Group ceases [its] efforts for any reason after February 1, 1999.”

(Emphasis added.)

Jackson made the first payment of $30,000. On September 8, 1999, the company Jackson formed to finance and develop the subdivision filed for bankruptcy. On September 16, 1999, the firm officially terminated its representation of Jackson and billed him for $80,000 in unpaid fees due pursuant to the fee agreement. Jackson refused to pay those fees, claiming that there was no evidence indicating that the firm represented him and his company on or after October 1,1998.

The firm sued Jackson on November 8, 1999, seeking $80,000 in unpaid fees, which it says were due to be paid on October 1, 1998, and February 1, 1999. In early 2001, the Rogers Group sold the property on which it was proposing to locate the rock quarry, at which point it became clear that no quarry was going to be established on the property adjacent to Jackson’s property. The firm then amended its complaint to seek the $100,000 fee that had been contingent on the Rogers Group’s ceasing its efforts to locate the rock quarry on the property adjacent to Jackson’s property. After a bench trial, the trial court entered a judgment in favor of the firm and awarded the firm the entire $180,000 it had requested.

I agree that Jackson assented to the terms of the fee agreement and that the firm represented Jackson on this matter from June 23, 1998, through at least February 1, 1999, which entitled the firm to $80,000 under the fee agreement, the total of which was contingent on continued representation through the latter date. However, I must disagree with the Court’s decision to allow the award of the additional $100,000 to stand.

The trial court concluded that Jackson owed the $100,000 because one of the contingencies that triggered Jackson’s obligation to pay the $100,000, i.e., the Rogers Group’s cessation of plans to locate a rock quarry on the property, occurred in 2001. The firm was awarded this $100,000 despite the fact that it ceased representing Jackson in September 1999 and that it, in fact, sued Jackson in November 1999 for fees it said he owed the firm.

The fee arrangement between Jackson and the firm was a contingent-fee agreement because the passage of time and the occurrence of certain events triggered Jackson’s obligation to pay under the fee agreement. See, e.g., Rule 1.5(c), Ala. R. Prof. Conduct (stating that a contingent fee is a fee “contingent on the outcome of the matter for which the service is rendered .... ”). The $50,000 fee due on October 1, 1998, and the $30,000 fee due on February 1, 1999, were contingent on the firm’s representing Jackson after those dates. The payment of the $100,000 fee was contingent upon either success in litigation at the trial level or upon the Rogers Group’s “ceas[ing] [its] efforts” to establish the rock quarry “for any reason after February 1, 1999.” The case never went to trial, but the Rogers Group did cease its efforts to establish the quarry. Thus, on the face of the contract, it appears that Jackson owed the firm the $100,000.

However, the face of the contract does not control in this case because the firm ceased representing Jackson more than a year before the contingency necessary to trigger the payment of the $100,000 fee occurred.

“It is well established in Alabama that upon an attorney’s discharge, the prior part performance of a contract entitles the attorney to recover for those services rendered. As the Court of Appeals pointed out in Gaines[, Gaines & Gaines, P.C. v. Hare, Wynn, Newell & Newton, 554 So.2d 445 (Ala.Civ.App.1989)]:
“4 “The rule in Alabama is that an attorney discharged without cause, or otherwise prevented from full performance, is entitled to be reasonably compensated only for services rendered before such discharge. Hall v. Gunter, 157 Ala. 375, 47 So. 155 [(1908)]. This appears to be the prevailing rule where the contract, as here, called for a contingent fee. 6 C.J. p. 724 § 293.” Owens v. Bolt, 218 Ala. 344, 348, 118 So. 590 (1928).’
554 So.2d at 448.”

Triplett v. Elliott, 590 So.2d 908, 910 (Ala.1991) (emphasis added).

In this case, it was not the client who terminated the representation, but rather the firm. Indeed, the firm sued its former client before the occurrence of the very event it claims entitles it to the additional $100,000. If, according to Triplett and other cases, an attorney, when the client terminates the relationship, can receive a fee only for services rendered before termination of the representation and not the amount agreed to in the contingency-fee agreement, then certainly when the law firm terminates the relationship before cessation of the underlying dispute, the law firm would be entitled only to fees for services rendered before that termination. When the firm terminated its representation of Jackson in September 1999, it terminated the agreement between it and Jackson as well. Without the agreement, no basis exists for holding Jackson responsible for the $100,000 fee that supposedly came due in early 2001 after the Rogers Group sold its land. The trial court’s ruling in this case allowed the firm to benefit from an event that occurred after the fee agreement ceased to exist.

Determining how much an attorney is owed in a contingency-fee arrangement occurs often when the client discontinues the attorney-client relationship before the case goes to trial. In those situations, the attorney is entitled to a reasonable fee for services rendered, but is not entitled to the contracted-for fee because “the contingent fee agreement was terminated, not breached.” Trenti, Saxhaug, Berger, Roche, Stephenson, Richards & Aluni, Ltd. v. Nartnik, 439 N.W.2d 418, 421 (Minn.Ct.App.1989); accord, Gaines, Gaines, & Gaines, P.C. v. Hare, Wynn, Newell & Newton, 554 So.2d 445, 447 (Ala.Civ.App.1989) (“It is well recognized that the employment of an attorney by a client is revocable by the client with or without cause, and that such discharge ordinarily does not constitute a breach of contract even with a contract of employment which provides for the payment of a contingent fee.”).

The only difference between the ordinary attorney-client contingency-fee dispute and this case is that the contingency in this case was due not only if the outcome at trial was successful, but also if a certain event outside of litigation occurred, i.e., the cessation of plans to locate the rock quarry on property adjacent to Jackson’s. The occurrence of this event after the firm, had terminated its representation in no way obligates Jackson to pay the $100,000, just as termination by the firm of its representation of Jackson before a successful outcome at trial would not obligate Jackson.

In short, the firm was entitled to its fees under the contract up to the time it ceased representing Jackson, but not after that time. To demonstrate that it is entitled to any fee after February 1, 1999, the firm would have had to present evidence that it worked for Jackson beyond that date. In other words, the contingencies entitling the firm to fees under the contract assume the firm’s continued representation of Jackson. To hold otherwise makes Jackson responsible for a fee after contractual ties had been severed, after Jackson’s development venture had failed, and after the firm had sued Jackson for services rendered under the fee agreement. It was the firm — not Jackson — who declared the contract at an end when it sued Jackson. To allow recovery by the firm under the fee agreement is not appropriate; it defies common sense. Therefore, I dissent.


author: CRAWLEY, Judge.

text:
    STATE DEPARTMENT of HUMAN RESOURCES v. The ESTATE of Inez HARRIS, an alleged incapacitated person.
    2010048.
    Court of Civil Appeals of Alabama.
    June 14, 2002.

      William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Sharon E. Ficquette, asst. atty. gen., Department of Human Resources.
    E. Shane Black and I. Ripon Britton, Jr., of Hand Arendall, L.L.C., Birmingham, for James M. Tingle, as conservator of the estate of Inez Harris.
    Larry Lee Guthrie, Jr., Birmingham, guardian ad litem.
   CRAWLEY, Judge.

The State Department of Human Resources (“DHR”) appeals from a judgment awarding, as part of an award of costs, an attorney fee of $1,261 to the guardian ad litem (“GAL”) and $1,000 as a “commission to defray overhead and expenses of the conservator,” and directing that both of these fees be paid by DHR.

This matter was initiated when Aaron Harris notified DHR that his stepmother, Inez Harris, lived alone, that she suffered from dementia, and that she was in need of adult protective services. A DHR social worker visited Ms. Harris’s home, determined that Ms. Harris was in need of 24-hour care, and filed a report summarizing her conclusions. Accordingly, on May 14, 2001, DHR petitioned the probate court to establish a conservatorship, alleging that Ms. Harris was incapacitated and seeking both the appointment of a conservator to make decisions regarding Ms. Harris’s finances and the appointment of a GAL to represent Ms. Harris’s interests during the proceedings. On that same date, the probate court appointed a GAL, who filed a report recommending that a conservator be appointed. After a hearing, the probate court entered a judgment on July 6, 2001, granting the petition conditioned upon the payment by DHR of the sum of $1,000 as fees and as a commission to the conservator. DHR filed a post-judgment motion, pursuant to Rule 59, Ala. R. Civ. P., contending that the probate court lacked authority to order DHR to pay the conservator’s fees and commission or to make payment of the fees and commission a condition of the appointment of a conservator. The probate court held a hearing on the postjudgment motion and thereafter vacated its July 6, 2001, judgment. The probate court entered an amended judgment on August 21, 2001, appointing a conservator and taxing as costs against DHR the GAL’s fee of $1,261, plus expenses and a “commission” in the amount of $1,000 to be used to defray the overhead costs and expenses of the conservator. DHR appealed to the supreme court; that court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Our review of an award of costs by a probate court is limited to determining whether the probate court abused its discretion. Lawyers Surety Corp. v. Whitehead, 719 So.2d 824 (Ala.Civ.App.1997), rev’d on other grounds, 719 So.2d 833 (Ala.1998).

Alabama follows the “American Rule” regarding the award of an attorney fee; that rule provides for the recovery of an attorney fee if a fee is allowed by statute, by the terms of a contract, or by a “special equity.” See Eagerton v. Williams, 433 So.2d 436, 450 (Ala.1983). The special-equity exception has been invoked, for example, when an attorney’s efforts created a common fund out of which the fee may be paid. City of Ozark v. Trawick, 604 So.2d 360 (Ala.1992). Rule 54(d), Ala. R. Civ. P., provides that “[e]x-cept when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs, and this provision is applicable in all cases in which the state is a party plaintiff in civil actions as in cases of individual suitors.” Under Rule 54(d), Fed.R.Civ.P., the term “costs” encompasses “fees of the clerk and marshal, court reporter’s fees, printing costs and witness fees, costs for copies of papers, docketing fees, and compensation of court-appointed experts and interpreters.” Ennis v. Kittle, 770 So.2d 1090, 1092 (Ala.Civ.App.1999). See also Parkes v. Hall, 906 F.2d 658, 659 n. 3 (11th Cir.1990) (citing 28 U.S.C. § 1920); see also Knight v. Snap-On Tools Corp., 3 F.3d 1398, 1404 (10th Cir.1993).

As this court noted in Ennis, 770 So.2d at 1092, “[t]he Alabama Code, unlike the United States Code, does not contain a single statutory provision outlining permissible cost items.” We note, for example, “that the [Alabama] Code allows for, among other things, the taxation of witness fees (§§ 12-19-131 and 12-19-134, Ala.Code 1975) and the costs of any deposition introduced into evidence at the trial by the party taking the deposition (§ 12-21-144, Ala.Code 1975).” 770 So.2d at 1092.

Ennis noted that the Alabama supreme court has held that certain other expenses are taxable as costs at the conclusion of an action. Items such as the costs of depositions that were not used at trial (Ex parte Strickland, 401 So.2d 33, 34-35 (Ala.1981)); travel expenses, copying costs, and filing fees (Lewis, Wilson, Lewis & Jones, Ltd. v. First Nat’l Bank, 435 So.2d 20, 23 (Ala.1983)); and survey costs (Smith v. Smith, 482 So.2d 1172, 1175 (Ala.1985)) have all been held to qualify as “costs” that may be awarded under Rule 54(d), Ala. R. Civ. P.

In Lawyers Surety Corp., successor conservators of an estate sued a former conservator and the former conservator’s surety, seeking to recover losses for an alleged breach of fiduciary duty. 719 So.2d 824 (Ala.Civ.App.1997), rev’d on other grounds, 719 So.2d 833 (Ala.1998). This court affirmed a probate court’s judgment awarding an attorney fee and a fee to a GAL and directing the surety company to pay those fees. Lawyers Surety Corp., 719 So.2d at 831-32. This court relied on the special-equity doctrine to affirm those awards, reasoning that the services provided by the GAL had benefited the estate by enhancing its value; therefore, an award of costs and an attorney fee was proper. Lawyers Surety Corp., 719 So.2d at 832. This court further held that the portion of the judgment directing Lawyers Surety, rather than the estate, to pay those fees and costs was also proper because of the discretionary nature of the allowance of items such as litigation costs and counsel fees; we held that “where an allowance is made, to whom it is made, and who pays it, depend upon factors such as who benefits from the litigation, the outcome of the litigation, and the necessity for the litigation.” Lawyers Surety Corp., 719 So.2d at 832.

In the present case, there is no prevailing party because a petition seeking to establish a conservatorship is not a true adversary proceeding, but is, instead, a protective proceeding for those who qualify for such protection under the Alabama Uniform Guardianship Act. Further, the value of Ms. Harris’s estate was not enhanced, as was the value of the estate in Lawyers Surety Corp., but was merely structured for sound management and preservation by the appointment of a conservator.

In McCallie v. McCallie, 660 So.2d 584 (Ala.1995), the probate court entered an order determining that the establishment of a conservatorship was not required because a son of the alleged incapacitated person held a durable power of attorney and was performing all the duties a conservator would perform for the incapacitated person; in its judgment, the probate court awarded an attorney fee to the son who held the power of attorney and directed that the fee be paid by the petitioner, another son of the alleged incapacitated person. The Supreme Court reversed that portion of the judgment awarding the attorney fee, stating that the probate court had no legal basis on which to award the attorney fee. In reaching its conclusion, the McCallie court relied upon Ala.Code 1975, § 26-2A-142(a), which provides in pertinent part:

“If not otherwise reasonably compensated for services rendered, any court representative, attorney, physician, conservator, or special conservator appointed in a protective proceeding and any attorney whose services resulted in a protective order or in an order that was beneficial to a protected person’s estate is entitled to reasonable compensation from the estate.... ”

McCallie implied that if such a fee was awarded, it should be paid from the estate pursuant to § 26-2A-142(a), Ala.Code 1975. 660 So.2d at 588.

Rule 17(d), Ala. R. Civ. P., governs the award of a GAL fee in those cases in which a GAL is required. We conclude that Rule 17(d) is not applicable in the present case because § 26-2A-135(b), Ala.Code 1975, does not require that a court appoint a GAL for an allegedly incapacitated person. Section 26-2A-135(b) provides in pertinent part: “Unless the person to be protected has chosen counsel, the court shall appoint an attorney to represent the person who may be granted the powers and duties of a guardian ad litem.” (Emphasis added.) Because the trial court is not required to grant the powers of a GAL to counsel appointed to represent a person to be protected, the “requirement” condition of Rule 17(d) is not invoked and, thus, Rule 17(d) does not govern the payment of an attorney fee for either the conservator or the GAL representing a person allegedly in need of protection in a conservator-ship proceeding.

We therefore look to the provisions of the Uniform Guardianship Act to determine how the fees for those persons appointed as conservator and guardian ad litem should be awarded and from what source those fees should be paid. Section 26-2A-142(a), Ala.Code 1975, the statute relied upon in McCallie, supra, provides that “any court representative, attorney, physician, conservator, or special conservator appointed in a protective proceeding and any attorney whose services resulted in a protective order ... is entitled to reasonable compensation from the estate.” (Emphasis added.) Section 26-2A-142(a) also provides that the estate of the person to be protected shall reimburse the conservator for bond premiums and court costs. Id.

We find the facts of this case to be closely analogous to the facts presented in In re C.H., 723 So.2d 1277 (Ala.Civ.App.1998). In that case, the probate court entered a judgment adjudicating a minor to be dependent, transferring custody of the minor to the Department of Mental Health and Mental Retardation and taxing the GAL fee against the Department. On appeal, this court held that the probate court had no legal basis for taxing the GAL fee against the Department, noting that the applicable statute, § 15-12-21(e), Ala.Code 1975, provides a procedure for the GAL to follow to obtain payment and that the statute provides that the state treasurer pay the fee. In re C.H., 723 So.2d at 1279.

We conclude that the probate court erred in directing DHR to pay the fees for the GAL and the conservator because § 26-2A-142(a) governs the payment of fees for a GAL and a conservator and also governs the reimbursement of court costs and bond premiums. As we have noted, that statute provides that those fees are properly paid from the estate of the person to be protected.

The probate court’s judgment also provided for the conservator’s overhead expenses to be paid by DHR. Section 15-12-21(d), Ala.Code 1975, has been construed to provide for overhead expenses to be paid to counsel appointed for indigent criminal defendants and for certain juvenile defendants when approved in advance by a trial court. May v. State, 672 So.2d 1307 (Ala.Crim.App.1993), writ quashed, 672 So.2d 1310 (Ala.1995); but see Lyons v. Norris, 829 So.2d 748, 751 n. 1 (Ala.2002) (in which a plurality suggests that 1999' amendment to § 15-12-21 eliminated overhead-expense reimbursement). However, § 15-12-21(d) does not provide for overhead expenses to be paid to a GAL or conservator in an adult protective proceeding, and we have been directed to no authority that would allow for the probate court to direct such payments to be made.

That portion of the August 21, 2001, judgment directing DHR to pay the fee for the GAL and the fee and expenses of the conservator is reversed and the cause is remanded to the probate court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

MURDOCK, J., concurs in the result.

      . The county departments of human resources serve as agents of the State Department of Human Resources; the State Department is empowered to designate the county as its agent and to assist the counties in their various duties when necessary. See § 38-6-2, Ala.Code 1975; Admin. Rules 660-1-2-.01(g) and 660-1-2-.02. In the present case, Jefferson County Department of Human Resources filed the petition and served as petitioner until its postjudgment motion was denied. Both the State Department of Human Resources and the Jefferson County Department of Human Resources joined in filing the notice of appeal. Because the distinction between the two departments has no bearing on the result reached and for ease of reading, we will refer to both the State Department of Human Resources and the Jefferson County Department of Human Resources collectively as DHR.


author: PER CURIAM.

text:
    Ex parte ESTATE of Inez HARRIS. (In re State Department of Human Resources v. Estate of Inez Harris, an alleged incapacitated person).
    1011881.
    Supreme Court of Alabama.
    March 28, 2003.
    E. Shane Black and I. Ripon Britton, Jr., of Hand Arendall, LLC, Birmingham, for James M. Tingle, as conservator of the estate of Inez Harris; and Larry Lee Guthrie, Jr., Birmingham, guardian ad li-tem for Inez Harris.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Sharon E. Ficquette, asst. atty. gen., Department of Human Resources.
   PER CURIAM.

Our action in quashing the writ of certio-rari in this case should not be taken as an expression of approval regarding the reasoning in the Court of Civil Appeals’ opinion. See City of Birmingham v. City of Fairfield, 396 So.2d 692, 697 (Ala.1981); Rule 54(d), Ala. R. Civ. P.

WRIT QUASHED.

MOORE, C.J., and HOUSTON, LYONS, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

JOHNSTONE, J., dissents.


author: MURDOCK, Judge.

text:
    P.G. and J.G. v. G.H.
    2000815.
    Court of Civil Appeals of Alabama.
    June 28, 2002.
    Rehearing Denied Nov. 22, 2002.
    Certiorari Denied March 28, 2003 Alabama Supreme Court 1020399.

      William W. Tally of Tally & Tally, Scottsboro, for appellants.
    W.N. Watson of Watson, Gillis & Carver, P.C., Fort Payne, for appellee.
   MURDOCK, Judge.

P.G. and J.G. appeal from a judgment of the DeKalb Circuit Court determining that G.H. was the biological father of a daughter born to P.G. while she was married to J.G. J.G. and P.G. married in 1986 and were married when the child was born in July 1998; J.G. and P.G. had not separated or divorced at the time of trial, and the child was their only child. G.H. was also married at the time the child was born and he and his wife have two children.

On June 6, 2000, G.H. filed a petition pursuant to the Alabama Uniform Parentage Act (“UPA”), Ala.Code 1975, § 26-17-1 et seq., requesting that the trial court enter an order declaring him to be the father of P.G.’s child, granting him visitation rights with the child, and establishing the amount of child support he would be required to pay for the benefit of the child. J.G. and P.G. filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss G.H.’s petition. At the hearing on the Rule 12(b)(6) motion, the parties stipulated that J.G. and P.G. were married at the time of the child’s birth and that J.G. was listed as the father of the child on the child’s birth certificate. The parties also stipulated that a DNA test that P.G. and G.H. had performed on the child without the knowledge of J.G. indicated a 99% probability that G.H. was the biological father of the child. However, J.G. and P.G. persisted in their claim that J.G. was the presumed and legal father of the child, and J.G. and P.G. argued that G.H. had no standing to file an action seeking to establish his paternity of the child. After arguments by the parties’ attorneys, the trial court entered an order denying J.G. and P.G.’s Rule 12(b)(6) motion and appointing a guardian ad litem to represent the child for purposes of G.H.’s petition.

The trial court held an ore tenus hearing on G.H.’s petition and entered a judgment on April 12, 2001, determining that G.H. was the father of the child. In its judgment, the trial court stated that J.G. was entitled to assert the presumption that he was the father of the child because the child was born during his marriage to P.G. The trial court specifically determined that J.G. “held himself out to be the father of the ... child and persists that he is the father of said child, despite his testimony of his apparent sterility.[] ... [J.G.] has responsibly and lovingly cared for, supported and parented the ... child as a father.”

The trial court further determined that P.G. and G.H. had had an extramarital sexual relationship during a nine-year period ending in April 2000 and that P.G. and G.H. discontinued their relationship on several occasions during that period. The trial court noted that in March 2000 P.G. and G.H. had a paternity test performed without J.G.’s knowledge; that the results of the paternity test were admitted into evidence without objection; that the DNA test results indicated a 99% probability that G.H. was the child’s biological father; and that the parties had stipulated that G.H. was the child’s biological father. The trial court also determined that before April 2000, and without the knowledge of J.G., P.G. and G.H. arranged for G.H. to visit the child on several occasions.

The trial court concluded that the presumption of paternity in favor of J.G. had been rebutted by clear and convincing evidence and that G.H. was the father of the child. The court awarded joint custody of the child to P.G. and G.H., with primary physical custody being awarded to P.G.; awarded G.H. visitation rights with the child; ordered G.H. to pay $681 per month as his child-support obligation; ordered G.H. to provide medical insurance for the child; and changed the child’s name so that the child’s last name coincided with that of G.H.

J.G. and P.G. filed a postjudgment motion, which the trial court denied, and they have appealed to this court. The sole issue that J.G. and P.G. have raised on appeal is whether G.H. had standing, pursuant to the UPA, to file a claim to attempt to establish his alleged paternity of the child.

“When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999); see also Hooten v. Hooten, 754 So.2d 634 (Ala.Civ.App.1999). Section 26-17-6 of the UPA states, in pertinent part:

“(a) A child, a child’s natural mother, or a man presumed to be the child’s father under subdivision (1), (2), or (3) of Section 26-17-5(a), may bring an action at any time for the purpose of declaring the existence of the father and child relationship presumed under subdivision (1), (2), or (3) of Section 26-17-5(a), but for purposes of support, the action shall be brought before the child reaches the age of 19; or
“(b) Any interested party may bring an action at any time for the purpose of determining the existence or non-existence of the father and child relationship presumed under subdivision (4) or (5) or (6) of Section 26-17-5(a).
“(c) An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under Section 26-17-5 may be brought by the child, the mother, or personal representative of the child, the public authority chargeable by law with support of the child, the personal representative or a parent of the mother if the mother has died, a man alleged or alleging himself to be the father, or the personal representative or a parent of the alleged father if the alleged father has died or is a minor.”

Ala.Code 1975, § 26-17-6 (emphasis added).

Subdivisions (1), (2), and (3) of § 26-17-5(a) provide:

“(a) A man is presumed to be the natural father of a child if any of the following apply:
“(1) He and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by a court.
“(2) Before the child’s birth he and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and
“a. If the attempted marriage may be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after the termination of the attempted marriage by death, annulment, declaration of invalidity, or divorce; or
“b. If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation.
“(3) After the child’s birth, he and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with the law although the attempted marriage is or could be declared invalid, and
“a. He has acknowledged his paternity of the child in writing, the writing being filed with the appropriate court or the Office of Vital Statistics; or
“b. With his consent, he is named as the child’s father on the child’s birth certificate; or
“e. He is otherwise obligated to support the child either under a written voluntary promise or by court order.”

G.H. does not fall within any of these three categories. Rather it was undisputed that the child was born to P.G. while she was married to J.G.; the trial court properly determined that under § 26 — 17—5(a)(1) J.G. was the presumed father of the child. The plain language of the UPA does not support the trial court’s finding that G.H. had standing to pursue his paternity action.

In Ex parte Presse, 554 So.2d 406 (Ala.1989), the Alabama Supreme Court addressed whether a third party has standing under the UPA to file an action to establish his paternity of a child who has been born during the mother’s marriage to a presumed father under § 26 — 17—5(a)(1). In that case, the mother and presumed father had divorced within three years after the child’s birth, the mother had married the man who alleged he was the father of the child within three months of her divorce, and the mother had joined in the alleged father’s paternity petition. Ex parte Presse, 554 So.2d at 408. The Alabama Supreme Court noted:

“Upon the [mother and the alleged father’s] request, the court ordered blood tests of all the parties, which indicated that [the presumed father] lacks the red cell antigen N, which is present in the child, ... and is absent in [the mother]. The test also indicated that there is a 99% probability that [the alleged father] is the biological father of [the child].
“Those blood tests were introduced into evidence, along with two other tests. The only tests introduced on [the presumed father’s] behalf were administered upon [the mother, the child, and the presumed father] in 1978. Those particular tests indicated that [the presumed father] could not in any way be excluded as the natural father of [the child]. By stipulation of the parties, no expert witnesses were called to testify concerning the results of the tests.”

Id. Despite the conclusive evidence in favor of the alleged father in Ex parte Presse, the Alabama Supreme Court held that under the UPA, an alleged father does not have “standing to bring an action seeking to declare a child illegitimate and to have himself declared the father of that child” “as long as there is a presumed father, pursuant to § 26 — 17—5(a)(1), who” “persists in maintaining his parental status.” Ex parte Presse, 554 So.2d at 418; see also J.K. v. R.S., 706 So.2d 1262, 1264 (Ala.Civ.App.1997)(“[a] man claiming to be the father of a child born during the marriage of its mother to another man does not have standing under the [UPA] to initiate an action to establish that he is the father of the child, where the presumed father persists in the presumption that he is the father”)(emphasis added); Ex parte C.A.P., 683 So.2d 1010, 1012 (Ala.1996)(“[a] man not presumed to be the father ... may institute an action to have himself declared the father only when the child has no presumed father”)(emphasis added). The Supreme Court emphasized its holding by stating:

‘“Section 26-17-6(c) provides that a man claiming to be the biological father can seek a determination of a father- child relationship if the child has no presumed father. Here, since the child’s presumed father is the husband, the third party would not have standing under the [UPA].... The legislature explicitly chose not to grant standing to one claiming to be the natural father of a child with a presumed father.’

Ex parte Presse, 554 So.2d at 413 (quoting from and “embracing] former Chief Justice Torbert’s dissenting opinion in Ex parte Anonymous, 472 So.2d 643[, 643-44] (Ala.1985)”) (emphasis in Ex parte Presse; footnote omitted); see also Hooten, 754 So.2d at 635 (“[o]ur supreme court has held that no one, including the mother of the child, has standing to challenge a presumed father’s paternity as long as the presumed father persists in claiming paternity of the child”).

In this case, the trial court specifically found that J.G. was the presumed father of the child and that he “held himself out to be the father of the child ... and persisted] that he is the father of [the] child.” The trial court based its decision in favor of G.H. on Ala.Code 1975, § 26-17-5(b), which states, in pertinent part, that “[a] presumption of paternity under [§ 26-17-5(a) ] may be rebutted in an appropriate action only by clear and convincing evidence.” (Emphasis added.) The purpose of § 26-17-5(b) is to set out an evidentiary standard; that section applies “in an appropriate action” and does not expand the substantive rules of standing set forth in § 26-17-6(a).

G.H. attempts to circumvent the applicable rules of standing, recognized in Ex parte Presse and subsequent cases, by arguing that J.G. was not entitled to the presumption stated in § 26-17-5(a)(l) because the parties stipulated that G.H. was the biological father of the child. In essence, G.H. argues that the UPA is not applicable because he proved that J.G. was not the natural father. Clearly, however, the statute that governs the issue of J.G.’s paternity is § 26-17-1 et seq. That statute establishes certain presumptions, including the presumption in § 26-17-5(a)(l) that favors J.G. G.H.’s argument that he proved himself, rather than J.G., to be the natural father of the child, puts the “cart” of a substantive determination before the “horse” of standing to seek such a determination. It is simply another way of saying that in the trial of this case he rebutted the presumption of § 26-17-5(a)(1). However, under Ex parte Presse, and the plain language of § 26-17-6(a), G.H. had no standing even to bring this case.

The Alabama Supreme Court stated in Ex parte Presse that the UPA “espouses principles that seek to protect the sanctity of family relationships by providing a comprehensive statutory network through which a child may enforce its right of support against the presumed father.” Ex parte Presse, 554 So.2d at 412 (emphasis added). The Court further explained its holding with citations to various other authorities. After quoting from Chief Justice Torbert’s dissent in Ex parte Anonymous, 472 So.2d at 643-44, the Presse Court stated:

“ ‘In a case cited by Chief Justice Torbert, the Delaware Supreme Court held that a third party did not have standing to seek custody of or visitation with a child born during the marriage of its mother to another man. The Delaware court held that a man has no constitutionally protected interest in a determination of his parental status regarding a child born during the marriage of its mother to another man who has not disavowed the child’s legitimacy. Further, the court determined that, even assuming that the one claiming to be father has a constitutionally protected interest, it would be overridden by the competing public interest. The countervailing interest cited by the court was the protection of the child from confusion, torn affection, and the stigma of illegitimacy. Petitioner F. v. Respondent R., 430 A.2d 1075 (Del.1981).”

Ex parte Presse, 554 So.2d at 413. The Presse Court also noted with approval the position that “ ‘the presumption that the husband of the mother of a child born during marriage is the father of that child — is often said to be one of the strongest presumptions known to the law.’ ” Id. (quoting Note, R. McG. & C.W. v. J.W. & W.W.: The Putative Father’s Right to Standing to Rebut the Marital Presumption of Paternity, 76 N.W.U.L.Rev. 669 (1981)). Finally, the Presse Court quoted at great length from the plurality opinion in Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989). In light of G.H.’s evidentiary argument that he rebutted the presumption of J.G.’s paternity, we note the following portion of Michael H. quoted with approval by our Supreme Court in Ex parte Presse:

“ ‘[The biological father] asserts that requirements of procedural due process prevent the State from terminating his liberty interest in his relationship with his child without affording him an opportunity to demonstrate his paternity in an evidentiary hearing. We believe this claim derives from a fundamental misconception of the nature of the California statute. While § 621 is phrased in terms of a presumption, that rule of evidence is the implementation of a substantive rule of law. California declares it to be, except in limited circumstances, irrelevant for paternity purposes whether a child conceived during and born into an existing marriage was begotten by someone other than the husband and had a prior relationship with him. As the Court of Appeal phrased it:
“ ‘ “ ‘The conclusive presumption is actually a substantive rule of law based upon a determination by the Legislature as a matter of overriding social policy, that given a certain relationship between the husband and wife, the husband is to be held responsible for the child, and that the integrity of the family unit should not be impugned.’” [Michael H. v. Gerald D.,] 191 Cal.App.3d [995,] 1005, 236 Cal.Rptr. [810,] 816 [(1987)], quoting Vincent B. v. Joan R., 126 Cal.App.3d [619], at 623, 179 Cal.Rptr. [9], at 10 [(1981)].
“ ‘Of course the conclusive presumption not only expresses the State’s substantive policy but also furthers it, excluding inquiries into the child’s paternity that would be destructive of family integrity and privacy.’ ”

Ex parte Presse, 554 So.2d at 415 (quoting Michael H. v. Gerald D., 491 U.S. at 119-20, 109 S.Ct. 2333) (emphasis omitted).

In Ex parte C.A.P., the Alabama Supreme Court stated that when a child is born to a married mother, an alleged father’s

“interest in judicially establishing his alleged biological relationship to [a] child is outweighed by the obvious objectives of the [UPA], which are to provide for the psychological stability and general welfare of the child and to afford legitimacy to children whenever possible.”

Ex parte C.A.P., 683 So.2d at 1012 (emphasis added).

“The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature. If a statute is not ambiguous or unclear, the courts are not authorized to indulge in conjecture as to the intent of the Legislature or to look to consequences of the interpretation of the law as written.”

Ex parte Presse, 554 So.2d at 411.

In light of the above-discussed authorities, including particularly our Supreme Court’s decision in Ex parte Presse, the trial court’s judgment determining that G.H. had standing to assert his paternity of P.G.’s child is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY and PITTMAN, JJ., concur.

THOMPSON, J., concurs in the result.

      . G.H.’s petition also stated that, in the alternative, his action was filed as a declaratory-judgment action invoking the equitable powers of the DeKalb Circuit Court. Before the enactment of the UPA, we held that pursuant to Ala.Code 1975, § 6-6-222, a third party could file a declaratory-judgment action to attempt to establish his paternity of a child that had been bom to a married mother. See Anonymous v. Anonymous, 472 So.2d 640 (Ala.Civ.App.1984), writ quashed, 472 So.2d 643 (Ala.1985). In his opinion dissenting from quashing the writ in Ex parte Anonymous, 472 So.2d 643 (Ala.1985), Chief Justice Torbert, joined by Justices Embry and Beatty, stated that a third party did not have standing to file a paternity action under the newly enacted UPA and questioned whether a third party would have standing to file a paternity action pursuant to Ala.Code 1975, § 6-6-222. Ex parte Anonymous, 472 So.2d at 644.
      As to a third party's standing under the UPA, as discussed in the text of this opinion, the Alabama Supreme Court, in Ex parte Presse, 554 So.2d 406 (Ala.1989), embraced Chief Justice Torbert's dissent in Ex parte Anonymous. Ex parte Presse, 554 So.2d at 412-13. In the present case, the judgment was based upon the UPA; G.H. has not argued that the judgment could be supported based upon an independent action under § 6-6-222. However, we have stated that the UPA supersedes prior law regarding the right of a third party to establish his alleged paternity of a child who has been born to a married woman. See Foster v. Whitley, 564 So.2d 990 (Ala.Civ.App.1990); see generally Michael H. v. Gerald D., 491 U.S. 110, 125, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989)("even in modern times — when ... the rigid protection of the marital family has in other respects been relaxed — the ability of a person in [G.H.'s] position to claim paternity has not been generally acknowledged”).

      . We note that J.G. did not testify that he was sterile. He testified that P.G. had been pregnant on two other occasions during their marriage and that P.G. had prematurely given birth to a stillborn child on both occasions. He also stated that he believed that his presumed child would be his only child “unless it's a miracle from God because it’s apparent that I can’t have children.” He stated that "unless this child is mine, I'm not going to have another child — I mean, through all these years we’ve tried, and everybody seems to try to tell me I can't.”

      . J.G. and P.G. stipulated through their attorney that the DNA test results established that G.H. was the child's biological father. However, J.G. testified that “[t]he DNA test isn’t right. I still am the father.... It hasn't proved that I’m not the father.”
      G.H. argues that a "natural” parent under the UPA is a biological parent. In light of our holding in this case, we need not address that argument. However, we note that Ala.Code 1975, § 26-17-21, states that ”[i]f ... a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived.”

      . The trial court entered an order staying the effect of its judgment pending the resolution of the appeal.


author: YATES, Presiding Judge.

text:
    K.S.C.C. v. W.H.C.
    2000864.
    Court of Civil Appeals of Alabama.
    Sept. 27, 2002.
    Rehearing Denied Dec. 6, 2002.
    Certiorari Denied March 28, 2003 Alabama Supreme Court 1020493.

      Joan M. Harris, Huntsville; and Darla T. Furman of Gibbons & Furman, Hunstville, for appellant.
    Kevin D. Teague, Decatur, for appellee.
   YATES, Presiding Judge.

This is a child-custody modification case. The parties were divorced on October 10, 1996. Two children were born of the marriage, a son, born in 1994, and a daughter, born in 1996. The trial court entered an order on issues involving child custody, visitation, and child support on April 7, 1997; in that order the court awarded the mother full care, custody, and control of the parties’ minor children, subject to certain rights of visitation by the father. In 1998, the mother petitioned to modify the father’s visitation rights, alleging that the children had been sexually abused while they were visiting the father; the father moved to hold the mother in contempt. On October 13, 1998, the court issued an order denying the mother’s petition and the father’s motion.

On August 3, 1999, the mother moved for an emergency ex parte order, alleging that the daughter had been sexually abused during a visit with the father and requesting a suspension of the father’s visitation rights. On the same day, the court granted the mother’s request and set the matter for a hearing.

On August 12, 1999, the father petitioned to modify custody of the children, arguing that there had been a material change in circumstances because of the mother’s willful and intentional breach of the terms and conditions of the court’s previous orders, among other things.

Following an ore tenus proceeding, the court, on January 21, 2000, entered an order requiring the parties to undergo forensic evaluations and took the matter of the father’s visitation under advisement. On April 4, 2000, the court set the case for a hearing on May 8, 2000, at which time the court was to rule on the matter of visitation. Instead, however, the parties agreed to submit to family counseling. On May 22, 2000, the court ordered that the mother undergo a psychological evaluation; that the parties and their children begin weekly family counseling; and that a hearing be set for August 14, 2000.

On June 6, 2000, the father moved to alter the May 22, 2000, order and to have a licensed psychiatrist appointed for the children. On August 28, 2000, after a meeting with the parties in chambers, the court ordered the father to undergo a forensic examination and to meet with Julie Eth-ridge, a licensed professional counselor; that order stated that a “hearing will be set for final disposition upon motion of either party.”

In a letter addressed to the trial judge, dated August 29, 2000, Ethridge submitted a “proposed treatment/reunification plan for the children and their father.” She wrote, “[A]t the present time, I would not feel comfortable ethically to recommend any unsupervised visitation between the father and the children.”

On January 26, 2001, the father moved to set the cause for a hearing to review visitation. Following an ore tenus proceeding on April 2, 2001, at which the mother failed to appear, the court, on April 4, 2001, entered a default judgment against the mother and granted custody of the children to the father, allowing the mother supervised visitation. The court also held the mother in contempt for violating its previous orders regarding visitation and reunification of the minor children with the father. On the same day, the mother moved to set aside the default judgment; the court scheduled a hearing for May 1, 2001. On April 5, 2001, the mother moved to stay the enforcement of the default judgment pending the hearing; however, the court denied the motion.

On April 6, 2001, the father moved to hold the mother in contempt, alleging that she had absconded out of state with the children and, as a result, that the children were in the custody of child-protection services in Tennessee. The court set the father’s motion for hearing for May 1, 2001.

On May 1, 2001, the court held a hearing on the mother’s motion to set aside the default judgment and on the father’s new motion for contempt. On June 22, 2001, the mother filed a brief in support of her motion to set aside the default judgment. However, the court ordered the brief stricken, because the hearing had already been held. The record reflects that the court failed to rule on the mother’s motion to set aside the default judgment; therefore, it was denied by operation of law. We note that the trial court also faded to rule on the father’s new contempt motion. On or about May 24, 2001, the mother appealed.

The mother argues that the trial court erred in failing to set aside the default judgment. We agree.

“One primary principle of the Alabama Rules of Civil Procedure is that the parties to an action should be afforded a prompt and fair trial upon the merits. Oliver v. Sawyer, 359 So.2d 368 (Ala.1978). Inherent in this principle is that default judgments are not favored, and, while the trial court has discretion to grant such judgments, the exercise of discretion should be resolved in favor of the defaulting party where there is doubt as to the propriety of a default judgment. Welch v. G.F.C. Credit Corp., 336 So.2d 1346 (Ala.Civ.App.1976). Thus, in determining whether to grant or deny a motion to set aside a default judgment, a trial court should exercise its broad discretionary powers with liberality and should balance the equities of the case with a strong bias toward allowing the defendant to have his day in court. Kirtland [v. Ft. Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala.1988)]. Our Supreme Court, in Kirtland, established three factors that a trial court should consider in exercising its broad discretionary authority pursuant to Rule 55(c), [Ala. ]R. Civ. P.: T) 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 at 605.
“In determining whether a defendant has a meritorious defense, he need not satisfy the trial court that he would necessarily prevail at a trial on the merits, but only that he is prepared to present a plausible defense. See Ex parte Illinois Central Gulf Railroad Co., 514 So.2d 1283 (Ala.1987). The defense must be of such merit as to allow the trial court to reasonably infer that allowing the defense to be litigated could foreseeably alter the outcome of the case. Hannah v. Blackwell, 567 So.2d 1276 (Ala.1990).”

Hutchinson v. Hutchinson, 647 So.2d 786, 788 (Ala.Civ.App.1994).

During a three-day hearing in January 2000, the court heard much testimony regarding the alleged sexual abuse of the parties’ then three-year-old daughter. The mother testified that the children visited with the father from July 3,1999, until July 17, 1999. She stated that when her daughter returned home from that visit she “called me into the bathroom crying, very upset, and I asked her what was wrong and she said that her ‘foo-foo’ hurt and it was bleeding.” The mother testified that she saw blood on the toilet paper, on the bathing suit that her daughter had been wearing, and on her panties. She further stated that she “could see the blood on her vaginal area-” The mother testified that she took the daughter to the emergency room, where she was examined by John H. Ploussard, M.D. Dr. Ploussard testified that on July 18, 1999, he examined the child at the Hartselle Hospital emergency room and that after the examination he contacted DHR. He testified that the child told him that “[my stepmother] put her finger in my ‘foo-foo’.” He further stated that the child “had a small hematoma ... and an abrasion ... in the labia region,” that her “hymenal ring was intact,” but that she had a “small tear on the left inferior border of the hymenal ring from which she had been bleeding.” The doctor testified that in his expert opinion, the child had been sexually abused.

Valerie Barnett, the attending emergency room nurse, testified that the child told her that her stepmother “hurt her with a washcloth” and that “her dad had put his fingers in her bottom and her brother’s bottom.” The nurse further stated that she observed “blood smears on the inside of [the child’s] legs and the external labia.”

Linda Cordisco, a licensed professional counselor specializing in child sexual abuse at the Children’s Advocacy Center in Huntsville, testified that she performed a forensic evaluation on the child, during which the child “stayed very consistent,” identifying the father as the perpetrator of the sexual abuse. Cordisco testified that, in her opinion, the child had been sexually abused by the father.

The mother further testified that since the father’s visitation had been interrupted by order of the court, the children’s behavior had improved greatly, and “[t]hey both sleep through the night soundly. They’re not waking up in the middle of the night screaming hysterically. They’re no longer withdrawn. They’re back to their normal selves. They’re happy, active.” The mother further testified that at the time of the hearing she had been remarried for almost three years and was employed with an eye care company, earning about $48,000 a year.

Sgt. Jep H. Tallent, with the family services division of the Decatur Police Department, testified that he believed that the child’s allegations were unfounded, because the child had initially accused the stepmother then later blamed her father.

At the April 2, 2001, modification hearing, the father testified that he had not seen his daughter since July 1999, during the visit from which the allegations of sexual abuse arose. He stated that the last time he saw his son was in August 2000, during a session with a licensed professional counselor.

The father testified that he believed it would be in the best interests of the children to live with him, because during his marriage to the mother, “I was more of a parent to these children than [the mother] .... I was the one that took the children to school, picked them up from school, cooked dinner, made sure they were dressed.” He testified that since the divorce, he had remarried, and that his current wife was seven months pregnant. He stated that they currently have two children living with them in their three-bedroom home. The father testified that he earns about $18,000 a year as a photocopier service technician.

The stepmother, a social worker, testified that, in her opinion, if the father was granted custody of the children, the children were “definitely going to need counseling.” She further stated that even though the husband “is a wonderful father and wonderful husband,” either awarding him custody or rescheduling visitation with him would be traumatic for the children, although the trauma would be “short-lived.”

In reviewing the case at hand, we must apply the three-pronged analysis as set out in Kirtland v. Fort Morgan Authority Sewer Service, 524 So.2d 600 (Ala.1988). Here, the record contains voluminous evidence substantiating the mother’s claim that the parties’ minor child was sexually abused. We find that such evidence would serve as a meritorious defense for the mother against the father’s petition to modify and to hold the mother in contempt. In addition, the record reflects that the father obstructed the reunification plan with the children by refusing to pay for, and failing to attend, counseling as ordered by the court. Therefore, we find that setting aside the default judgment would not unfairly prejudice the father. Finally, the record indicates that the mother’s attorney, upon learning that the court had entered a default judgment against her client, immediately moved to set aside the default judgment and took appropriate measures to rectify the mother’s failure to appear for trial. We do not find culpability on the part of the mother or her attorney. Accordingly, we conclude that the trial court erred in refusing to set aside the default judgment.

The mother next argues that the court erred in finding her in contempt of. court for failure to abide by prior court orders. The Court of Civil Appeals has jurisdiction to hear an appeal from a finding of contempt — criminal or civil — if the finding of contempt arises out of a domestic-relations case. Tetter v. State, 358 So.2d 1046 (Ala.1978); Rule 70A, Ala. R. Civ. P. Absent an abuse of discretion, or unless the judgment of the trial court is so unsupported by the evidence as to be plainly and palpably wrong, the determination of whether a party is in contempt is within the sound discretion of the trial court. Shellhouse v. Bentley, 690 So.2d 401 (Ala.Civ.App.1997).

The court, on April 2, 2001, in addition to changing custody of the children to the father, also held the mother in contempt for her failure to abide by prior court orders. The father testified that the mother had denied him visitation on three occasions, in violation of an October 13, 1998, court order; however, he contradicted himself by admitting that on two of those occasions, it was his fault for not providing the mother with the required notice pursuant to the court’s 1998 order.

The trial court found the mother “in willful contempt for failure to obey the prior court orders.” She went on to state, “I am going to find that she has failed to allow him (father) to visit 365 days ... and she is ordered incarcerated one day for each 365 days.” The judge ordered the incarceration suspended with the following provision:

“[t]hat she will surrender the children peacefully to their father, and that she comply with the court’s orders and not interfere with his custody, and that any visitation that she receives that she will always be obligated to return the children immediately to their father, and that is assuming if you decide to let her have them without your supervision. Failure to comply with that will immediately result in a 'writ of arrest being issued for her arrest.”

After a thorough review of the record, we conclude that the trial court’s finding of contempt is unsupported by the evidence, that its finding is plainly and palpably wrong, and that the court abused its discretion.

The mother next argues that the court erred in awarding the father an attorney fee. We have stated:

“Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So.2d 928 (Ala.Civ.App.1994): ‘Factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.’ Figures v. Figures, 624 So.2d 188, 191 (Ala.Civ.App.1993). Additionally, a trial court is presumed to have knowledge from which it may set a reasonable attorney fee even when there is no evidence as to the reasonableness of the attorney fee. Taylor v. Taylor, 486 So.2d 1294 (Ala.Civ.App.1986).”

Davis v. Davis, 686 So.2d 1245, 1249 (Ala.Civ.App.1996).

In this case, the mother submitted a substantial amount of evidence, much of it from expert testimony, indicating that the minor child had been sexually abused by the father. The record reflects that the mother did everything she could to protect her children. The record indicates that the reason the mother was absent from the April 2001 hearing was because of a clerical error on the part of her attorney. We have held that the court erred in its award of custody to the father, and in failing to set aside the default judgment. After thoroughly reviewing the record, we conclude that the court’s imposition of an attorney fee in this case is punitive in nature and is not warranted.

The judgment is reversed and the case is remanded for the trial court to enter an order consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON and PITTMAN, JJ., concur.

CRAWLEY, J., concurs in the result.

      . Rule 4(a)(5), Ala. R.App. P., provides:
      “A notice of appeal filed after the entry of the judgment but before the disposition of all post-judgment motions filed pursuant to Rules 50, 52, 55, and 59, Alabama Rules of Civil Procedure, shall be held in abeyance until all post-judgment motions filed pursuant to Rules 50, 52, 55, and 59 are ruled upon; such a notice of appeal shall become effective upon the date of disposition of the last of all such motions.”

      . This, apparently, was because of the August 3, 1999, order suspending the father's visitation rights.