author: THOMPSON, Judge. MURDOCK, Judge,

text:
    GOLDOME CREDIT CORPORATION v. Joseph PLAYER and Sheila Poppell. Joseph Player and Sheila Poppell v. Goldome Credit Corporation.

      2020330.

    Court of Civil Appeals of Alabama.
    July 11, 2003.

      Thomas E. Walker, Anne P. Wheeler, and Susan T. Spence of Johnston Barton Proctor & Powell, LLP, Birmingham; and Frank S. Teel of Teel & Teel, P.C., Rockford, for appellani/cross-appellee Goldome Credit Corporation.
    George C. Douglas, Jr., of Campbell & Douglas, Sylacauga; B. Clark Carpenter, Jr., of Wooten, Thornton, Carpenter, O’Brien, Lazenby & Lawrence, Talladega; Michael J. Evans, Birmingham; and John K. Johnson, Rockford, for appellees/cross-appellants Joseph Player and Sheila Pop-pell.
   THOMPSON, Judge.

Joseph Player sued Goldome Credit Corporation and other defendants asserting a number of claims, including a claim seeking an award of an attorney fee. Player also moved the trial court to certify the action as a class action. The trial court granted Player’s motion and certified the plaintiff class. Sheila Poppell was later added as an additional class representative. The trial court conducted a jury trial as to the claims at issue between the plaintiff class and Goldome.

On February 8, 2001, the trial court entered an order, based in part on the jury’s verdict, in favor of the plaintiff class and against Goldome as to the claims of the plaintiff class against Goldome. The trial court awarded the plaintiff class certain injunctive and declaratory relief and awarded the plaintiff class and the class representatives damages. In that order, the trial court also determined that the plaintiff class was entitled to an attorney fee from Goldome, but it reserved for a later date the determination of the amount of that attorney fee. Goldome appealed to the Supreme Court of Alabama.

On September 6, 2001, our supreme court issued an order in which it found that the claims of the plaintiff class against two other defendants remained pending. The supreme court remanded the action for the trial court to certify the judgment against Goldome as final pursuant to Rule 54(b), Ala. R. Civ. P.; to adjudicate any remaining claims; or to take no action, in which event Goldome’s appeal would be dismissed. The trial court took no action, and on October 3, 2001, the supreme court dismissed Goldome’s appeal.

A little over one year later, on November 25, 2002, the trial court' again entered an order in favor of the plaintiff class and against Goldome with regard to the claims of the plaintiff class against Goldome. In its November 25, 2002, order, the trial court “expressly retain[ed] jurisdiction of the issue of an attorney fee to be awarded to counsel for the plaintiff class.” The trial court also purported to certify its November 25, 2002, order as final pursuant to Rule 54(b). Goldome appealed to our supreme court, which transferred the appeal to this court on the basis that this court had appellate jurisdiction. On appeal, Goldome raises issues pertaining to the merits of the class action and an issue concerning the trial court’s determination of its liability for an attorney fee. The plaintiff class cross-appealed.

Matters of jurisdiction are of such significance that an appellate court may take notice of them at any time ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210 (Ala.Civ.App.1997). Accordingly, we must initially determine whether the trial court’s November 25, 2002, order was properly certified as final pursuant to Rule 54(b). We conclude that it was not.

Not every order has the requisite element of finality that can trigger the operation of Rule 54(b). Moss v. Williams, 747 So.2d 905 (Ala.Civ.App. 1999). Therefore, a trial court should certify a nonfinal order as final pursuant to Rule 54(b) only “where the failure to do so might have a harsh effect.” Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ.App.1996) (overruled on other grounds, Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 753 (Ala.2000)). Rule 54(b) certifications are not to be entered routinely and should be made only in exceptional cases. Parrish v. Blazer Fin. Servs., Inc., 682 So.2d 1383 (Ala.Civ.App. 1996). “ ‘Appellate review in a piecemeal fashion is not favored.’ ” Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999) (quoting Brown v. Whitaker Contracting Corp., 681 So.2d at 229).

In James v. Alabama Coalition for Equity, Inc., 713 So.2d 937 (Ala.1997), our supreme court, among other things, addressed the issue whether an order establishing liability for an attorney fee, but not determining the amount of that fee award, was properly certified as final pursuant to Rule 54(b). Our supreme court held that the Rule 54(b) certification was not appropriate for an order that determined only the liability for an attorney-fee award but not the amount of that fee award. James v. Alabama Coalition for Equity, Inc., 713 So.2d at 942. In so holding, the court quoted from a case decided by the United States Court of Appeals for the Fifth Circuit that had reached a similar holding:

“ ‘The certification in respect to attorneys’ fees was ineffective because the whole of [the plaintiffs] claim against [the defendant] for attorneys’ fees had not been adjudicated since the amount of recoverable fees remained undetermined (and, indeed, what the magistrate purportedly certified in this regard was not the whole attorneys’ fees claim, but only the liability portion thereof).’ ”

James v. Alabama Coalition for Equity, Inc., 713 So.2d at 942 (quoting Sidag Aktiengesellschaft v. Smoked Foods Prods. Co., 813 F.2d 81, 84 (5th Cir.1987)) (emphasis in Sidag). Our supreme court noted that only a “ fully adjudicated whole claim against a party may be certified under Rule 54(b).’ ” James, 713 So.2d at 942 (quoting Sidag, 813 F.2d at 84)(empha-sis in Sidag). But see Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) (while noting that under Colorado state law the judgment would be nonfinal, the United States Supreme Court held that, applying 28 U.S.C. § 1291, a judgment that failed to resolve the issue or part of an issue pertaining to attorney fees was sufficiently final to support an appeal under federal law); State Board of Educ. v. Waldrop, 840 So.2d 893, 900 (Ala.2002) (citing Budi-nich only generally and without any decision whether the reasoning of that case applied to Alabama state law, our supreme court rejected an argument that a first order that did not address a request for an attorney fee was final and that therefore the court could not consider a second order that awarded an attorney fee and concluded that it was “inclined to reach the merits” of the attorney-fee issue).

In this case, the trial court determined Goldome’s liability on the claim of the plaintiff class seeking an award of an attorney fee, but it did not ascertain the amount of that attorney-fee award. The plaintiff class sought a total of $390,992.30 as an attorney fee. Our supreme court determined that this matter, as it is currently presented on appeal, is within the jurisdiction of this court, apparently because the damages actually awarded totaled $2,000, well within the jurisdictional limits of this court. See § 12-3-10, Ala. Code 1975 (providing that the Court of Civil Appeals has original jurisdiction of all civil cases where the amount in controversy, exclusive of interest and costs, does not exceed $50,000). However, it is possible, given the amount of the attorney fee requested by the plaintiff class, that the trial court’s determination of the amount of the attorney-fee award could exceed the jurisdictional limit of this court. Treating the November 25, 2002, order as final would result in this court having jurisdiction over the issue of liability on the attorney-fee claim and our supreme court’s having jurisdiction over the amount actually awarded on that claim. As stated earlier, the courts of this state do not favor piecemeal litigation. See Harper Sales Co. v. Brown, Stagner, Richardson, Inc., supra. This would seem particularly true in a case in which two different courts, because of their jurisdictional limitations, might be called on to review different aspects of the same request or claim for an attorney fee.

The plaintiff class’s claim with regard to an award of an attorney fee has not been fully adjudicated. We conclude, that the trial court erred in certifying its November 25, 2002, order as final pursuant to Rule 54(b). See James v. Alabama Coalition for Equity, Inc., supra; and Sidag Aktiengesellschaft v. Smoked Foods Prods. Co., supra. Therefore, that certification must be set aside. Williams v. Fogarty, 727 So.2d 831 (Ala.Civ.App.1999).

The appeal and cross-appeal are taken from a nonfinal judgment. A nonfi-nal judgment will not support an appeal. Bacadam Outdoor Advertising, Inc. v. Kennard, 721 So.2d 226 (Ala.Civ.App. 1998). Therefore, this court must dismiss the appeal and the cross-appeal.

APPEAL DISMISSED; CROSS-APPEAL DISMISSED.

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

CRAWLEY and MURDOCK, JJ., dissent.

MURDOCK, Judge,

dissenting.

The trial court’s February 8, 2001, judgment fully adjudicated the merits of the plaintiffs’ underlying substantive claims in this case and determined that the defendants should be liable to the plaintiffs for attorney fees; the trial court retained jurisdiction only to determine the amount of those fees. I therefore begin by noting that the Supreme Court’s August 31, 2001, order remanding this case to the trial court was based on the Supreme Court’s concern that the trial court’s order was not final because “the claims stated against Chemical Bank and Advanta Mortgage Corporation ha[d] not been adjudicated.” There was no mention by the Supreme Court of any concern as to the lack of finality of the trial court’s February 8, 2001, order due to the trial court’s failure to have decided the amount of attorney fees to be awarded. To the contrary, the Supreme Court gave instruction to the trial court simply to make “a determination as to whether to ... make the interlocutory order of February 8, 2001, in favor of the plaintiffs and against Goldome Credit Corporation, a final judgment pursuant to the provisions of Rule 54(b), Ala. R. Civ. P.” (Emphasis added.)

Because the trial court did not respond to the Supreme Court’s remand order within the 14 days provided in its order, the Supreme Court dismissed the appeal. However, on November 25, 2002, the trial court entered an order stating, in part:

“Upon consideration of the Alabama Supreme Court’s order of August 31, 2001, ... and upon review of the record in this case, it appears to the Court that its February 8, 2001, judgment should be made final as to the liability of Defendant Goldome Credit Corporation pursuant to Rule 54(b), Alabama Rules of Civil Procedure.”

The trial court again retained jurisdiction of the issue of the amount of attorney fees to be awarded to plaintiffs’ counsel.

I believe the Supreme Court’s remand order of August 31, 2001, is instructive. The implication of that order is that this court should now reach the merits of this appeal. Ultimately, however, my conclusion that we should proceed at this juncture to reach the merits of this appeal, while corroborated by the Supreme Court’s remand order, is based on fundamental principles regarding the relationship between attorney-fee awards and judgments on the merits of substantive claims.

The case relied upon in the main opinion, James v. Alabama Coalition for Equity, Inc., 713 So.2d 937 (Ala.1997), is distinguishable from the present case. If anything, portions of the James opinion support the conclusion that the trial court’s November 25, 2002, order is a final, appealable judgment.

In contrast to the present case, the only claim involved in James was a claim for attorney fees. On March 31,1993, the trial court in James entered its judgment on the merits of the plaintiffs’ substantive claims in what the Supreme Court’s opinion refers to as the “Liability Phase” of that case. On June 9, 1993, the trial court certified its judgment on the plaintiffs’ substantive claims as final pursuant to Rule 54(b). On the same day, the trial court entered a separate order stating that it was awarding attorney fees to the plaintiffs, but reserving the issue of the amount of those fees. The trial court also purported to certify this attorney-fee order as a separate, final judgment pursuant to Rule 54(b). No appeal was taken from any of the trial court’s orders.

On November 19, 1996, the trial court entered an order setting the amount of attorney fees to be awarded to the plaintiffs’ counsel for the Liability Phase of the lawsuit. On appeal, the Supreme Court remanded the case to the trial court for it to certify the November 19, 1996, order awarding attorney fees as a separate, final judgment pursuant to Rule 54(b). It was only this separate, final judgment as to the plaintiffs’ attorney-fee claim that was the subject of the appeal in James.

The James Court first addressed the issue whether the trial court’s original June 9, 1993, attorney-fee order (finding the defendants liable for the plaintiffs’ attorney fees, but not setting the amount of those fees) had been properly certified by the trial court, on its own initiative, as a final judgment pursuant to Rule 54(b). The Supreme Court concluded that it had not been; therefore, the Supreme Court concluded that the order had not been appealable at the time it was entered. As the Supreme Court explained:

“Not every order has the element of finality necessary to trigger the application of Rule 54(b). Tanner v. Alabama Power Co., 617 So.2d 656, 656 (Ala.1993) (Rule 54(b) ‘confers appellate jurisdiction over an order of judgment only where the trial court “has completely disposed of one of a number of claims, or one of multiple parties.” ’).”

James, 713 So.2d at 941 (some emphasis in Tanner; some emphasis added).

Unlike the single claim on appeal in James, which was not completely disposed of prior to that appeal, and therefore was not appropriate for Rule 54(b) treatment, the present case involves an appeal of a judgment “completely disposing of ... a number of claims,” namely, the plaintiffs’ substantive claims. The question of finality of the trial court’s judgment would not even be at issue in this case in light of the trial court’s Rule 54(b) certification of its judgment if that judgment did not also contain a reference to the fact that the trial court was awarding attorney fees, but not yet setting the amount of those fees.

The James Court’s discussion of the judgment on appeal in that case, however, reviews fundamental and well-established principles that, in and of themselves, should dispel any concern that the trial court’s inclusion in its judgment in the present case of a statement that it was awarding attorney fees prevents that judgment from being considered final as to the substantive claims that are fully addressed therein. I particularly refer to the Supreme Court’s discussion in James of “a related argument” made by certain defendants to the effect that even the trial court’s March 31, 1993, Liability Phase order was not properly certifiable under Rule 54(b). 713 So.2d at 942. The Supreme Court reasoned that the 1993 Liability Phase order of the trial court was properly certifiable as a Rule 54(b) final judgment, noting, among other things, as follows:

“This Public School Equity Funding Case is qualitatively different from these ‘damages’ cases and is subject to the well-established rule stated in Ex parte Elyton Land Co., 104 Ala. 88, 91, 15 So. 989, 940 (1894):
“ ‘The test of the finality of a decree to support an appeal is not whether the cause remains in fieri, in some respects, in the court of chancery, awaiting further proceedings, necessary to entitle the parties to the full measure of the rights it has been declared they have; but whether the decree which has been rendered, ascertains and declares these rights — if these are ascertained and adjudged, the decree is final and will support an appeal.’
“(Emphasis added [in James ].) The question in Elyton Land Co. was whether a decree entered in favor of Rebecca Denny, who had sought an assignment of her dower rights in real estate held by her late husband, was final and ap-pealable. 104 Ala. at 91, 15 So. at 939-40. The Court noted that a number of issues remained to be determined, stating:
“ “Whether dower should be assigned by metes and bounds; or whether compensation should be decreed in lieu of such assignment; which of the defendants should be charged with the payment of rents, for what parts of the lands, and what portions; whether the rents should be computed on the basis of the enhanced value of the lands because of the improvements, or without regard to such improvements, were incidents, consequential to the decree the court had rendered, adjudging that the complainant was entitled to be endowed of the lands; essential to the execution of that decree, and to confer upon her the possession and enjoyment of the rights, the decree adjudged she was entitled to have and enjoy.’
104 Ala. at 91-92, 15 So. at 940 (emphasis added [in James ]). However, the Court declared that the essential facts, the finding of which was necessary to the entry of a final decree, were: ‘the marriage, the seisin of the husband during coverture, his death and the possession of the lands, claiming to be tenants of the freehold, by the defendants charged to be in possession and so claiming.’ 104 Ala. at 90, 15 So. at 940. It explained: ‘These facts constitute the equity of the case; they embrace the substantial merits of the controversy; from them arise the material issues of fact and of law, upon which the legal and equitable rights of the parties depend.’ Id. Concluding that the ‘decree ascertained] and declared] the concurrence and coexistence of [the essential] facts; and from them deduced] the legal conclusion,’ the Court held that the decree was final and appealable. 104 Ala. at 90, 91,15 So. at 940.
“... In Newton[ v. Ware, 271 Ala. 444, 124 So.2d 664 (1960) ], we said:
“ ‘Equity decrees may be partly final and partly interlocutory. A decree which ascertains and declares the rights of the parties and settles the equities is a final decree, although it provides for further proceedings under the direction of the court in order to carry the decree into effect. If there is a decree directing further proceedings under the direction of the court in order to make the final decree effective, such decree is interlocutory and remains within the control of the court because as to such decree and further proceedings thereunder the cause remains in fieri.’
271 Ala. at 450, 124 So.2d at 670, quoted in Taylor[ v. Taylor, 398 So.2d 267 (Ala.1981),] and Sexton[ v. Sexton, 280 Ala. 479, 195 So.2d 531 (1967) ].
“Even more significantly from the point of view of this case, ‘[i]n equity cases there can be more than one final judgment from which an appeal may be taken.’ Norris v. Norris, 406 So.2d 946, 948 (Ala.Civ.App.1981) (emphasis added [in James]); see also Chadwick v. Town of Hammondville, 270 Ala. 618, 621, 120 So.2d 899, 902 (1960). This is so because ‘there may remain ... other matters in which the equities have not been settled or proceedings necessary to enforce the judgment previously entered. A court has inherent power to issue such orders or process as necessary to render its judgment effective.’ 406 So.2d at 948; Monroe v. Monroe, 356 So.2d 196 (Ala.Civ.App.1978).”

James, 713 So.2d at 944-45 (emphasis added).

In addition to the above-discussed principles, it is important to note that, ultimately, the James Court relied principally on two cases: Sidag Aktiengesellschaft v. Smoked Foods Products Co., 813 F.2d 81 (5th Cir.1987), and Fort v. Roadway Express, Inc., 746 F.2d 744, 747 (11th Cir. 1984). As in James, the only claim presented for consideration by the appellate court in Sidag and in Fort was a claim for attorney fees; the finality, for purposes of appeal, of the trial court’s judgments on the underlying substantive claims in both Sidag and Fort was not at issue in those appeals. Thus, like the James case itself, the two principle cases relied upon in James are distinguishable from the present case.

The opinion of the Eleventh Circuit Court of Appeals in Fort is particularly instructive. The Court of Appeals recognized the “long-standing rule that a determination as to liability, prior to a determination on the issue of damages or other relief requested, is not a final appealable judgment,” 746 F.2d at 747, and, therefore, it concluded that the trial court’s “order finding [the plaintiff] liable for fees without determining the amount thereof [was] not a final appealable judgment tuith regard to the issue of attorney’s fees,” 746 F.2d at 747 (emphasis added), but that the trial court “contemplated further proceedings before entering a final judgment on the issue of attorney’s fees,” 746 F.2d at 747. In so holding, the Court of Appeals specifically “distinguished” the case before it from

“the question of whether an order resolving all of the issues in a case except the award or amount of attorney’s fees is a final appealable judgment on the merit of the substantive issue. In McQurter v. City of Atlanta, 724 F.2d 881, 882 (11th Cir.1984), we held that whether such an order is final depends on whether the issue of attorney’s fees is ‘collateral to an action’ or ‘an integral part of the merits of the case and the scope of relief.’ (quoting Holmes v. J. Ray McDermott & Co., 682 F.2d 1143, 1146 (5th Cir.1982), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983)). See also C.I.T. Corp. v. Nelson, 743 F.2d 774, 775 (11th Cir.1984).”

746 F.2d at 747 n. 6. Because it is that latter “question,” as identified by the Eleventh Circuit Court of Appeals in Fort, that is at issue in the present case — i.e., “whether an order resolving all of the issues in a case[] except the award or amount of attorney’s fees is a final appeal-able judgment on the merit of the substantive issue” — neither Fort, nor Sidag, nor James supports the conclusion that the trial court’s judgment presented for our consideration in the present case is not a final appealable judgment on the merits of the substantive issues addressed therein.

Moreover, the holding in McQurter v. City of Atlanta, 724 F.2d 881, 882 (11th Cir.1984), relied upon in Fort has now been abrogated by the United States Supreme Court’s decision in Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988), which embraces a uniform, “bright-line” rule. Under this bright-line rule, an unresolved issue of attorney fees does not prevent a judgment on the merits from being final and immediately appealable.

Budinich involved a judgment in favor of a petitioner who sought employment compensation under Colorado state law in the United States District Court for the District of Colorado. The trial court awarded a verdict of $5,000 to the petitioner, considerably less than had been sought. The petitioner filed a postjudgment motion for a new trial, along with a motion for attorney fees. The trial court entered an order denying the petitioner’s new-trial motion, finding that the petitioner was entitled to attorney fees, and reserving a ruling on the amount of those fees pending receipt of further briefing and documentation. As such, the case was postured for all material purposes identically to the ease now before this court. See 486 U.S. at 197-98, 108 S.Ct. 1717.

The question before the Supreme Court in Budinich was also the same as the question before this court: “[Wjhether a decision on the merits is a ‘final decision’ ... when the recoverability or amount of attorney’s fees for the litigation remains to be determined.” 486 U.S. at 199, 108 S.Ct. 1717. Among other things, the Supreme Court reasoned:

“As a general matter, at least, we think it indisputable that a claim for attorney’s fees is not part of the merits of the action to which the fees pertain. Such an award does not remedy the injury giving rise to the action, and indeed is often available to the party defending against the action. At common law, attorney’s fees were regarded as an element of ‘costs’ awarded to the prevailing party, see 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil § 2665 (1983), which are not generally treated as part of the merits [of the] judgment, cf. Fed. Rule Civ. Proc. 58 (‘Entry of the judgment shall not be delayed for the taxing of costs’). Many federal statutes providing for attorney’s fees continue to specify that they are to be taxed and collected as ‘costs,’ see Marek v. Chesny, 473 U.S. 1, 43-48 (1985) (Brennan, J., dissenting) (citing 63 such statutes) — as does, in fact, the Colorado statute at issue here.”

Budinich, 486 U.S. at 200-01, 108 S.Ct. 1717. Noting that “ ‘[t]he considerations that determine finality are not abstractions but have reference to very real interests,’ ” 486 U.S. at 201, 108 S.Ct. 1717 (quoting Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 69, 68 S.Ct. 972, 92 L.Ed. 1212 (1948)), the Supreme Court proceeded to reason that an otherwise final decision that leaves open the amount of attorney fees to be awarded to one party or another constitutes a “final decision” for purposes of appeal.

The Alabama Supreme Court recently indicated that Alabama law follows the holding in Budinieh, noting that “a decision on the merits disposing of all claims is a final decision from which an appeal must be timely taken, whether [or not] a request for attorney fees remains for adjudication.” State Bd. of Educ. v. Waldrop, 840 So.2d 893, 899 (Ala.2002) (citing Budinich ).

The main opinion expresses concern over the potential for “piecemeal” appeals to two different appellate courts in the event this court exercises jurisdiction over this appeal and, hereafter, the trial court makes an award of attorney fees within the exclusive appellate jurisdiction of our Supreme Court. First and foremost, in response to this concern, I would note that the legal principles that I believe require us to decide this case on its merits at this time are sound and are binding upon us. We are addressing in this case fundamental issues as to the finality of judgments. It is therefore the established legal principles discussed above that, in my opinion, must govern our holding.

Second, the potential for “piecemeal” appeals already exists and is a necessary result of the manner in which the Legislature has chosen to divide the jurisdiction of appeals in civil cases between this court and our Supreme Court. For example, either this court or our Supreme Court could, in a given case, remand a cause for a new trial or for the entry of a new judgment. If that remand results in a judgment not within the exclusive appellate jurisdiction of the court ordering the remand, an appeal of that judgment necessarily must be taken to the other appellate court. Another example would be a trial court certifying as final under Rule 54(b) a judgment within the exclusive appellate jurisdiction of either this court or our Supreme Court, only to subsequently enter a judgment within the exclusive appellate jurisdiction of the other of these two courts as to the remaining claims in the case. I do not find such results particularly troubling, and I certainly do not find them justification for not applying the fundamental rules of finality of judgments. In any event, such results are the result of legislative action, which this court is not free to address. It may be noted, however, that in any given case where our Supreme Court is confronted with an appeal within its appellate jurisdiction in a case in which some earlier judgment in the case was considered by this court, the Supreme Court does have the authority to address any concern over judicial economy by deflecting the latter appeal to this court.

Accordingly, I must respectfully dissent from the decision of this court to dismiss the present appeal as not being from a final judgment.

CRAWLEY, J., concurs.

      . Rule 58, Fed.R.Civ.P., was amended after the United States Supreme Court’s decision in Budinich v. Becton Dickinson & Co., supra. That rule now provides that, although the entry of judgment may not be delayed in order to award an attorney fee, upon a timely motion by a party, the court may treat a request for an attorney fee as a postjudgment motion. As the “Notes of Advisory Committee on 1993 Amendments” to Rule 58, Fed. R.Civ.P., state, "in many cases it may be more efficient to decide fee questions before an appeal is taken so that appeals relating to the fee award can be heard at the same time as appeals relating to the merits of the case.”

      . The record reflects that this order was filed on September 6, 2001.

      . Over three years passed between the “Liability Phase” judgment in James and the eventual award of attorney fees relating thereto. The magnitude and nature of an ongoing case such as the James case, and the need for the trial court in such cases often to conduct what amounts to separate litigation over attorney fees and/or to address on more than one occasion during the course of such a case the issue of ongoing accrual of attorney fees, illustrates the practical necessity of allowing enforcement and appeal of the court's underlying substantive judgment to proceed as from a final judgment, rather than being postponed indefinitely pending litigation of the attorney-fee issue.

      . Obviously, the trial court's November 25, 2002, order in the present case left the claims against defendants Chemical Bank and Ad-vanta Mortgage Corporation unresolved. However, the trial court’s November 25, 2002, order certifying its February 8, 2001, judgment as final pursuant to Rule 54(b) caused that judgment to take on the same finality as to Goldome, effective November 25, 2002, that it would have had if Goldome had been the only defendant in the case.

      . The appeal in Budinieh was made from a trial court to the Tenth Circuit Court of Appeals pursuant to 28 U.S.C. § 1291, the statute providing that federal courts of appeal generally have jurisdiction of appeals from final decisions of federal district courts.

      . I do not agree with the main opinion’s parenthetical characterization of our Supreme Court’s analysis in Waldrop. I would first note that the Court began its discussion of the issue at hand by clearly and unequivocally "recognizing” that a decision on the merits disposing of all claims other than a request for attorney fees is final for purposes of appeal and citing Budinieh, without any caveat, for this principle. Secondly, any hesitation by our Supreme Court, as alluded to in the main opinion’s parenthetical description of the Waldrop Court's opinion, came later in the opinion in a discussion of the separate issue whether the fact that the order was final for purposes of appeal, and indeed was labeled as a "Final Order,” actually deprived the trial court of jurisdiction to later rule on an attorney-fee request when it had not reserved that issue in its judgment. In the present case, the question of the trial court’s jurisdiction to enter a subsequent order awarding attorney fees is not at issue; the trial court reserved the issue in the judgment from which the current appeal is taken.

      .The only way to avoid "piecemeal” appeals in all cases where attorney-fee issues are raised would be to always prevent the execution and appeal of otherwise final judgments on the merits until such time as the trial court addresses the attorney-fee issue. I suggest the resulting delay in the execution of judgments, and the appeal of those judgments, would in many cases be at least as great a concern for the administration of justice as would be separate appeals to two different courts.


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    Avis L. JOHNSON v. INVESTMENT COMPANY OF THE SOUTH, L.L.C., et al.
    2020418.
    Court of Civil Appeals of Alabama.
    July 11, 2003.

      Cecil G. Duffee III of The Duffee Firm, L.L.C., Birmingham, for appellant.
    Tom E. Ellis and Jon K. Vickers of Law Offices of Tom E. Ellis, L.L.C., Birmingham, for appellees.
   THOMPSON, Judge.

Avis L. Johnson sued Oxmoor Ridge Apartments; Investment Company of the South, Inc.; Investment Company of the South, L.L.C.; Dutch Manor Partners, Ltd.; and ICS Management, Inc. (hereinafter together referred to as “the defendants”), seeking damages for an injury she sustained on January 3,1999, on the premises of Oxmoor Ridge Apartments (“the apartments”). The defendants denied liability, and the case was tried before a jury. At the close of Johnson’s case, the defendants moved for a judgment as a matter of law pursuant to Rule 50, Ala. R. Civ. P. After hearing arguments on that motion, the trial court granted the motion and entered a judgment in favor of the defendants. Johnson appealed, and this case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.

“An appellate court, when reviewing a ruling on a motion for a judgment as a matter of law, uses the same standard the trial court used initially in granting or denying the motion. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11,1987, the nonmovant must present ‘substantial evidence’ in order to withstand a motion for a judgment as a matter of law. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, supra, at 1353. In reviewing a ruling on a motion for a judgment as a matter of law, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).”

Bell v. T.R. Miller Mill Co., 768 So.2d 953, 956 (Ala.2000) (footnote omitted).

The record indicates that Johnson had been a tenant of the apartments for more than a year. Johnson testified that she first lived in Building 411, apartment number 7 beginning in March 1997. Johnson explained that, at that time, she paid the rent called for under the lease agreement, but her mother was listed on the lease agreement as the tenant leasing the premises. Johnson testified that on September 1, 1998, she entered into an agreement to lease apartment number 7 in her own name. It is undisputed that Johnson immediately fell behind in her rent.

Johnson testified that in mid-November 1998 she received a letter from Jim Sande-fer, the attorney for the apartments, regarding her failure to pay her rent pursuant to the lease agreement. That letter stated, in pertinent part:

“YOU ARE HEREBY NOTIFIED, that in consequence of your default in the failing to pay rent in accordance with your lease or rental agreement concerning the above-referred to premises, that your possessory interests in said premises will terminate TWENTY FOUR (24) HOURS after the service of this Notice. You are then to deliver possession of the said premises to me or my agent or an Unlawful Detainer Action will be filed against you. Should you want to reinstate your lease, you must contact me immediately.”

Johnson stated that she contacted San-defer in November 1998 and again in December 1998; she did not pay any installments of her rent due under the lease agreement during those months. Johnson testified that Sandefer instructed her to move out of apartment number 7. Johnson first testified that Sandefer did not give her an exact date by which to remove her belongings from the apartment, but she later stated that in the third week of December 1998 Sandefer agreed to allow her to stay in the apartment until the first week of January 1999. It is undisputed, however, that in November 1998 Sandefer, on behalf of some of the defendants, instituted an unlawful-detainer action against Johnson and that the court hearing that action entered a default judgment against Johnson on December 2, 1998. On December 17, 1998, the court in which the unlawful-detainer action was filed issued a writ of execution of its December 2, 1998, judgment in that action. Johnson testified at trial, however, that she had no knowledge of the unlawful-detainer action, the judgment in that action, or the writ of execution issued in that action until after she suffered the injury for which she seeks compensation in this action.

Johnson testified that the manager of the apartments had left her employment in the fall of 1998 and that a notice posted near Johnson’s mailbox instructed tenants, if they wanted to discuss leasing issues, to speak with the manager of another apartment complex, which was presumably also owned by some of the defendants. Johnson testified that in December 1998 she spoke to someone at the other apartment complex regarding her request for additional time to move out of the apartment. Although there were several discrepancies in Johnson’s testimony regarding the details of her agreement with the unidentified person at the other apartment complex, the essence of Johnson’s testimony was that that person agreed that, if Johnson removed her belongings and cleaned her apartment, she could turn in her keys to apartment number 7 during the first week of January 1999.

On the night of January 3, 1999, as Johnson returned to the apartment to retrieve the last of her belongings, she slipped on some ice in the apartments’ parking lot and fell. As a result of that fall, Johnson suffered a broken leg. The evidence tended to indicate that it had rained for the two days before January 3, 1999, that water had been standing in the parking lot during that time, and that, on the night of January 3, 1999, it was very cold outside. At the trial, Johnson insisted that she did not see the ice in the parking lot and that she had no reason to suspect that there might be ice in the parking lot. She also insisted that the defendants knew or should have known of the hazardous condition of the parking lot and should have warned her of that condition. .

During the trial, Itell Linson, another tenant of the apartments, testified on behalf of Johnson. Linson testified that ice tended to form in the parking lot each year in the winter if temperatures fell below freezing during or soon after a rain. Lin-son also stated that the apartment management set out signs warning of the dangers of ice; however, she could not say when those signs were set out or whether they were set out before or after Johnson’s January 3, 1999, fall. As Linson readily admitted, one part of her testimony was different from a portion of a sworn statement she had made to the investigator for Johnson’s attorney; as detailed later in this opinion, Linson explained the reason for that discrepancy. Johnson sought repeatedly to have Linson’s written statement admitted into evidence, but the trial court repeatedly sustained the defendants’ objections to the admission of that statement.

Also during the trial, Johnson called Andrew Graettinger, Ph.D., as an expert witness in the field of geotechnical engineering. Johnson sought repeatedly to elicit from Dr. Graettinger his opinion regarding certain conditions of the parking lot; each time, however, the defendants objected, usually on the basis of relevance and Johnson’s failure to lay a proper predicate for Dr. Graettinger’s opinion testimony. The trial court sustained the vast majority of those objections.

After Johnson rested her presentation of evidence, the defendants moved for a judgment as a matter of law. As it began receiving arguments on the motion for a judgment as a matter of law, the trial court found that, given the applicable law and the evidence that had been presented thus far in the trial, Johnson had not presented sufficient evidence to establish that she was an invitee on the apartments’ premises at the time of her fall. The trial court therefore instructed the parties to address the defendants’ motion for a judgment as a matter of law “from that standpoint.” While arguing their respective positions on that motion, the defendants contended that Johnson was a trespasser, and Johnson argued only the issue of wantonness, apparently in an effort to contend that she was a licensee at the time of her fall. Johnson did not object to the trial court’s finding that she was not an invitee; she did not argue against that finding; and she did not request permission to place an argument on the record with regard to her possible status as an invitee.

On appeal, Johnson argues that the trial court erred in granting the defendants’ motion for a judgment as a matter of law because, she contends, she was an invitee on the apartments’ premises at the time of her January 3, 1999, fall in the apartments’ parking lot. However, as stated above, Johnson did not argue before the trial court that she was an invitee. It is well settled that this court may not consider an issue that the appellant raises for the first time on appeal. Alfa Mut. Gen. Ins. Co. v. Oglesby, 711 So.2d 988 (Ala.1997); Abbott v. Hurst, 643 So.2d 589 (Ala.1994); McLemore v. Fleming, 604 So.2d 353 (Ala.1992).

Even assuming that the issue of Johnson’s possible status as an invitee was preserved for appellate review, Johnson cited only two cases in support of her argument on this issue in her brief to this court. Johnson argued in her brief on appeal only that she was an invitee because she conferred a benefit upon the defendants; she cited Collier v. Necaise, 522 So.2d 275 (Ala.1988), in support of her argument that one who confers a material or commercial benefit upon a landowner enjoys the status of an invitee. Johnson contends that she conferred a material or commercial benefit upon the defendants by agreeing to remove her belongings from the apartment and to clean the apartment upon her departure by performing such tasks as removing food from the apartment and vacuuming. In her brief on appeal, Johnson also cited Central Parking System of Alabama v. Steen, 707 So.2d 226 (Ala.1997), for the proposition that the issue of her status at the time of her fall is a question for the jury to resolve. However, a tenant who has held over after the expiration of the term of his or her lease, or after the termination of that lease by an action such as the unlawful-detainer action instituted in this case, has the duty to peaceably surrender possession of the leased premises. Reynolds v. Bryant, 281 Ala. 372, 202 So.2d 734 (1967); Solomon v. Rogers, 210 Ala. 423, 98 So. 370 (1923). We cannot say that Johnson’s removal of her own belongings and her cleaning the apartment amounted to more than her fulfillment of her duty to peaceably surrender possession of the leased premises or that those acts conferred a material or commercial benefit upon the defendants such as would elevate her status to that of an invitee. See Cottier v. Necaise, supra.

Also as to this issue, Johnson, for the first time in her reply brief, asserted that she was an invitee because she was a tenant injured in a common area of the apartments’ premises. In her reply brief, Johnson cites a number of cases in support of that argument, including Gentle v. Pine Valley Apartments, 631 So.2d 928 (Ala. 1994); Campbell v. Valley Garden Apartments, 600 So.2d 240 (Ala.1992); and Mil ler v. Archstone Communities Trust, 797 So.2d 1099 (Ala.Civ.App.2001). However, “[bjecause [Johnson] did not raise this issue in [her] initial brief or at trial, we ‘will simply treat such [issue] as not before the Court.’ ” New Plan Realty Trust v. Morgan, 792 So.2d 351, 364 (Ala.2000) (quoting Kennesaw Life & Accident Ins. Co. v. Old Nat’l Ins. Co., 291 Ala. 752, 754, 287 So.2d 869, 871 (1973)) (emphasis added). See also Byrd v. Lamar, 846 So.2d 334 (Ala. 2002); C & S Family Credit of Alabama, Inc. v. McNairy, 613 So.2d 1232 (Ala. 1992); Improved Benevolent & Protective Order of the Elks of the World v. Moss, 855 So.2d 1107 (Ala.Civ.App.2003). Also, an appellate court may not reverse a judgment on a ground or argument not advanced before the trial court. Ex parte Ryals, 773 So.2d 1011 (Ala.2000); Kitchens v. Maye, 623 So.2d 1082 (Ala.1993); Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala. 1988).

Given the arguments Johnson made before the trial court and before this court, we cannot say that she has demonstrated that she presented sufficient evidence on the issue of her alleged status as an invitee to allow that issue to be presented to the jury. See Bell v. T.R. Miller Mill Co., supra. Therefore, Johnson’s status at the time of the January 3, 1999, incident was either that of a licensee or a trespasser. For the purposes of this opinion, we will give Johnson the benefit of the doubt and assume that she was a licensee at the time of her January 3, 1999, fall. Johnson contends that, even assuming she was a licensee, there was sufficient evidence to defeat the defendants’ motion for a judgment as a matter of law and to justify submitting her wantonness claim to the jury. We first briefly address some evidentiary issues Johnson raised in order to determine whether that evidence was admissible before reaching the issue of whether Johnson presented sufficient evidence to submit her wantonness claim to the jury.

Johnson maintains in her brief on appeal that the trial court erred in excluding “the written statement and testimony” of Itell Linson, the witness who testified on behalf of Johnson and who had, at the time of the trial, been a resident at the apartments for 14 years. In her brief on appeal, Johnson alleges that the trial court improperly sustained the defendants’ objections, which were based on the grounds of relevancy, to some of Linson’s testimony; that the trial court did not allow her to properly question Linson regarding an allegedly “inconsistent written statement”; and that the trial court improperly refused to allow her to submit Linson’s written statement into evidence.

During the trial, Johnson’s initial questioning established Linson’s name and that she had lived in the apartments for a number of years. Johnson then immediately began to attempt to question Linson regarding a written statement she made in 2001. Johnson failed, however, to first actually question Linson about her knowledge of any facts pertinent to this action or about the facts set forth in the written statement. The defendants objected repeatedly, citing a lack of relevance as the grounds, to Johnson’s inquiries regarding whether Linson had signed the statement, whether it was truthful, and whether she had intended to make a truthful statement in executing the written statement. The trial court sustained those objections and informed Johnson that, given Linson’s testimony up and until that time, Johnson had not reached a point at which she needed to refer to the written statement.

Johnson then began repeatedly questioning Linson regarding an alleged inaccuracy in her written statement, and the defendants again objected. Johnson responded that she wanted to question Lin-son regarding her written statement, and she maintained that the “statement says something different than what [Linson is] saying.” Outside the presence of the jury, the trial court sustained the defendants’ objection and informed Johnson that she had not yet established the need to use Linson’s written statement because Linson had not yet testified in a manner inconsistent with that statement.

Linson eventually testified that, although her written statement indicated that she had complained to the management of the apartments about ice in the parking lot, she had not, in fact, made such a complaint. Linson testified that she spoke with an investigator hired by Johnson and that the investigator wrote the written statement she signed. Linson explained that she was in a hurry to leave for church when she spoke with the investigator and that she signed the statement without reading it. Linson also testified that the investigator promised to send her a copy of the written statement but that he had not done so. On questioning by the defendants, Linson testified that she had first seen the written statement the day before the trial and that she informed Johnson’s attorney that the assertion contained in the written statement that she had complained to the managers of the apartments regarding ice was not accurate. Linson also stated she would have informed Johnson’s attorney of the inaccuracy in the written statement sooner had she seen it earlier.

As Johnson points out, “[t]he credibility of a witness may be attacked by any party.” Rule 607, Ala. R. Evid. With regard to the admission of extrinsic evidence such as a written statement that might be used to attack a witness’s credibility, Rule 613(b), Ala. R. Evid., provides, in pertinent part:

“(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness has been confronted with the circumstances of the statement with sufficient particularity to enable the witness to identify the statement and is afforded an opportunity to admit or to deny having made it.”

Johnson argues that the trial court’s evidentiary rulings prevented her from confronting Linson and giving Linson an opportunity to deny the contents of her written statement. However, our review of the record indicates otherwise. Johnson improperly, and repeatedly, attempted to “impeach” Linson with the facts set forth in her written statement before Lin-son had an opportunity to testify in a manner that contradicted the contents of that statement. During the line of questioning to which the defendants objected, Johnson did not ask Linson whether she had made any complaint regarding ice in the parking lot to the apartment managers; rather, Johnson repeatedly asked Linson whether she had previously made the statement that she had complained to the management. The trial court did not abuse its discretion in sustaining the defendants’ objections as to Johnson’s improper attempts to impeach Linson before Linson testified in a manner that contradicted her written statement.

When Johnson finally asked Lin-son whether she had complained to the management of the apartments regarding ice in the parking lot, Linson denied doing so but admitted that, in her written statement, it stated that she had complained about ice in the parking lot. As detailed previously, however, Linson admitted and explained the inconsistencies between her trial testimony and her written statement. Had Linson denied making the statement contained in her written statement, Johnson might arguably be entitled to have the written statement admitted into evidence in order to establish that Linson had made contradictory statements. However, in this case, Linson admitted that the two statements were contradictory; the content of the written statement was evidence that was already before the court and the jury. Therefore, the admission into evidence of the written statement was not necessary.

The comments to Rule 613(b) are also instructive. Those comments point out that, if a witness admits making a prior inconsistent statement, the party seeking to impeach the witness on that basis is precluded from using extrinsic evidence to prove the existence of the statement already acknowledged. Rule 613(b), Ala. R. Evid., “Advisory Committee’s Notes” (citing Usrey v. State, 36 Ala.App. 394, 56 So.2d 790 (1952)).

“It is, of course, permissible and proper to attempt to attack the credibility of a witness by showing that at a prior time and place he made a statement which was at variance with or contradictory to the testimony he gave at the instant trial. However, before this privilege is extended, the witness must first deny that he made the prior statement. Otherwise no occasion for impeachment arises.”

Usrey v. State, 36 Ala.App. at 396, 56 So.2d at 793.

Johnson was allowed to present evidence that Linson’s written státement was, with regard to the issue about which Johnson questioned her, different from her trial testimony. Linson admitted and attempted to explain the inconsistency between the written statement and her testimony. Given Rule 613(b) and the authority of Usrey v. State, supra, we cannot say that the trial court erred in refusing to admit into evidence Linson’s written statement.

Johnson next argues that the trial court erred in refusing to allow her witness, Dr. Andrew Graettinger, to testify as an expert regarding his opinion concerning certain aspects of the condition of the parking lot in which Johnson fell. In essence, Johnson expected Dr. Graettinger’s testimony to be that it was his opinion that after a rain a ground-water table located under the parking lot in which Johnson had fallen continued to “exude” water for some time and that, as a result, the parking lot would remain wet.

In her brief on appeal, Johnson quotes at length from a discussion in Hollis v. Scott, 516 So.2d 576, 579-81 (Ala.1987), regarding the predicate that must be established for expert opinion testimony to be admissible. Although several points could be made pertaining to this issue, we find the following to be dispositive of this issue.

Johnson’s injury occurred on January 3, 1999. The evidence at trial established that, in March 2002, Dr. Graettinger first observed the parking lot in which Johnson fell; he did so without leaving his automobile. Dr. Graettinger testified that later, in April 2002, he conducted an “experiment” by having his wife take photographs of the parking lot after a rain. He first took his wife to the parking lot to instruct her as to which areas of the parking lot to photograph; he stated that in doing so he left his vehicle and walked around the parking lot. Relying on the photographs his wife took of the parking lot, plus some weather data for April 2002 and September 2002, Dr. Graettinger reached a conclusion about water flow on or under the parking lot.

The trial court, however, sustained the defendants’ objections to allowing Dr. Graettinger to testify regarding that opinion. In doing so, the trial court, among other things, asked Johnson to explain how the weather conditions under which Dr. Graettinger’s experiment was conducted pertained to the conditions that existed in January 1999, more than three years earlier, when Johnson fell in the parking lot. Johnson replied that the experiment demonstrated that water flowed from the parking lot on a recurrent basis and that “to have ice, you have to have water.” The trial court again sustained the defendants’ objection.

The admission of evidence is within the trial court’s discretion. Johnson contends that the trial court disallowed Dr. Graettinger’s testimony because it incorrectly concluded that he was not properly qualified. Whether a witness is allowed to testify as an expert is a matter left to the sound discretion of the trial court. Southern Energy Homes, Inc. v. Washington, 774 So.2d 505 (Ala.2000); Ellingwood v. Stevens, 564 So.2d 932 (Ala. 1990); Maslankowski v. Beam, 288 Ala. 254, 259 So.2d 804 (1972). The scope of the matters upon which a witness offered as an expert is allowed to testify is also a matter within the trial court’s discretion. W.S. v. T.W., 585 So.2d 26 (Ala.1991); Ellingwood v. Stevens, supra; Bergob v. Scrushy, 855 So.2d 523 (Ala.Civ.App.2002). We note that it was late in Dr. Graettinger’s testimony before Johnson actually offered Dr. Graettinger as an expert, and, when she did so, the trial court indicated that it would accept Dr. Graettinger as an expert. However, the scope of the matters to which the trial court could allow Dr. Graettinger to testify remained in the trial court’s discretion. See W.S. v. T.W., supra; Bergob v. Scrushy, supra.

The transcript of the trial indicates that the trial court repeatedly informed Johnson that she must lay the proper predicate for the admission of Dr. Graettinger’s opinion testimony.

“The party seeking to introduce the expert testimony must lay the proper predicate.
“First, the expert testimony must be beyond the ken of the average juror. Ex parte Hill, 553 So.2d 1138 (Ala.1989).
“Second, the person testifying must be qualified as an expert. The competency and qualifications of a person offered as an expert witness are largely left to the trial court’s discretion. ...
“Third, the expert witness must base his or her opinion upon either (1) facts of which the witness has firsthand knowledge or (2) facts that are assumed in a hypothetical question asked of the expert. Ex parte McAllister, 541 So.2d 1104, 1107 (Ala.1989).”

W.S. v. T.W., 585 So.2d at 27-28.

In this case, the evidence would support a conclusion that Dr. Graettinger had not examined or inspected the condition of the parking lot, even as it existed in the spring of 2002 when he observed it once from a vehicle and another time when he walked around the parking lot. Dr. Graettinger admitted that he did not investigate the parking lot or perform any tests on the parking lot. Rather, Dr. Graettinger based his testimony on photographs of the parking lot that were taken by someone other than himself. Dr. Graettinger testified that he had never personally observed the parking lot when it was wet, much less in weather similar to the weather that existed at the time of Johnson’s January 3, 1999, fall. Those facts support a conclusion that Dr. Graettinger’s testimony was not based upon “facts of which the witness has firsthand knowledge.” W.S. v. T.W., 585 So.2d at 28. Also, Johnson did not use hypothetical questions in her examination of Dr. Graettinger. See id.

Also, it seems the trial court based its exclusion of some of Dr. Graet-tinger’s testimony on a conclusion that it was not relevant. The trial court asked Johnson to explain the relevance of testimony based on weather data from late spring and late summer 2002, and Johnson responded only that the testimony based on that data related to conditions of the parking lot after a rain. However, the temperatures reflected in that weather data were widely different from those present at the time of Johnson’s January 3, 1999, fall in the parking lot. Johnson did not attempt to question Dr. Graettinger regarding his opinions about the condition of the parking lot, assuming that weather conditions existed that were similar to those present at the time of Johnson’s fall. Given the discretion afforded the trial court in ruling on evidentiary issues, we cannot say that Johnson has demonstrated that the trial court erred in excluding Dr. Graettinger’s opinion testimony about the condition of the parking lot.

Johnson also challenges the trial court’s refusal to admit into evidence certain photographs, taken by Dr. Graet-tinger’s wife during the “experiment,” as well as the weather data for April 2002 and September 2002. The decision to admit photographs into evidence is within the trial court’s discretion. Burlington N. R.R. v. Whitt, 575 So.2d 1011 (Ala.1990). “A photograph is relevant and admissible in order to explain and apply the evidence when it will enable the court and the jury to better understand the conditions or matters in issue.” Id. at 1020.

The photographs at issue were offered into evidence in support of Dr. Graettinger’s opinion testimony. However, we have already concluded that the trial court did not abuse its discretion in excluding Dr. Graettinger’s opinion testimony. Johnson has failed to demonstrate that the photographs were “relevant and admissible” to “explain and apply” the evidence she expected Dr. Graettinger to supply but that the trial court excluded as inadmissible. See Burlington N. R.R. v. Whitt, 575 So.2d at 1020. Similarly, the weather data pertained to conditions in April 2002 and September 2002; Johnson has not alleged that that evidence had any relevance outside serving as a basis for Dr. Graettinger’s excluded testimony. Therefore, we cannot say that Johnson has demonstrated error as to this issue.

As previously stated, we have determined that Johnson failed to demonstrate that she was an invitee at the time of her January 3, 1999, fall, and, therefore, we will assume for the purposes of this opinion that Johnson was a licensee at that time. “The duty owed by a landowner to a licensee is to abstain from willfully or wantonly injuring the licensee and to avoid negligently injuring the licensee after the landowner discovers a danger to the licensee.” Hambright v. First Baptist Church-Eastwood, 638 So.2d 865, 868 (Ala.1994).

“ ‘The duty owed by landowners toward licensees is not an active one to safely maintain the premises; rather, the law imposes upon the landowner the duty of not setting traps or pitfalls and not wilfully or wantonly injuring the licensee, a “trap” being a danger that a person who does not know the premises could not avoid by reasonable care and skill.’
“Graveman [v. Wind Drift Owners’ Ass’n, Inc.], 607 So.2d [199,] 203 [ (Ala. 1992) ] (emphasis added [in Christian ]). ... Tn order to constitute wantonness, a failure to act must be accompanied by knowledge that someone is probably imperilled, and the failure to act must be in reckless disregard of the consequences.’ [Whaley v. Lawing,] 352 So.2d [1090,] 1092 [ (Ala.1977) ].”

Christian v. Kenneth Chandler Constr. Co., 658 So.2d 408, 410 (Ala.1995).

In her brief on appeal, Johnson argues only that she presented sufficient evidence of wantonness on the part of the defendants to warrant submitting that issue to the jury. Johnson admits there is no direct evidence that the defendants had any knowledge of the allegedly defective condition of the parking lot, but she contends that wantonness can be inferred from a number of facts in this case. Our supreme court has stated that “[t]he defendants’ knowledge of a dangerous condition, prior to the accident, is the most crucial element of wantonness.” Christian v. Kenneth Chandler Constr. Co., 658 So.2d at 411.

In setting forth the facts that she says indicate that the defendants’ conduct was wanton, Johnson first cites to some evidence tending to indicate that the condition of the parking lot had not changed in the three years between her fall and the trial of this matter. She also relies on Linson’s testimony that ice tended to form in the parking lot each year when the temperatures fell below freezing and that, at some point either before or after Johnson’s January 3, 1999, fall, there were signs warning of the dangers of ice at the apartments. Johnson also cites Linson’s written statement, which Linson later contradicted in her sworn trial testimony, in which Linson was quoted as saying that she had contacted the management of the apartments to complain about ice forming in the parking lot. Johnson also refers to Dr. Graettinger’s testimony that a water table existed under the parking lot; however, Dr. Graettinger did not testify regarding several of the other “facts” Johnson refers to in her brief on appeal that pertained to Dr. Graettinger’s supposed opinions regarding the effects of that water table on the condition of the parking lot.

Johnson does not contend that the defendants knew of the water table or its alleged effect on the parking lot or that that they knew that water “exuded” from the cracks in the parking lot for some time after a rain. She also does not contend that the defendants knew that, as a result of that alleged condition in the parking lot, ice would form on the night of January 3, 1999. In fact, at the time of her fall, Johnson, who had lived at the apartments for almost two years, insisted that she herself did not know and could not have known of the possibility of the formation of ice in the parking lot.

We simply cannot say that the admissible evidence in the record on appeal tends to indicate, or to raise an inference, that the defendants had knowledge of a dangerous condition in the parking lot or that they acted with “reckless disregard” of Johnson’s safety. Christian v. Kenneth Chandler Constr. Co., 658 So.2d at 410. We must conclude that Johnson failed to present substantial evidence that would withstand the defendants’ motion for a judgment as a matter of law. See Bell v. T.R. Miller Mill Co., supra.

In her brief on appeal, Johnson also contends that the defendants were incorrect in their assertion that the ice was an open and obvious condition and that, to the extent the trial court might have relied on that theory in reaching its decision to enter a judgment as a matter of law in favor of the defendants, the trial court erred. However, given this court’s disposition of the previous issues, we need not address that argument.

The appellees’ motion to strike portions of the appellant’s brief on appeal is denied.

AFFIRMED.

CRAWLEY and PITTMAN, JJ„ concur.

YATES, P.J., and MURDOCK, J., concur in the result.

      . The record does not clearly indicate the nature of the individual defendants’ relationships to or their interests in the apartments.

      . The defendants contend that Johnson failed to make the required offer of proof pertaining to her expectations of the content of the excluded portions of Dr. Graettinger's testimony. See Rule 103(a)(2), Ala. R. Evid. However, our review of the record indicates that Johnson's arguments when the trial court excluded her offered evidence sufficiently apprised the trial court of the expected content of Dr. Graettinger’s testimony; therefore, a formal offer of proof was unnecessary.


author: PITTMAN, Judge.

text:
    CAROLINA CASUALTY INSURANCE COMPANY v. MISS DEANNA’S CHILD CAREMED NET, L.L.C.
    2020001.
    Court of Civil Appeals of Alabama.
    July 18, 2003.

      James R. McKoon of McKoon, Thomas & Gray, Phenix City, for appellant.
    James T. Gullage of Gullage & Tickal, LLP, Opelika, for appellee.
   PITTMAN, Judge.

Carolina Casualty Insurance Company (“CCIC”), an excess and surplus-lines insurance carrier, appeals from a judgment entered by the Russell Circuit Court declaring that Miss Deanna’s Child Care-Med Net, L.L.C. (“Med Net”), is entitled to a defense and indemnity from CCIC with respect to a civil action brought against Med Net by Corrinne Wright arising from injuries Wright claimed to have received as a result of the alleged negligent or wanton operation of a motor vehicle by one of Med Net’s employees on February 21, 2001, a date that CCIC contends fell during a lapse in Med Net’s automobile liability insurance coverage. We reverse and remand.

The record reveals that in 2000 CCIC issued an automobile liability insurance policy to Med Net covering three of Med Net’s vans; that policy, numbered CTP 335724, was effective from February 17, 2000, to 12:01 a.m. on February 17, 2001, and will be referred to in this opinion as “the 2000 policy” based upon the year of its original issuance. Med Net obtained the 2000 policy for a total premium of $5,826 through Dianne Abernathy, an employee of the J. Smith Lanier Agency, an independent agency that offers its customers insurance coverage from a number of different insurance companies. Abernathy secured coverage from CCIC through North Alabama Insurance, Inc. (“NAI”), an intermediary insurance broker that had the authority to “bind” CCIC; Abernathy had no dealings directly with CCIC.

In late January 2001, as the expiration date of the 2000 policy was approaching, Abernathy contacted Robert Holley, Med Net’s principal operator, and asked whether Holley wanted to “renew” coverage for another year. Acting on Holley’s instructions, Abernathy requested NAI to provide a premium quotation for a “renewal” of the 2000 policy so as to cover a total of seven vans. NAI responded to Abernathy on January 31, indicating that although the 2000 policy was due to expire on February 17, 2001, CCIC would provide coverage to Med Net for an additional year on the same general terms as the expiring 2000 policy based upon a total premium of $15,078. That quotation was labeled “Renewal Quotation.”

Abernathy sent a letter to Holley on February 8, 2001, indicating that she had one premium quotation for “renewal” for $15,078 but stating that she was “still [a]waiting a quote from another carrier” and that she hoped “to have that by Monday 2/12/01.” Abernathy and Holley subsequently discussed whether certain changes in coverage, such as the permitted radius from Med Net’s headquarters that its vans could travel, could reduce Med Net’s premium; a handwritten notation written by Abernathy on her copy of the February 8 letter to Holley indicates that Holley visited her office on February 14, three days before the 2000 policy was to expire, at which time Holley expressed a desire for “options for payments” and stated that he would return by Friday, February 16. However, there is no evidence that Holley authorized Abernathy to obtain insurance coverage for Med Net on the terms offered in NAI’s January 31 “Renewal Quotation.”

On Wednesday, February 14, Holley was informed that he would have to immediately undergo an exploratory medical procedure with respect to his heart. On Thursday, February 15, he entered a hospital, underwent the procedure, and left the hospital; however, based upon the results of that procedure, Holley was readmitted to the hospital the next day, Friday, February 16, and underwent a cardiac-bypass procedure on Monday, February 19. As a result of Holley’s medical problems, Holley did not return to Abernathy’s office, and Holley and Abernathy did not discuss Med Net’s insurance coverage between February 15 and February 20.

On the morning of Wednesday, February 21, 2001, Abernathy’s husband underwent an outpatient medical procedure at the same hospital where Holley was recuperating, and Abernathy accompanied her husband to the hospital. After that procedure was performed, Abernathy and her husband visited Holley’s hospital room. During that visit, Holley asked Abernathy about Med Net’s insurance coverage; Abernathy responded that Med Net did not have coverage because she had not heard from Holley and because she lacked authority to “bind” insurance coverage on Med Net’s behalf. According to Abernathy, when Holley requested that Abernathy “get it fixed,” i.e., immediately obtain insurance coverage, Abernathy informed Holley that she had accompanied her husband to the hospital and that she was not planning to return to the J. Smith Lanier Agency’s office that day but that she could obtain coverage the next day. In contrast, Holley stated that he told Abernathy during that visit to “bind my coverage over” and that Abernathy responded that all Holley needed to do was to tell her to “handle it” and “it would be done”; Holley assumed that his statements to Abernathy amounted to a valid binder of insurance coverage.

According to Wright’s complaint against Med Net, Wright was injured on February 21, 2001, during Med Net’s transportation of her to a kidney-dialysis appointment. Wright claims that she was injured as a result of Med Net’s negligence or wantonness in securing her and her wheelchair into Med Net’s automobile and in operating the automobile so as to cause her to fall over in transit.

On February 22, 2001, Abernathy completed a computerized “Quick On-Line Auto Quote Form” on behalf of Med Net and transmitted that form to NAI; she also contacted an employee of NAI by Email, stating in her message that Holley had been hospitalized unexpectedly and that she needed to obtain coverage immediately because Med Net could not operate without insurance coverage. NAI sent a document to the J. Smith Lanier Agency indicating that CCIC would agree to provide coverage for a total premium of $11,627, that an original completed and signed application form should be sent “within 10 days of binding,” and that the coverage and terms being offered “may not be the same or as broad as requested in your application”; that quotation form, unlike the January 31 form, contained no references to the 2000 policy and was labeled “Quotation” rather than “Renewal Quotation.” Abernathy wrote, on the face of that quotation form, a request that NAI immediately bind coverage and sent the quotation form containing the handwritten request back to NAI; on February 23, a binder was issued by NAI on behalf of CCIC indicating an effective date of February 22, 2001, for Policy Number CTP 335773, or “the 2001 policy.” Because the acts made the basis of Wright’s complaint occurred between the expiration of the 2000 policy and the inception of the 2001 policy, CCIC denied Med Net’s request that CCIC defend and indemnify Med Net with respect to the claims alleged in Wright’s complaint, contending that CCIC has no duty to do so.

CCIC’s denial of coverage prompted Med Net to bring an action against Wright and CCIC; in that action, Med Net sought a declaration that CCIC was required to defend and indemnify Med Net with respect to Wright’s claims against Med Net. CCIC denied liability and filed a motion for a summary judgment, relying upon certain deposition testimony; Med Net filed a response in opposition to CCIC’s motion. The trial court denied the summary-judgment motion, after which the trial court held a hearing at which the parties presented evidence in the form of deposition transcripts and oral testimony. The trial court ultimately rendered a judgment in favor of Med Net, requiring CCIC to provide a defense in Wright’s action against Med Net and to indemnify Med Net as to Wright’s claims. CCIC appealed from that judgment to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

The principal legal issue presented in this appeal is whether, under the evidence presented, the trial court could properly conclude that CCIC was bound to provide coverage to Med Net with respect to the occurrences described in Wright’s complaint. Because the trial court received testimony in both oral and written form before entering its final judgment, we conclude that the ore tenus standard of review applies; “[w]here evidence on an issue is presented both orally and by deposition, the ore tenus rule affords the trial court’s finding a presumption of correctness.” Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). “Under that standard, a trial court’s findings of fact based on oral testimony and a judgment based on those findings are given a presumption of correctness.” Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala.1994). However, “that standard’s presumption of correctness has no application to a trial court’s conclusions on questions of law.” Id.

We agree with CCIC that there is no evidentiary basis for the trial court to have concluded that the 2000 policy remained in effect on February 21, 2001, the date of Wright’s alleged injuries. The 2000 policy, by its terms, expired on February 17, 2001, at 12:01 a.m., the end of the policy period shown on the policy’s declarations page. Moreover, coverage under the 2001 policy, by its terms and the terms of the binder issued by NAI on behalf of CCIC, became effective on February 22, 2001, one day after the incident made the basis of Wright’s complaint. As a result, no written contract of insurance was in effect between CCIC and Med Net on February 21, 2001.

In defense of the trial court’s judgment, Med Net contends that the doctrine of waiver, as recognized in cases such as Alabama Farm Bureau Mutual Casualty Insurance Co. v. Hicks, 41 Ala.App. 143, 133 So.2d 217 (1960), aff'd, 272 Ala. 574, 133 So.2d 221 (1961), compels a conclusion that CCIC is required to provide coverage to Med Net. In affirming the judgment of the Court of Appeals that an insurer’s acceptance of a past-due renewal premium after a loss, with knowledge of that loss, waived any forfeiture for nonpayment of a policy’s renewal premium, the Alabama Supreme Court opined that the insurer “had the right to condition renewal or reinstatement of the policy on the exclusion of coverage between [the] date' of default and [the] date of reinstatement or renewal.” 272 Ala. at 576, 133 So.2d at 223. Cases following Hicks have held that in instances when an insurer accepts a premium payment from an insured with knowledge that an otherwise-covered occurrence has happened during a period of lapse, the insurer may (1) return the premium for the lapsed period, (2) apply the premium from the date it was received forward, or (3) retain the premium and cover the loss. See, e.g., Allen v. Dairyland Ins. Co., 391 So.2d 109, 110 (Ala. 1980).

In this case, as in Allen, an insurer has effectively chosen the second option— CCIC applied Med Net’s premium payments after February 22, 2001, so as to provide coverage from that date forward. Assuming, without deciding, that CCIC had knowledge of Wright’s claim when it issued the 2001 policy with an effective date of February 22, 2001, there is no evidence in the record that CCIC or NAI, in issuing the February 22 premium quotation, the February 23 binder, and the 2001 policy, acted in any manner inconsistent with the position that the 2001 policy was a new policy with an effective date of February 22. Specifically, while NAI’s January 31 “renewal quotation” stated that coverage would be bound “upon expiration of [the 2000] policy,” that the terms and conditions of the coverage offered were “the same as [the] expiring [2000 policy] unless otherwise noted,” and referred to the expiring 2000 policy by number, the February 22 “quotation” contained no reference to the 2000 policy. We therefore cannot agree with Med Net that the trial court’s judgment is supported by the doctrine of waiver set forth in Hicks and its progeny.

We now turn to whether the trial court’s judgment is due to be affirmed, as Med Net argues, because of Abernathy’s relationship to CCIC. Stated another way, we now address whether the trial court could have correctly concluded that CCIC was bound to provide a defense and indemnity to Med Net with respect to the events alleged in Wright’s complaint on the basis that Abernathy had actual or apparent authority to immediately bind coverage on behalf of CCIC at Holley’s request.

In Ballard v. Lee, 671 So.2d 1368 (Ala. 1995), the Alabama Supreme Court discussed at length the distinction recognized under our law between insurance “brokers” and insurance “agents”:

“The functions and characteristics of insurance ‘agents’ and ‘brokers,’ respectively, are set forth in Ala.Code 1975, § 27-7-l(a). That section defines those two terms:
“ ‘(1) Agent. A natural person, partnership or corporation appointed by an insurer to solicit and negotiate insurance contracts on its behalf, and if authorized to do so by the insurer, to effectuate, issue and countersign such contracts. An agent may not delegate the countersignature authority by appointing another person as his attorney-in-fact, except, that this provision shall not apply to agents for direct-writing insurers.
“ ‘(2) Broker. A natural person, partnership or corporation who, on behalf of the insured, for compensation as an independent contractor, for commission or fee and not being an agent of the insurer, solicits, negotiates or procures insurance or the renewal or continuance thereof, or in any manner aids therein, for insureds or prospective insureds other than himself or itself. Brokers cannot bind the insurer and all business produced must be countersigned by a resident agent of the insurer accepting the risk.’
“(Emphasis added [in Ballard].) See, also, J. Appleman, Insurance Law and Practice § 8726, at 338 (1981) (‘A broker is ... one who acts as a middleman between the insured and insurer and ... solicits insurance from the public under no employment from any special company’).
“Ordinarily, ‘an insurance broker represents the insured and is not considered an agent of the insurer.’ Lampkin v. Kelly, 771 S.W.2d 953, 954 (Mo.App. 1989). A broker usually acts solely as the insured’s agent and ‘has a license to “hunt” for a suitable policy without having any prior representation contract with any particular insurer.’ M. Pock, Insurance, 45 Mercer L.Rev. 253, 255 n. 15 (1993); see,” also, J. Appleman, Insurance Law and Practice § 8727 (1981). Only ‘special conditions or circumstances in a particular case [will] warrant the inference that a broker is the agent of the insurer.’ Lampkin, 771 S.W.2d at 954. These rules are essentially codified in Ala.Code 1975, § 27-7-l(a)(2), which expresses the intent of our legislature with regard to concurrent agency, namely, that in the usual case, a broker will not be regarded as ‘an agent of the insurer.’ Id.
“We are aware that a broker sometimes performs certain functions that benefit the insurer, such as delivering the insurer’s policy to the insured, collecting premiums from the insured, and forwarding the proceeds of the premium to the insurer and, thus, that the broker may, for some purposes, represent the insurer. Hunt v. State, 737 S.W.2d 4 (Tex.App.1987); see, also, American Fire Ins. Co. v. King Lumber & Mfg. Co., 74 Fla. 130, 77 So. 168 (1917), affirmed, 250 U.S. 2, 39 S.Ct. 431, 63 L.Ed. 810 (1919). In § 27-7-1(a)(2), however, these activities are expressly, or by clear implication, ascribed to brokers. Thus, the broad application of this rule in Alabama would render anyone who ‘solicits, negotiates or procures insurance or the renewal or continuance thereof, or in any manner aids therein, for insureds or prospective insureds,’ § 27-7-1(a)(2) (emphasis added [in Ballard ]) — by which activities he qualifies as a broker — ipso facto an agent of the insurer. Such a result would contravene § 27-7-l(a)(2) and would be contrary to the policy of this state as declared by the legislature. Thus, where, in a damages action alleging fraud, a defendant insurer files a properly supported summary judgment motion, suggesting that the person who allegedly defrauded the plaintiff insured was a broker — which the plaintiff contends was a dual agent— the plaintiffs rebuttal evidence must relate to activities of the broker other than those mentioned in § 27-7-1(a)(2).”

Ballard, 671 So.2d at 1371-73.

In this case, Med Net presented no evidence tending to show that CCIC appointed Abernathy or the J. Smith Lanier Agency to solicit, negotiate, effectuate, issue, or countersign insurance contracts on behalf of CCIC; Abernathy testified at her deposition that the J. Smith Lanier Agency had no direct contractual relationship with CCIC, that she had no direct dealings with CCIC, and that she had “no binding authority” with respect to CCIC. According to Abernathy’s testimony, she could have placed Med Net’s coverage with any insurer with which her agency had a “relationship” and that that placement would be based, in part, upon customer input; moreover, as we have noted, Abernathy sought premium quotations from competing insurers on behalf of Med Net with respect to coverage that would follow the expiration of the 2000 policy. Finally, Abernathy testified that the J. Smith Lanier Agency had retained fees of 10% of the policy premiums to compensate it for its services in obtaining insurance coverage for Med Net. A review of that evidence in light of the legal principles enunciated in Ballard compels a conclusion that Abernathy acted as a broker on behalf of Med Net under § 27-7-l(a)(2) as discussed in Ballard, not as an employee of CCIC, and that CCIC is therefore not liable to Med Net on the basis of respondeat superior.

As noted in Ballard, Ala.Code 1975, § 27-7-l(a)(2), provided that brokers (such as Abernathy) “cannot bind the insurer” and that all insurance policies or binders they procure “must be countersigned by a resident agent of the insurer accepting the risk.” Nevertheless, Alabama common law provides that “[ujnder certain circumstances ... an independent broker may act as an agent for both the insured and the insurer.” Gulf Gate Mgmt. Carp. v. St. Paul Surplus Lines Ins. Co., 646 So.2d 654, 659 (Ala.1994). Thus, we must consider whether statements that Abernathy allegedly made to Holley in his hospital room on February 21, 2001, just before the accident made the basis of Wright’s complaint, bound CCIC so as to create a legal duty in CCIC to provide coverage to Med Net as to the incident made the basis of Wright’s complaint.

In Gulf Gate, our Supreme Court recognized the possibility that an insurance broker who represents a prospective insured can also be deemed to represent an insurer in certain limited instances. However, Gulf Gate also stressed that “[a]n insurer’s liability for the fraud of an independent agent or broker is predicated solely upon actual or apparent authority conferred upon the agent/broker by the insurer to make representations on the insurer’s behalf’; the Supreme Court added that “an independent agent or broker can never impose liability upon the agent or broker’s principal for representations that are not authorized by the principal” and that “[a]n agent’s apparent authority must be based on the conduct of the principal and not on the conduct of the agent.” 646 So.2d at 659.

Did Med Net adduce “substantial evidence” (see § 12-21-12, Ala.Code 1975, and West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)) that Abernathy had actual or apparent authority to enter into an insurance contract on behalf of CCIC with Med Net? We must answer that question in the negative. Abernathy expressly disclaimed in her deposition having had the unilateral authority to bind CCIC to any particular contract of insurance, and Med Net presented no evidence that would negate her testimony. Moreover, there is no evidence of conduct on the part of CCIC from which the trial court could properly have inferred that CCIC (or NAI) misled Med Net as to the extent of Abernathy’s authority to act on behalf of NAI so as to permit a finding that Abernathy had apparent authority to bind CCIC; indeed, Holley testified at his deposition that he had never spoken to anyone from CCIC or NAI. While Med Net relies upon Holley’s testimony that Abernathy stated that “all you have to do is tell me and I will take care of it” as constituting proof of her authority to act on behalf of CCIC, there is no evidence that CCIC ever indicated to Med Net that Abernathy could effectively make such a sweeping declaration on its behalf, much less that CCIC would agree to provide coverage from the very moment of its utterance. Absent evidence of an agency relationship between Abernathy and CCIC, CCIC cannot be bound by her representations. See Gulf Gate, 646 So.2d at 660; accord, Ballard, 671 So.2d at 1372-73.

In the absence of evidence that CCIC issued a binder or a policy of insurance that afforded coverage for the occurrences on February 21, 2001, alleged in Wright’s complaint, and without evidence that Abernathy acted in any capacity other than as Med Net’s broker, the trial court’s judgment requiring CCIC to provide a defense and indemnity to Med Net with respect to Wright’s claims against Med Net was erroneous. The trial court’s judgment is reversed, and the cause is remanded for that court to enter a judgment in favor of CCIC.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., and CRAWLEY, THOMPSON, and MURDOCK, JJ„ concur.

      . That competing insurance carrier ultimately offered Med Net similar coverage, but the carrier quoted a substantially larger premium.

      . Under the rule espoused in Superskate, Inc. v. Nolen, 641 So.2d 231 (Ala.1994), and its progeny (e.g., Mitchell v. Folmar & Associates, L.L.P., 854 So.2d 1115 (Ala.2003)), we review the correctness of the trial court's final judgment, not its denial of CCIC's summary-judgment motion.

      . State Farm Fire & Casualty Co. v. Owen, 729 So.2d 834 (Ala. 1998), overruled Ballard solely as to the issue whether, in a fraud action, the question of a party’s legal duty to disclose a fact is a question of fact or of law.

      . Although § 27-7-1, Ala.Code 1975, was amended effective January 1, 2002, so as to delete the statutory definitions of "agent” and "broker” discussed in Ballard, the incidents on which this action is based occurred before the effective date of that amendment.


author: CRAWLEY, Judge.

text:
    S.E. v. J.D.G. and G.G.
    2020241.
    Court of Civil Appeals of Alabama.
    July 18, 2003.
    Jeffrey P. Montgomery, Gadsden, for appellant.
    Jack Floyd, Gadsden, for appellees.
   CRAWLEY, Judge.

S.E. (“the mother”) appeals from the juvenile court’s termination of her parental rights to her child, S.M.G. (“the child”). We affirm.

The mother’s mother and stepfather, J.D.G. and G.G. (“the maternal grandparents”), petitioned the juvenile court to terminate the mother’s parental rights. The father of the child is unknown, and, at the time they filed the petition, the mother was incarcerated. A hearing was set on the maternal grandparents’ petition, and a guardian ad litem was appointed for the child. The mother filed an affidavit of substantial hardship and counsel was appointed to represent her; the unknown father was served with notice of the proceedings by publication. J.D.G., the.maternal grandmother, was the only person to testify at the termination hearing; the mother was not present.

After conducting its hearing on the matter, the juvenile court entered an order that stated, in pertinent part:

“The Court finds by clear and convincing evidence, competent, material and relevant in nature, the following facts. The Court takes judicial knowledge of the contents of a prior termination of parental rights concerning [L.A.B.], case # JU-00-80.02. In that case there is documentation to the effect [that] the ... mother had a substantial addiction to alcohol, marijuana, and crack cocaine. In that case, on July 18, 2001, the ... mother consented in open court to the termination of her parental rights with respect to [L.A.B.] Subsequently, on November 27, 2001, the ... mother was sentenced to the penitentiary by the Circuit Court of Etowah County in case # CC-00-781.01 and .02. Subsequently, on January 4, 2002, the ... mother was physically transferred to the Julia Tut-wiler Prison for Women in Wetumpka, AL. Subsequently, on March 23, 2002, she delivered the ... child in a Montgomery hospital. The ... mother had initially consented to the pre-birth adoption of the ... child by the ... maternal grandparents, but such consent was subsequently withdrawn after the birth of the child. [The maternal grandparents] took the ... child from the Montgomery hospital and returned to Etowah County. The ... child has not been in the physical custody of the ... mother since that time. The ... mother has not seen the ... child, has not paid any child support to the maternal grandparents, and has not made any effort to contact the ... child. The conduct or condition of the mother and of the unknown father is such as to render them unable to properly care for the ... child, and such conduct or conditions are unlikely to change in the foreseeable future. The ... child is dependent, and there are not suitable relative resources other than the ... maternal grandparents, and there is no viable alternative other than the termination of the parental rights of the ... mother and the unknown father. The Court finds that the provisions of Code of Alabama [1975] Section 26-18-7(a)(4) and (8) are directly applicable to the current fact situation.”

The mother filed a motion to set aside the judgment terminating her parental rights; the juvenile court denied the motion. The mother then filed a notice of appeal to this court.

On appeal, and represented by different counsel than she was represented by at the termination proceeding, the mother contends (1) that her counsel during the termination proceedings was ineffective; (2) that the juvenile court’s judgment was not supported by clear and convincing evidence; and (3) that the juvenile court erred by denying her motion to supplement or correct the record.

The mother first argues that her counsel during the termination proceeding rendered ineffective assistance. Our review of the record shows that the mother failed to raise an ineffective-assistance-of-counsel claim to the juvenile court. Accordingly, this court cannot consider this claim because it has been raised for the first time on appeal. See J.K. v. Lee County Dep’t of Human Res., 668 So.2d 813, 817 (Ala.Civ.App.1995)(“Further, the issue of whether J.K. was denied effective assistance of counsel was never presented to the trial court. ‘The trial court should not be placed in error on matters which the record reveals it neither ruled upon nor was presented the opportunity to rule upon.’ Wilson v. State Department of Human Resources, 527 So.2d 1322, 1324 (Ala. Civ.App.1988).”). Further, we note that our supreme court has determined that a motion filed pursuant to Rule 60(b), Ala. R. Civ. P., under certain circumstances, can be the appropriate means through which to present an ineffective-assistance-of-counsel claim to a trial court. See Ex parte E.D., 777 So.2d 113 (Ala.2000).

The mother next argues that the juvenile court’s judgment is not supported by clear and convincing evidence. A trial court’s decision in a proceeding to terminate parental rights, when based on ore tenus evidence, as here, is presumed correct and its decision will be set aside only if the record reveals that the decision is plainly and palpably wrong. M.J.G.L. v. State Dep’t of Human Res., 587 So.2d 1004 (Ala.Civ.App.1991). Our review of the record shows that the juvenile court’s findings were clearly supported by the testimony of the maternal grandmother — the only witness to testify at the hearing — and by its own records, of which it took judicial notice.

The mother’s final argument is that the juvenile court erred by not having the transcript of the termination hearing corrected because it contained 12 instances in which the reporter noted that the testimony was inaudible. The juvenile court denied the motion stating, after listening to the audiotape of the hearing, that “the ... places which are inaudible are each only a few seconds in duration on the audiotape, and do not materially affect the context of the transcript.” The mother has failed to cite any authority to this court that necessitates a reversal of the judgment in this case based on the juvenile court’s denial of this motion, and we will not address this argument further. See Rule 39, Ala. R.App. P., and McLemore v. Fleming, 604 So.2d 353 (Ala.1992).

Accordingly, the juvenile court’s judgment is due to be affirmed.

AFFIRMED.

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