author: PITTMAN, Judge.

text:
    Robin RUSSELL v. Darol W. RUSSELL.
    2001106.
    Court of Civil Appeals of Alabama.
    Sept. 6, 2002.

      Joseph D. Ficquette and Charles R. Gil-lenwaters of Gillenwaters & Lowe, Alexander City, for appellant.
    Robert Rumsey of Rumsey and Wilkins, Sylacauga, for appellee.
   PITTMAN, Judge.

Robin Russell (“the wife”) appeals a final judgment of divorce. The wife and Darol W. Russell (“the husband”) were married on August 29, 1975. Two children were born during the 25-year marriage; one was still a minor at the time of this proceeding. Before their separation, the wife was employed by the State of Alabama and earned $26,251.30 during the year 2000. At the same time, the husband was employed by the City of Sylacauga and earned $63,917.61 per year. In 1977, the couple acquired approximately 65 acres of land from the wife’s family. This acreage, located at Route 3, Box 72, Good-water, included an unfinished house, which the couple completed and occupied as the marital residence. Less than one year before the wife filed for divorce, the husband deeded 50 acres (without the house) to the wife.

On February 15, 2001, the wife filed for divorce, alleging incompatibility. The wife requested custody of the minor child, alimony, child support, postminority educational support, and an equitable division of the marital assets and debts. The husband filed an answer and counterclaim on June 14, 2001. After receiving evidence during an ore tenus hearing on June 16, 2001, the trial court entered a final judgment of divorce on July 10, 2001.

The trial court granted the wife temporary use of the marital home and real property until the minor daughter completes college or for two years, whichever occurs first. The trial court ordered the husband and the wife to each pay one-half of the monthly mortgage payment on this property during the wife’s temporary use of the property. At the conclusion of two years or when the minor daughter finishes her schooling, the marital property is to be sold and the proceeds divided equally between the husband and the wife. The trial court awarded certain personal items and one vehicle to each party. The trial court awarded the husband his retirement with the State of Alabama and awarded the wife her retirement with the State of Alabama. The trial court ordered the husband to pay $580 per month child support until the minor daughter turns 19; the judgment also stipulated that the husband and the wife each pay one-half of the college expenses of the minor daughter for a maximum of four years. The trial court also ordered the wife to make all payments on the daughter’s automobile and to pay one-half of all the daughter’s medical expenses not covered by insurance. Although no alimony was awarded in the judgment, the trial court reserved the right to award periodic alimony in the future. The wife filed a timely notice of appeal on July 27, 2001.

The wife appeals. She alleges three grounds of error: (1) that the trial court erred by failing to include the appropriate child support forms required by Rule 82(E), Ala. R. Jud. Admin.; (2) that the trial court erred by including as a marital asset the 50 acres of land; and (3) that the trial court erred by failing to award periodic alimony.

The wife first argues that the trial court committed reversible error by failing to complete a CS-42 as part of its child-support order. This court has consistently held that where the record does not reflect compliance with Rule 32(E) and when child support is made an issue on appeal, this court must remand or reverse and remand for compliance with the rule. Martin v. Martin, 637 So.2d 901, 903 (Ala.Civ.App.1994).

In the current appeal, no forms are found in the court record, although references are made to the guidelines in some of the testimony during the hearing. Neither the husband nor the wife filed CS-A1 forms as required by Rule 32. Rule 32(E), Ala. R. Jud. Admin., requires that

“[a] standardized “Child Support Guidelines” form and a “Child Support Obligation Income Statement/Affidavit” form shall be filed in each action to establish or modify child support obligations and [those forms] shall be of record and shall be deemed to be incorporated by reference in the court’s child support order.’ ”

Nelson v. Landis, 709 So.2d 1299, 1300 (Ala.Civ.App.1998). We conclude that reversible error occurred when the trial court failed to file a CS412 form or to incorporate one into its child support order. See Fomby v. Fomby, 840 So.2d 919 (Ala.Civ.App.2002); Fowler v. Fowler, 773 So.2d 491 (Ala.Civ.App.2000).

The trial court ordered the husband to pay $580 in monthly child support. A thorough review of the record does not reveal how the trial court reached the husband’s child-support obligation. “This court has unsuccessfully attempted, based on the evidence in the record, to determine the manner in which the trial court determined the father’s child support obligation.” Nelson, 709 So.2d at 1300-01. While we certainly agree with the principle that a party who fails to comply with Rule 32 should not be allowed to appeal based upon an error that the complaining party helped to create, here the actual error occurred when the trial court failed to file a CS-42 form; in this case the trial court’s basis for determining the husband’s monthly obligation is unclear. Therefore, this court must reverse the decision of the trial court regarding the issue of child support, and remand the case for the trial court to secure CS-41 forms from the husband and the wife and to complete a CS-42 form in order to comply with Rule 32(E).

The wife next argues that the trial court erred in considering as marital property 50 acres that she claims as separate property. A divorce judgment based on evidence presented ore tenus is afforded a presumption of correctness. See Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001). Such a judgment will be reversed only where it is so unsupported by the evidence as to be plainly and palpably wrong. Id. at 733.

The wife testified that she received the land as part of an inheritance and, in the alternative, also as a gift from her husband. The husband presented testimony and evidence indicating that both the house and the acreage were purchased from the wife’s family in 1977. Included in the record is a copy of a deed dated August 1977 conveying 65 acres of land (and the house) to the husband and the wife as joint tenants. Also included in the record is a copy of a deed signed by the husband and conveying to the wife some 50 acres of this same acreage (excluding the house) in May 2000. The husband stated that he deeded his wife the property in an attempt to maintain the marital relationship.

This court has previously defined separate property as “property over which she exercises exclusive control and from which the [husband] derives no benefit by reason of the marital relationship.” Gartman v. Gartman, 376 So.2d 711, 713 (Ala.Civ.App.1978). The trial judge is granted broad discretion in determining whether property acquired before the marriage or received by gift or inheritance was used “regularly for the common benefit of the parties during [the] marriage.” See § 30-2-51(a), Ala.Code 1975. After reviewing the conflicting testimony and evidence on this issue contained in the record, we cannot say that the trial court abused its discretion by including the 50 acres in the marital estate.

On appeal the division of property and the award of alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue. See O’Neal v. O’Neal, 678 So.2d 161 (Ala.Civ.App.1996). A property division does not have to be equal to be equitable; a determination of what is equitable rests within the sound discretion of the trial court. See Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996).

When dividing marital property and determining the need for alimony, a trial court should consider several factors, including the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage. See Ex parte Elliott, 782 So.2d 308 (Ala.2000).

Having reviewed the property division above, we must now consider the trial court’s failure to award alimony. The record reveals that the husband earns in salary nearly two and one-half times as much as the wife; therefore, his ability to pay alimony is clear. In this case, the wife’s need for periodic alimony is especially apparent where the divorce judgment orders the husband and the wife each to pay one-half of the mortgage payments, the minor daughter’s college expenses, and the daughter’s uninsured medical expenses. The wife is ordered by the court to make all payments on her minor daughter’s car loan as well. Due to the large disparity in the husband’s and the wife’s salary, combined with an equal division of debt payments, the trial court should have ordered a reasonable amount of periodic alimony. Considering the factors set forth in Ex parte Elliott, supra, we conclude that failure to award periodic alimony renders the judgment inequitable. See Nichols v. Nichols, 824 So.2d 797 (Ala.Civ.App.2001); Bushnell v. Bushnell, 713 So.2d 962 (Ala.Civ.App.1997). Accordingly, the judgment is due to be reversed and the cause remanded. The trial court is instructed on remand to review the division of property and to enter an equitable order regarding periodic alimony.

We affirm the trial court’s judgment insofar as it includes as marital property the 50 acres, but we reverse its judgment insofar as it fails to award periodic alimony to the wife. On remand, the trial court must also obtain CS-41 forms from the husband and the wife as well as complete a CS^42 form to comply with Rule 32(E), Ala. R. Jud. Admin.

The wife’s request for an attorney’s fee on appeal is granted in the amount of $750.

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

YATES, P.J., concurs.

CRAWLEY, THOMPSON, and MURDOCK, JJ., concur in the result.

      . The husband testified that his current salary was $61,454 after deducting his qualified plan deposits and before adding any bonus.

      . By order of this court on June 18, 2002, the trial court was reinvested with jurisdiction for 14 days to submit a CS-42 form to comply with Rule 32(E); the trial court submitted no form and stated in its return to this court that it used none of the required forms in its child-support calculations.


source: Caselaw Access Project

license: Public Domain

text:
    Eugene CANNON v. Dorothy CANNON.
    2010476.
    Court of Civil Appeals of Alabama.
    Sept. 6, 2002.

      Maryanne M. Prince, Montgomery, for appellant.
    Jim S. Calton, Jr., of Calton & Calton, Eufaula, for appellee.
   PITTMAN, Judge.

Eugene Cannon (“the husband”) and Dorothy Cannon (“the wife”) were divorced on July 7, 2000. On June 13, 2001, the husband filed a “Motion for Order to Show Cause” to require the wife to execute a quitclaim deed, which he alleged was a condition contained in the settlement agreement that had been incorporated into the divorce judgment. On June 14, 2001, the wife filed a “Motion for Contempt or to Show Cause” to require the husband to pay $30,000 she alleged was due under the terms of the settlement agreement. On July 13, 2001, the wife filed a “Counter Petition for Contempt or to Show Cause” requesting again that the husband be required to pay her $30,000 and that the matter be set for a hearing.

On October 25, 2001, following an ore tenus proceeding, the trial court ordered, in part:

“2. A judgment is entered on behalf of the former wife ... in the amount of $30,000.00 plus interest from June 5th, 2001 upon which execution may lie.
“3. The former wife ... is placed in possession of the marital residence ... and shall remain in possession of said property until said $30,000.00 is paid along with any and all interest owed on said $30,000.00.
“4. The former wife ... is not required to execute any Deeds to the former husband until such time as he purges himself from said contempt and pays the $30,000.00 owed plus interest on said $30,000.00.”

The husband appeals, contending that the trial court erred in modifying the divorce judgment on the wife’s motion, which was filed more than 30 days after the entry of the divorce judgment.

Paragraph 2(a) of the settlement agreement incorporated into the divorce judgment provides:

“With regard to the home located at Route 1 Box 151, Union Springs, Alabama and currently in the [hjusband’s name and financed through GE Capitol Mortgage Company, shall be vested with the [hjusband with the [w]ife executing necessary deeds and documents to convey said property to the [hjusband.... The parties further agree [t]o sell the home residence and to equally divide the equity involved. The asking price for the home is $65,000.00 and the parties agree to take no less than $60,000.00. If after one year has passed and the house has not sold, [h]usband agrees to pay [w]ife $30,000.00 for her equity in said house and land.”

The husband contends the court made an impermissible modification of the parties’ settlement agreement. Specifically, he argues that the trial court could not order the wife to take possession of property of which he is the vested owner until he pays her $30,000. He claims that the most the wife is entitled to is a judgment for $30,000. We agree.

The wife contends the trial court did not modify the terms of the settlement agreement; she claims that it only interpreted the terms of the settlement agreement. The wife testified that she had not executed a deed to her husband for the land specified in the settlement agreement, and that he had failed to pay her the $30,000 as required in the agreement. When asked by the court if the wife was seeking occupancy of the marital home, the wife’s attorney stated: “No, sir, we had not asked for that originally in the petition. We just basically ask for the $30,000 to be paid.”

In this case the question on appeal is a question of law; therefore, the ore tenus rule does not apply; our review is de novo. Ex parte Perkins, 646 So.2d 46 (Ala.1994). Furthermore, “[a] court cannot modify property provisions, except to correct clerical errors, after 30 days from the final judgment.” Hamilton v. Hamilton, 647 So.2d 756, 759 (Ala.Civ.App.1994). Here, the divorce judgment incorporated the parties’ settlement agreement that vested the husband with title to the real property with the wife to receive $30,000 within one year as payment for her equity in the property. Accordingly, the agreement identifies the parties’ unambiguous intent regarding the property. Therefore, the trial court was prohibited from making changes to the express provisions. The trial court’s judgment is reversed to the extent that it modified a property division 30 days after the judgment had been entered.

The wife’s request for an attorney’s fee is denied.

REVERSED AND REMANDED.

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


text:
    J.L. v.A.Y.
    2010105.
    Court of Civil Appeals of Alabama.
    Sept. 6, 2002.

      Kathryn A. King of Harris, Harris & King, Florence; and Cindy S. Schuessler of Schuessler & Sandlin, Florence, for appellant.
    William K. Hewlett, Tuscumbia, for ap-pellee.
   PITTMAN, Judge.

In June 1999, J.L. (“the father”) filed a petition seeking a judgment declaring that he is the natural father of C.Y. (“the child”). He requested that the juvenile court grant him visitation and order him to pay child support. The juvenile court ordered blood tests; those tests confirmed that J.L. was the father of the child. In July 2001, the juvenile court issued a judgment declaring J.L. to be the child’s father, granted visitation, and set child-support payments at $871 a month and assessed an arrearage of $7,034.

The father appeals, contending that the juvenile court erred when it failed to hold a hearing on his Rule 59, Ala. R. Civ. P., postjudgment motion. In his post-judgment motion the father argued that the juvenile court erred both in its calculation of current child support due and in its calculation of the total amount of arrear-age due. The father contends that his Rule 59 motion was set for a hearing, continued twice, and ultimately denied without a hearing. The mother insists that a hearing was held; however, there is no indication in the record that a hearing took place.

Rule 59(g), Ala. R. Civ. P., provides that motions under Rule 59 “shall not be ruled upon until the parties have had opportunity to be heard thereon.” Thus, if a party requests a hearing on a Rule 59 motion, it is error not to hold such a hearing. See Staarup v. Staarup, 537 So.2d 56 (Ala.Civ.App.1988). Nevertheless, our supreme court, in Kitchens v. Maye, 623 So.2d 1082 (Ala.1993), held that although a trial court errs in not granting a hearing on a motion pursuant to Rule 59, Ala. R. Civ. P., such an error does not necessarily constitute reversible error under Rule 45, Ala. R.App. P., which provides, in pertinent part:

“No judgment may be reversed or set aside ... for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Our supreme court in Kitchens, supra, stated that harmless error occurs in the context of a violation of Rule 59(g), “ ‘where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.’ ” Kitchens, 623 So.2d at 1088-89, quoting Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989).

A review of the record in this case reveals that no prejudicial error occurred. The father argued in his Rule 59 motion that the trial court erred in its child-support determination; however, there is no merit to this assertion because the trial court’s calculations were based on the guidelines. Therefore, we conclude that the failure to conduct a hearing on the father’s motion was not prejudicial error.

The father also argues on appeal that the juvenile court erred (1) by failing to comply with Rule 32, Ala. R. Jud. Admin., (2) by imputing income to him while he was a full-time student, (3) by allocating nonwork-related day-care expenses in its calculations, and (4) by failing to give him credit for child-support payments he made during the pendency of this action.

We note that both parties submitted the proper forms and affidavits, and the trial court attached to its judgment three child-support-guideline forms: the first form covered the period from September 11, 1998 (i.e., the date of the child’s birth), through December 31, 1998; the second form covered the period from January 1, 1999, through December 31, 1999; and the third form covered the period from October 2000 through May 2001. This last form is the only form needed to review the trial court’s computation of current child support owed.

However, the form that would cover the period from January 2000 through September 2000 is missing from the record; if this were simply a calculation of current continuing child support instead of retroactive child support, the father’s argument might justify a reversal. Under this court’s holding in Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998), we do not need to review Rule 32(E) forms to uphold a trial court’s calculation of a child-support arrearage. That opinion stated: “In future cases, when awarding retroactive support, the trial court should state its reasons for the award, the factors it considered, and the manner in which it calculated the retroactive support award.” Brown, 719 So.2d at 232. This court has previously held that “ ‘[a] trial court’s determination of the amount of a child support arrearage ... is largely a discretionary matter, and the trial court’s ruling in that regard will not be reversed on appeal absent an abuse of discretion.’ ” Kuhn v. Kuhn, 706 So.2d 1275, 1278 (Ala.Civ.App.1997), quoting Vlahos v. Ware, 690 So.2d 407, 410 (Ala.Civ.App.1997).

Here it appears that the trial court simply used the child-support-guidelines forms to gather income information from the parties to assist it in determining a retroactive child-support amount. If this had been a traditional calculation of ar-rearage, we would simply look at the court’s last child-support order and multiply that by the number of months the father had not paid child support. Here we see that the current continuing child-support order calls for $371 in monthly payments. If we were to multiply that number by the number of months since the child’s birth (32), the total amount of child support owed would be $11,872. Because we conclude that the trial court gave the father credit for some child-support payments made during the pendency of the litigation, we conclude that the trial court did not abuse its discretion in determining that the amount of the arrearage was $7,034.

Next, the father argues that the trial court failed to comply with Rule 32, Ala. R. Jud. Admin., because the child-support-guidelines forms included in the record are not signed. To comply with Rule 32(E), each party to a divorce must file a CS-41 (Child Support Obligation Income Statement/Affidavit form) with the trial court. Often a CS-42 (Child Support Guidelines form) is filed by one or both parties for the trial court’s consideration. Occasionally, under Rule 32(A)(2), the trial court accepts a Child Support Guidelines Notice of Compliance form, which allows the court tó adopt a stipulation from the parties regarding the amount of child support to be paid. Usually, the trial court completes a CS-42 by filling in each party’s income and by computing the monthly child-support amount due.

In Martin v. Martin, 637 So.2d 901 (Ala.Civ.App.1994), this court construed Rule 32 to be mandatory; we stated that stipulated cases “are the only exceptions to the requirement of filing a child support guidelines form and income affidavit forms.” Martin, 637 So.2d at 902. Moreover, this court stated that: “the filing of the forms is mandatory even if the trial court found that application of the guidelines would be unjust or inequitable.” Martin, 637 So.2d at 903.

Martin does not address what constitutes compliance with Rule 32, other than to require the filing of the forms by the parties and the trial court. The first mention of a signature requirement occurs in State ex rel. Dunnavant v. Dunnavant, 668 So.2d 851 (Ala.Civ.App.1995). In that case this court reversed a child-support award because the required forms had not been filed. “On remand, fully completed and signed income affidavits, Form CS-41, must be obtained and filed for both parents reflecting their circumstances as of the time the child support calculations are made. The trial court must also file a fully completed and signed child support calculation form, Form CS-42.” Dunnavant, 668 So.2d at 853 (emphasis added).

We have found several cases decided since Dunnavant that reversed the trial court’s judgment for failure to comply with Rule 32 and ordered the trial court to complete and sign a CS-42 form on remand. However, the rule does not require a signature and the CS-42 form does not contain a signature line; therefore, we hereby expressly overrule any signature requirement implied by Dunnavant and its progeny. The trial court may either adopt a party’s proffered CS-42 form by attaching it to the order of judgment, or the trial court may prepare its own CS-42 form, and incorporate it by reference in the final judgment or order. In either case, a signature of the trial judge is optional, not necessary, on the CS-42 form.

Any statement in prior cases indicating a requirement that the CS-42 form be signed by the trial judge is to be disregarded. The plain language of Rule 32 requires only that a CS-42 be incorporated into every child-support order of a trial court. See Rule 32(E).

Next, the father argues that the trial court erred in imputing income to him while he was a full-time student. The trial court imputed minimum-wage income totaling $893 per month to the father for the period from September 11, 1998 (the date of child’s birth), through March 31, 1999. We note that for the period between January 1999 through December 1999, the trial court imputed minimum-wage income totaling $893 per month to the mother as well.

Rule 32(B)(5), Ala. R. Jud. Admin., provides, in pertinent part:

“If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent’s imputed income. In determining the amount of income to be imputed ... the court should determine the employment potential and probable earning level of that parent, based on that parent’s recent work history, education, and occupational qualifications, and on the prevailing job opportunities and earning levels in the community.”

Also, we note that the trial court’s determination of whether a parent is underemployed so as to warrant an imputation of income is a factual determination subject to the ore tenus rule, and will not be reversed absent a showing that the trial court abused its discretion. Morin v. Morin, 678 So.2d 166 (Ala.Civ.App.1996).

The record reveals that from the time the child was born in September 1998 until March 1999, the father was a student. During this time, the father was employed part-time, earning minimum wage with an average monthly income of $434 in 1998 and $633.39 in 1999. Although pursuing a degree as a full-time student is a laudable venture that may ultimately enhance a parent’s employment opportunities and provide a financial benefit for the parent’s child, it does not permit a parent to ignore the current and continuing financial needs of a child. In light of these facts, we conclude that the trial court did not abuse its discretion in imputing income to the father and to the mother in determining their respective child-support obligations.

The father next contends that the trial court should not have allocated nonwork-related day-care expenses in its child-support calculations. The record reveals that the wife works part-time and that she is a full-time student. Her deposition testimony established that she put the child in day care four or five days a week depending on her work and school schedule. The father fails to direct this court to specific evidence in the record that would delineate what, if any, childcare expenses are not work-related. Although the father cites Ray v. Ray, 782 So.2d 797 (Ala.Civ.App.2000), for the proposition that inclusion of periodic day-care expenses incurred for reasons other than employment is not permitted by the guidelines, he fails to offer specific dates and times to refute the mother’s testimony that she puts the child in day care only when her combined work and school schedule requires it. It is not the function of this court to search a record on appeal to find evidence to support a party’s argument. Rule 28(a)(4), Ala. R.App. P; Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998). Neither the father’s brief nor our review of the record indicates that the trial court abused its discretion by including the cost of day-care services in the child-support calculation.

The father’s final argument on appeal is that the trial court erred because it did not give him credit for child-support payments he had made voluntarily while this action was pending. “The award or denial of a credit against an arrearage is within the sound discretion of the trial court and will not be reversed absent a showing of plain and palpable abuse.” Phillippi v. State ex rel. Burke, 589 So.2d 1303, 1304 (Ala.Civ.App.1991).

Although the father argues that he proved he was entitled to a $3,200 credit for payments made to the mother between July 1999 and May 2001, the trial court could accept or reject those figures based on the other evidence received during the ore tenus proceeding. A review of the record indicates that the trial court gave the father credit for $2,100 in child-support payments when it calculated the arrear-age; we conclude, therefore, that the trial court did not abuse its discretion in applying credits for payments made by the father. Because we have concluded that the trial court did not abuse its discretion regarding any issue raised by the father, the trial court’s judgment is due to be affirmed.

The mother’s request for an attorney’s fee on appeal is granted in the amount of $750.

AFFIRMED.

THOMPSON, J., concurs.

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


author: YATES, Presiding Judge.

text:
    Rhonda KIMBRELL v. PROGAS, INC.
    2010665.
    Court of Civil Appeals of Alabama.
    Sept. 13, 2002.
    Charles H. Rice of Rice, Adams, Underwood & Associates, P.C., Anniston, for appellant.
    Steve P. Brunson and Daniel R. Schuler of Brunson & Associates, P.A., Gadsden, for appellee.
   YATES, Presiding Judge.

Rhonda Kimbrell appeals from a summary judgment entered in favor of Progas, Inc. Kimbrell sued Progas, claiming that Progas was negligent in not having conducted an interior inspection of her home when it installed a propane tank at her residence. Kimbrell’s claims are based upon theories of negligent installation, negligent inspection, negligence per se, and breach of contract. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

In May 1998, Kimbrell entered into an agreement with Progas to establish propane gas service at her residence. The propane tank was installed on May 13, and on May 31, 1998, her residence burned as a result of a fire fueled by a propane gas leak. Gordon Nelson, the manager of Pro-gas, stated in his deposition that Kimbrell had purchased a propane tank from a Pro-gas coworker, Ernie Clay, and that he and Clay had delivered the tank, installed it, and connected it to an existing gas line. Nelson testified that no one was home on the day the tank was installed and that, because no one was home, he and Clay had not turned the gas on at the tank. Nelson also testified that Progas conducted no inspection inside the house and that he did not leave a note warning Kimbrell not to turn the gas on before an inspection was conducted. Nelson also stated that normally an inspection is conducted inside a house before gas is introduced into a system. Nelson further testified that on May 21, 1998, he and Clay had returned to the Kimbrell residence and had repaired a gas leak located at the propane tank outside the home, and that neither he nor Clay went inside to inspect the system. Nelson stated that he and Clay offered to inspect the system, but they failed to tell Kimbrell that they were required to conduct an inspection. Nelson then testified that it was Progas’s standard practice to depend on the property owner to inspect the system inside the home.

Kimbrell testified that on May 18, 1998, Progas installed a gas tank and began gas service to her residence. She further stated:

“When I next came to the house which I believe was either that same day, or the next, the new gas tank and lines were already installed. The gas was not turned on. I turned the gas on by twisting a knob on the tank.... There was no tag of any sort or color on the tank, on the doors going into my house or anywhere that I might have noticed there at the house.”

Kimbrell also stated that no one from Pro-gas notified her that someone needed to come inside her house to inspect the gas system. On May 31, 1998, an explosion occurred at her residence; she and her son escaped unharmed, but the house and its contents were totally destroyed by the fire. An investigation revealed that a gas leak in the laundry room was the cause of the fire.

James Munger, an expert in fuel-gas systems, testified that in 1998 the National Fuel Gas Code, a safety code that applies to the installation of fuel gas piping systems and that has been adopted by the Alabama Liquefied Petroleum Gas Board, contained a provision that required that the system be inspected before gas was introduced into Kimbrell’s house. Specifically, the provisions state:

“4.2.1 Before Turning Gas On. Before gas is introduced into a system of new gas piping, or back into an existing system after being shut off, the entire system shall be inspected to determine that there are no open fittings or ends and that all manual valves at outlets on equipment are closed and all unused valves at outlets are closed and plugged or capped.
“4.2.2 Test for Leakage. Immediately after the gas is turned on, the piping system shall be tested to ascertain that no gas is escaping. If leakage is indicated, the gas supply shall be shut off until the necessary repairs have been made.”

According to Munger, Progas failed to comply with the industry standards before introducing gas into Kimbrell’s home.

Our standard of review of a summary judgment is well settled:

“ ‘The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present “substantial evidence” creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12-21-12(d)[,] Ala.Code 1975. Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“ ‘In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a fight most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).’ ”

Payton v. Monsanto Co., 801 So.2d 829, 832-33 (Ala.2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999)).

Considering the evidence most favorably to Kimbrell, we conclude that Kimbrell presented substantial evidence creating a genuine issue of material fact and that the summary judgment was not proper. Accordingly, we reverse the trial court’s judgment for Progas and remand the case for further proceedings.

REVERSED AND REMANDED.

THOMPSON and PITTMAN, JJ., concur in the result.


author: CRAWLEY, Judge.

text:
    Michael MILLER v. Nancy W. THOMPSON.
    2010153.
    Court of Civil Appeals of Alabama.
    Sept. 13, 2002.

      Michael Gillion and Scott W. Hunter of Michael Gillion, P.C., Mobile, for appellant.
    Richard M. Crump of Crump & Davis, P.C., Mobile, for appellee Nancy W. Thompson.
    Mark R. Ulmer and Andrew S. McDavid of Ulmer, Hillman & Ballard, P.C., Mobile, for State Farm Mutual Insurance Company.
   CRAWLEY, Judge.

On January 27, 2000, Nancy W. Thompson and her husband John Michael Thompson sued Michael Miller, alleging that Miller had negligently or wantonly caused his vehicle to collide with the vehicle occupied by the Thompsons, thereby causing Mrs. Thompson to suffer personal injuries; Mr. Thompson’s claim was a derivative claim alleging a loss of consortium. The Thomp-sons also sued State Farm Mutual Automobile Insurance Company, alleging that Miller was an underinsured motorist and that State Farm had issued them a policy of insurance that included underinsured-motorist (“UIM”) coverage.

On September 7, 2000, Progressive Specialty Insurance Company, Miller’s automobile liability insurer, offered to settle the case for the policy limit of $20,000. State Farm did not consent to the settlement, and it advanced the Thompsons $20,000, in compliance with the procedure established in Lambert v. State Farm Mutual Automobile Insurance Co., 576 So.2d 160 (Ala.1991). On March 8, 2001, State Farm moved to “opt out” of the trial proceedings, pursuant to Lowe v. Nationwide Insurance Co., 521 So.2d 1309 (Ala.1988); the trial court granted the motion. The case proceeded to trial. The jury rendered a verdict for Mrs. Thompson on her personal-injury claim and awarded her $10,000. The jury rendered a verdict for Miller on Mr. Thompson’s derivative claim.

Mrs. Thompson filed a posttrial motion to tax costs—including deposition expenses and expert-witness fees—amounting to $1,159.50 to Miller. Miller filed an objection to Thompson’s motion. Miller had previously filed a “Motion to Allocate Attorney’s Fees and Expenses,” requesting the court to tax “all expenses and attorney’s fees from September 7, 2000, to State Farm, the uninsured-motorist carrier for [Thompson].”

The trial court entered a judgment that, among other things, taxed costs of $1,159.50 to Miller. The judgment states, in pertinent part:

“Michael Miller personally incurred costs in the amount of $465.45 for attending trial of this cause, and also incurred extensive attorney’s fees, and costs for the preparation and trial of this case to a jury. Defendant Miller argues that State Farm required him to try this cause by buying out the settlement which he had reached with the Plaintiff in the amount of $20,000.00, pursuant to the procedure set out in Lambert v. State Farm, 576 So.2d 160 (Ala.1991). Miller further argues that it is unfair and inequitable to require him to bear the cost of attorney’s fees and expenses in connection with the trial of this case after State Farm exercised its option to opt out, and bought out the settlement. This Court sympathizes with the position of Defendant Michael Miller, and agrees that attorney’s fees and expenses of trial are substantial and burdensome where Defendant’s carrier had tendered its policy limits before trial. Defendant Miller argues that State Farm should pay his attorney’s fees and costs because of the buyout, and the Court recognizes the validity of that position. This issue appears to be a question of first impression. However, Lambert, supra, does not provide for allocation of attorney’s fees as urged by Defendant Miller and this Court, therefore, declines to award attorney’s fees and costs of trial against State Farm because of the lack of any controlling authority on this issue. Said Motion is hereby DENIED, and Miller’s Motion seeking reimbursement of his personal expenses of attending trial in the amount of $465.45, is hereby DENIED.
“The Court notes that Miller’s policy, a Mississippi policy, provided Mississippi minimum limits of $10,000.00, which became the Alabama minimum limits of $20,000.00 pursuant to the Alabama Motor Vehicle Safety-Responsibility Act. Miller’s liability insurance carrier recognized this obligation, and tendered its policy limit of $20,000.00. [T]o require Miller’s carrier to double its available coverage, as well as bear the cost of attorney fees and expenses of attending Court, after tendering its limits to settle the case, creates a windfall to State Farm and a harsh, undue burden on the primary carrier. However, present Alabama law allows this result and Lambert, supra, does not address this issue.”

Miller argues that, when a UIM carrier refuses to consent to a settlement between its insured and the underinsured tortfea-sor, buys out the proposed settlement, and opts out of the proceedings, the UIM carrier forces to trial two parties who were willing to settle the case. He contends that the UIM carrier should, therefore, bear the expense of the trial, including attorney fees and costs. Miller maintains that the procedure established in Lambert “creates an inequity by omission,” in that it does not specify how attorney fees and costs should be allocated among the plaintiff, the defendant, and the UIM carrier after the carrier’s buyout of the defendant’s settlement offer.

I. Attorney Fees

Miller was not ordered to pay Mrs. Thompson’s attorney fee. Therefore, he does not have standing to assert that State Farm should pay, or share in the payment of, Mrs. Thompson’s attorney fee. That would have been a matter for Mrs. Thompson to assert, see Eiland v. Meherin, [Ms. 2001219, June 14, 2002] — So.2d -(Ala.Civ.App.2002).

“As a general rule, ‘a litigant may not claim standing to assert the rights of a third party.’ Jersey Shore Medical Center-Fitkin Hosp. v. Estate of Baum, 84 N.J. 137, 417 A.2d 1003 (1980). A party lacks standing to invoke the power of the court in his behalf in the absence of ‘a concrete stake in the outcome of the court’s decision.’ Brown Mechanical Contractors, Inc. v. Centennial Ins. Co., 431 So.2d 932, 937 (Ala.1983).”

Ex parte Izundu, 568 So.2d 771, 772-73 (Ala.1990). See also Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372-73 (Ala.2000) (in holding that building contractors who were defendants in a subrogation action had no standing to assert that the insurer had no right of subrogation because the insured had not been “made whole,” the court stated that “ ‘the only party with standing to object to the insurer’s lack of payment is the insured’ ”) (quoting Economy Fire & Cas. Co. v. Goar, 564 So.2d 867, 868 (Ala.1990)).

Miller requested the trial court to order State Farm to pay his attorney fee. The trial court correctly denied Miller’s request. The general rule is that a party may recover attorney fees when “authorized by statute, when provided in a contract, or by special equity, such as in a proceeding where the efforts of an attorney create a fund out of which fees may be paid.” Eagerton v. Williams, 433 So.2d 436, 450 (Ala.1983). There is no statutory authorization for awarding Miller an attorney fee from State Farm; there is no contract between Miller or his attorney and State Farm that provides for an attorney fee, and there is no “special equity” exception that applies.

II. Allocation of Costs

Miller was ordered to pay Mrs. Thompson’s costs. He, therefore, does have standing to assert that those costs were not properly taxed to him but, instead, should have been taxed to State Farm. Rule 54(d), Ala. R. Civ. P., states, in pertinent part:

“Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs .... ”

The taxation of' costs under Rule 54(d) rests in the discretion of the trial court, and its decision will not be.reversed in the absence of a clear abuse of discretion. See Garrett v. Whatley, 694 So.2d 1390 (Ala.Civ.App.1997).

Miller argues that, because Mrs. Thompson obtained a verdict that was less favorable than his pretrial offer to her, she was not the “prevailing party” for purposes of taxing costs under Rule 54(d). We disagree. As to Miller, Mrs. Thompson was the prevailing party because the jury rendered a verdict in her favor and the trial court entered a judgment on that verdict. See generally C. Wright et al., Federal Practice & Procedure § 2667 (3d ed.1998).

Miller’s argument implies that the principle underlying the “offer-of-judgment rule” found in Rule 68, Ala. R. Civ. P., should operate here. Rule 68 states, in pertinent part:

“At any time more than fifteen (15) days before the trial begins, a party ■ defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within ten (10) days after the service of the offer, the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.”

(Emphasis added.) The principle underlying Rule 68 cannot fairly be used to allocate costs to a UIM carrier in a Lambert buy-out situation because that principle is incompatible with Lambert. Rule 68 expresses a general prosettlement policy. Alabama’s Rule 68 is substantially the same as Rule 68-, Fed.R.Civ.P. The United States Supreme Court, discussing Federal Rule 68, has stated: “The plain purpose of Rule 68 is to encourage settlement and avoid litigation.” Marek v. Chesny, 473 U.S. 1, 5, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985). Lambert, on the other hand, expressly condones, under certain circumstances, an antisettlement outlook, which our supreme court explained was necessary in order to

“protect the underinsured motorist insurance carrier’s subrogation rights against the tort-feasor, as well as to protect the carrier against the possibility of collusion between its insured and the tort-feasor’s liability insurer at the carrier’s expense.”

Lambert v. State Farm Mut. Auto. Ins. Co., 576 So.2d at 167.

Rule 68 encourages a plaintiff to assess his injuries realistically and gives him a disincentive to overestimate the value of his case. Similarly, Lambert requires that a' UIM carrier undertake a good-faith investigation of its insured’s claim before it decides whether to consent to a proposed settlement between its insured and the alleged underinsured motorist. Lambert, however, expressly validates an antisettlement stance by a UIM carrier who, after a careful investigation, assesses its insured’s claim at less than the alleged underinsured motorist’s liability limits. When, as in the present case, a jury renders a verdict for the insured that is less than the alleged UIM’s settlement offer, then it would be anomalous to penalize the carrier for a correct assessment of the claim by taxing it with costs. In short, the principle underlying the cost-taxing provision of Rule 68 is incompatible with Lambert.

Miller also argues that, because Mrs. Thompson was required to reimburse to State Farm the amount of the verdict, she had no net recovery, and, for that reason, she was not the prevailing party. In support of that argument, Miller cites Government Employees Insurance Co. v. Brewton, 538 So.2d 1375 (Fla.Dist.Ct.App.1989).

In Brewton, the insured settled with the tortfeasor for $10,000, the limits of the tortfeasor’s automobile liability policy, and he then sued his own UIM carrier for UIM benefits. A jury awarded the insured $7500 in damages. The trial court entered a judgment for that amount, permitted the UIM carrier to set off the prior recovery of $10,000, and awarded the insured costs as the prevailing party. The Florida appellate court stated the issue as follows:

“The question is whether [the insureds] could or should be considered as the prevailing party in a suit against their own carrier where [UIM] coverage is not activated by an amount of damages exceeding the threshold. An affirmative finding on this question is necessary to support the award in their favor for costs and attorney’s fees.”

538 So.2d at 1377 (emphasis added). Answering the question in the negative, the Florida court held:

“[0]nly an award which activates the [UIM] coverage would qualify [the insureds] as prevailing parties.... Thus an award of $10,001.00 or greater would be required before [the insureds] could be viewed as ‘prevailing’ over their [UIM] carrier.”

Id. (emphasis added).

The holding in Brewton does not apply here because the Thompsons’ action was not tried against State Farm, the UIM carrier, but against Miller, the underin-sured motorist. Most jurisdictions that have considered the issue have concluded that one does not lose his “prevailing-party” status because his recovery is subject to various setoffs or credits. See, e.g., Crockett v. State Farm Fire & Cas. Co., 849 F.2d 1369, 1372 (11th Cir.1988) (stating that “[¡judgment was entered in favor of Crockett and a setoff against the award does not change that status [as a prevailing party]”); Weeks v. City of Colorado Springs, 928 P.2d 1346 (Colo.Ct.App.1996) (holding that the plaintiff, in whose favor a verdict was returned against a hospital in a medical malpractice action, was entitled to costs under Rule 54(d), Colo. R. Civ. App., despite the fact that the verdict was subject to a setoff of an earlier settlement with the treating physician).

Our conclusion that Mrs. Thompson was, as to Miller, “the prevailing party” entitled to costs under Rule 54(d) does not resolve the question whether the trial court had the authority to allocate those costs to someone other than Miller, the losing party. Although costs are usually taxed to the losing party, a trial court has the discretion to allocate costs differently. See Ennis v. Kittle, 770 So.2d 1090, 1091 (Ala.Civ.App.1999). Citing Driver v. National Security Fire & Casualty Co., 658 So.2d 390 (Ala.1995), Miller points out that the Alabama Supreme Court has approved the allocation of costs to an uninsured-motorist (“UM”) carrier who has opted out of its insured’s suit against the estate of the uninsured motorist. Miller contends that the trial court’s refusal to allocate costs to State Farm was error.

In Driver, the supreme court held that the trial court did not abuse its discretion by allowing the UM carrier’s former counsel to represent the estate of the uninsured motorist and by allocating administrator ad litem fees and expenses to the UM carrier. The court distinguished two earlier cases, Lowe v. Nationwide Insurance Co., 521 So.2d 1309 (Ala.1988), and Ex parte Edgar, 543 So.2d 682 (Ala.1989), on the basis that they involved underin-sured-motorist coverage rather than uninsured-motorist coverage. The court explained that, unlike a UIM carrier who opts out of the proceedings, a UM carrier who opts out may be left without a mechanism to protect its interests at trial.

“Both Lowe and Edgar involved a situation where the defendant motorist was allegedly underinsured. In such a situation, where the defendant motorist has liability insurance but the limits may not be sufficient to fully satisfy the potential judgment against him, the defendant motorist has an attorney retained by the carrier to defend him. When the under-insured carrier is named as a defendant, and chooses to opt out of the trial of the case, there is an attorney defending the interest of the underinsured motorist. As this Court acknowledged in Lowe the underinsured motorist carrier, in opting out of the case, is essentially placing its fate in the hands of an attorney chosen by someone else. 521 So.2d at 1310.
“A different situation is created when the defendant motorist has no liability coverage: If the uninsured motorist carrier opts out of the trial of the case and there is no defense counsel already in place to represent the defendant motorist, then there is no mechanism to protect the interests of the insurer if the defendant motorist fails to, or chooses not to, defend his case. Understanding the need for the uninsured motorist insurance carrier to protect its interests, we hold that once the carrier opts out of the trial under Lowe, it may, in its discretion, hire an attorney to represent the uninsured motorist defendant.”

658 So.2d at 394-95. The Driver court taxed attorney fees and costs to the UM carrier because the carrier had requested that its former counsel be allowed to provide a defense for the uninsured motorist. Having made that request, and having benefitted from its being granted, the UM carrier was liable to pay the expenses associated with it. The Driver court recognized the different positions of UM and UIM carriers who opt out of trial: the UM carrier’s interests will be unprotected unless the uninsured motorist is represented by counsel, whereas the UIM carrier’s interests will be protected by the attorney for the underinsured motorist’s carrier. Because the instant appeal deals with a UIM carrier, we do not consider Driver either controlling or particularly instructive.

We hold that, because the policy underlying the Lambert buyout procedure expressly condones an antisettlement stance on the part of a UIM carrier, it would violate that policy to tax costs to a carrier who has followed Lambert and whose insured obtains a jury verdict that is less than the alleged underinsured motorist’s settlement offer. The trial court obviously “sympathize[d] with” Miller’s equitable arguments, but concluded that there was no legal ground upon which to rule in Miller’s favor. We reach the same conclusion. The judgment of the circuit court is affirmed.

AFFIRMED.

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

THOMPSON and MURDOCK, JJ., concur in the result.


author: THOMPSON, Judge.

text:
    INTERNATIONAL PAPER COMPANY v. Richard DEMPSEY.
    2010660.
    Court of Civil Appeals of Alabama.
    Sept. 13, 2002.
    Joseph T. Carpenter and Nathan C. Prater of Carpenter, Prater, Ingram & Mosholder, L.L.P., Montgomery, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Judge.

Richard Dempsey sued his employer, International Paper Company, seeking to recover workers’ compensation benefits. On February 19, 2002, the trial court entered an order in which it found, in pertinent part, that Dempsey had properly reported his injury to his supervisor; that Dempsey’s claims were not barred by the statute of limitations; that Dempsey’s injuries were compensable under the Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975; and that International Paper was responsible for all of Dempsey’s medical bills attributable to his injuries. In addition, the trial court’s February 19, 2002, order states:

“3. The Court concludes [Dempsey] is entitled to any accrued temporary total and/or permanent partial and/or permanent total compensation benefits accrued to this day and further concludes that [Dempsey] is entitled to all vocational, indemnity, and medical benefits as prescribed by the Workers’ Compensation Act of Alabama as a result of these injuries being deemed compensa-ble by the Court.
“4. The Court reserves ruling at this particular time on the extent of [Dempsey’s] personal permanent disability, if any.”

International Paper filed a notice of appeal from the February 19, 2002, order.

Although the issue is not raised by the parties (Dempsey did not favor this court with a brief on appeal), the issue of jurisdiction is so fundamental that this court takes notice of it ex mero motu. Bacadam Outdoor Advertising, Inc. v. Kennard, 721 So.2d 226 (Ala.Civ.App.1998) (citing Nunn v. Baker, 518 So.2d 711 (Ala.1987), and Wallace v. Tee Jays Mfg. Co., 689 So.2d 210 (Ala.Civ.App.1997)).

In Ex parte DCH Regional Medical Center, 571 So.2d 1162 (Ala.Civ.App.1990), the trial court determined that the injured worker had reached maximum medical improvement (“MMI”) after the on-the-job accident that had caused her temporary total disability and that a mental condition attributable to the on-the-job accident had prolonged the worker’s disability. The trial court ordered the employer to continue to pay the injured worker a specified amount in weekly temporary total disability benefits until she reached MMI. The trial court also specifically reserved jurisdiction to consider on a later date the issue whether the worker had suffered a permanent disability as a result of her on-the-job accident. This court rejected the employer’s argument that the trial court’s judgment was not sufficiently final to support an appeal. This court stated that “the test of a judgment’s finality is whether it sufficiently ascertains and declares the rights of the parties.” Ex parte DCH Reg’l Med. Ctr., 571 So.2d at 1164.

In Mike Makemson Logging v. Colburn, 600 So.2d 1049 (Ala.Civ.App.1992), the trial court entered a judgment awarding the injured worker 30 weeks of temporary total disability benefits and postponing for six months its consideration of the issue of the extent of any permanent disability the worker suffered. The employer argued that the judgment was not sufficiently final to support an appeal. This court rejected that argument and determined that the judgment in that case “contained the necessary findings to support an appeal.” Mike Makemson Logging v. Colburn, 600 So.2d at 1050.

In BE & K, Inc. v. Weaver, 743 So.2d 476 (Ala.Civ.App.1999), the injured worker, Weaver, sought workers’ compensation benefits from his employer. The trial court entered a judgment finding that Weaver’s injuries were compensable, awarding him specific amounts for overdue workers’ compensation benefits, and ordering the employer to continue to pay Weaver temporary total disability benefits. The employer appealed, citing Ex parte DCH Regional Medical Center, supra, in support of its contention that the judgment was final and would support the appeal. This court analyzed Ex parte DCH Regional Medical Center and discussed the specific nature of the findings and conclusions contained in the judgment before it. 743 So.2d at 479-80. We concluded that given the trial court’s specific findings regarding the issues presented to it, the judgment was final and would support the appeal. In so holding, this court stated:

‘We note that the court failed to make a determination as to any permanent disability suffered by Weaver and failed to specifically reserve jurisdiction of that issue for further proceedings. However, like the employee in [Ex parte] DCH [Regional Medical Center, 571 So.2d 1162 (Ala.Civ.App.1990) ], Weaver had not yet reached maximum medical improvement at the time of the proceedings; therefore, a determination as to any permanent disability suffered by him could not be made at that time. The court was not required to specifically reserve jurisdiction of the matter for a future determination of permanent disability, because such a reservation would simply have been surplusage, in light of the availability of a remedy pursuant to § 25 — 5—117[, Ala.Code 1975]. Id. Accordingly, we conclude that the judgment entered by the court sufficiently ascertained and declared the rights and obligations of the parties and is an ap-pealable order. [Mike Makemson Logging v.] Colburn, [600 So.2d 1049 (Ala.Civ.App.1992) ].”

BE & K, Inc. v. Weaver, 743 So.2d at 480 (emphasis added; footnote omitted).

In this case, the parties presented evidence to the trial court only on the issue of the timeliness of Dempsey’s claim and the compensability of his injuries. Neither party addressed whether Dempsey had reached maximum medical improvement. The trial court’s judgment contains specific findings of fact setting forth its reasons for its conclusions that Dempsey’s claim for workers’ compensation benefits was not barred by the statute of limitations and that his injury was compensable.

However, the trial court’s February 19, 2002, order does not set forth any specific amount of temporary disability benefits due to Dempsey. More significantly, although the February 19, 2002, order does state that Dempsey is entitled to some accrued benefits, it mentions temporary-total, permanent-partial, and permanent-total disability benefits without specifying to which form of benefits Dempsey might be entitled. This court has considered appeals from judgments similar to the one before us in which the trial court has retained jurisdiction to determine at a later date the extent of any permanent injury the worker might have suffered. See BE & K, Inc. v. Weaver, supra; Mike Makemson Logging v. Colburn, supra; Ex parte DCH, supra. However, we find the order in this case to be distinguishable from the judgments in those cases because it did not determine the amount or the type of benefits to which Dempsey might be entitled. The trial court’s February 19, 2002, order “is not one wherein the trial court merely exercised judicial economy by retaining jurisdiction over the case.” Lee Apparel Co. v. Hart, 623 So.2d 329, 331 (Ala.Civ.App.1993). We must conclude that the trial court’s February 19, 2002, order does not sufficiently ascertain and set forth the rights and obligations of the parties, and, therefore, that that order is not sufficient to support International Paper’s appeal to this court. See BE & K, Inc. v. Weaver, supra. This court must dismiss an appeal taken from a nonfinal order or judgment. Bacadam Outdoor Advertising, Inc. v. Kennard, supra; Bryant v. Flagstar Enters., Inc., 717 So.2d 400 (Ala.Civ.App.1998).

APPEAL DISMISSED.

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


text:
    Ashley ROMANS and Jessica Foster v. J.P. MILLS, INC., and Lois Wimberly.
    2010303.
    Court of Civil Appeals of Alabama.
    Sept. 20, 2002.

      Rebecca Narmore Pace, Tuscumbia, for appellants.
    Nickolas J. Steles of Ashe, Tanner & Wright, P.C., Tuscumbia, for appellees.
   YATES, Presiding Judge.

The plaintiffs, Ashley Romans and Jessica Foster, appeal from a judgment entered on a jury verdict in their favor, arguing that the trial court erred in denying their motion for a new trial, or, in the alternative, their motion for additur, based on what they allege is an inadequate and inconsistent jury verdict.

On June 6, 2000, Romans and Foster sued J.P. Mills, Inc., and Lois Wimberly, alleging assault and battery and malicious prosecution arising out of an altercation at a convenience store owned by J.P. Mills, Inc., and managed by Wimberly. Before the altercation, both Romans and Foster had been employed at the convenience store. The jury awarded Romans $875 in compensatory damages on her assault-and-battery claim against J.P. Mills and $875 in compensatory damages on her assault- and-battery claim against Wimberly. The jury awarded Foster $500 in compensatory damages on her assault-and-battery claim against J.P. Mills. The jury found in favor of both Romans and Foster on their claims of malicious prosecution, but it awarded no damages for those claims.

The evidence tended to show the following: Romans and Foster were employed at Uncle Joe’s Food Mart, which is owned by J.P. Mills. Wimberly terminated Foster’s employment in January 2000. Romans never returned to work after she failed to show up for her work shift in February 2000. Both Romans and Foster continued to frequent the store, although they were no longer employed there.

On March 3, 2000, Romans and Foster stopped at the store to retrieve a child-safety seat that was in an automobile owned by Romans’s sister. At that time, Romans’s sister was employed as an assistant manager of Uncle Joe’s Food Mart. An altercation arose between Romans and Wimberly over why Romans and Foster were at the store. After a verbal exchange, Wimberly shut an automobile door on Romans’s leg. According to Romans, she then got out of the car and Wimberly threatened her. Romans told Wimberly she did not want to fight. Wimberly then pushed Romans, and in response, Romans pulled Wimberly’s hair. Tracy Moore, an employee at the store, attempted to help Wimberly. At that point, Foster joined in the scuffle. Wimberly filed a complaint against Romans and Foster, alleging third-degree assault. The municipal court subsequently dismissed the charges.

Romans testified that her leg was bruised and that she felt pain and discomfort in that leg for approximately two weeks as a result of the automobile door having been shut on it. She did not seek medical attention for her injury, and she presented no evidence of any medical charges incurred as a result of her injury. Foster testified that she had been bitten on the face and that she had been scratched around her eyes and nose during the altercation. She did not seek any treatment for her injuries.

Romans and Foster argue that their compensatory-damages awards on their assault-and-battery claims were inadequate. A jury verdict is presumed to be correct and will not be set aside because the damages award is inadequate unless the amount awarded is so inadequate as to indicate that the verdict was the result of passion, prejudice, or other improper motive. Stricklin v. Skipper, 545 So.2d 55 (Ala.Civ.App.1988). Neither plaintiff sought medical attention; therefore, there were no damages to be awarded for medical expenses. There was no evidence presented indicating that either plaintiff suffered a long-term injury as a result of the altercation. There was no evidence indicating that either Romans or Foster incurred lost wages. Compare Lipham v. McElroy, 57 Ala.App. 96, 326 So.2d 290 (1976)(judgment on a jury award of nominal damages of $1 reversed where plaintiff sued defendant for assault and battery after being shot and proved medical expenses of $2,356.54, plus pain and suffering).

Although both Romans and Foster testified that they suffered pain and suffering as a result of the assault, the jury’s awards of $750 for Romans and $500 for Foster were not inadequate. Romans testified that she felt pain for approximately two weeks. Foster testified that the scratches to her face hurt and burned for a while. The assessment of damages is a matter largely in the jury’s discretion. Brown v. Foster, 636 So.2d 468 (Ala.Civ.App.1994). Where liability is proven, the verdict must include an amount at least as high as the uncontradicted special damages, as well as an amount sufficient to compensate the plaintiff for pain and suffering. Id. In Brown, the plaintiff argued that the jury verdict arising out of her automobile accident was inadequate because the award of $2,940 did not include any compensation for pain and suffering, where she had proven $2,630.50 in medical bills and $400 in lost wages. This court held that the verdict was not inadequate because the testimony had been disputed regarding the amount of her lost wages and, therefore, the damages award indicated that the jury may have awarded some smaller amount for pain and suffering. See also Shannon v. Miller, 644 So.2d 9 (Ala.Civ.App.1994)(in an action for injuries sustained in an automobile accident, a jury’s award of $1,204 for future damages was not inadequate where the plaintiff did not claim past medical expenses, her future medical expenses were contradicted, and it was possible that the some nominal amount had been awarded for her pain and suffering).

The plaintiffs also argue that the jury’s finding in their favor on their malicious-prosecution claims was inconsistent with the jury’s award of zero damages for those claims. In order to prove malicious prosecution, a plaintiff must show: (1) a judicial proceeding initiated by the defendant against the plaintiff; (2) without probable cause; (3) malice on the part of the defendant; (4) termination of the proceeding in favor of the plaintiff; and (5) damage. Delchamps, Inc. v. Morgan, 601 So.2d 442 (Ala.1992). A finding of damage or injury is a prerequisite to a verdict in the plaintiffs favor. To find in favor of the plaintiff and then to award no damages is, as a matter of law, inconsistent, on its face. Ward v. Diebold, Inc., 486 So.2d 1261 (Ala.1986). Alabama appellate courts have not sanctioned other instances of inconsistent verdicts. See Stinson v. Acme Propane Gas Co., 391 So.2d 659 (Ala.1980)(award of zero damages in negligence and wantonness action reversed for a new trial); Downs v. Goodwin, 827 So.2d 122 (Ala.Civ.App.2002)(zero-damages award for plaintiff arising out of automobile accident was inconsistent and required new trial); Monteleone v. Trail Pontiac, Inc., 395 So.2d 1003 (Ala.Civ.App.1980)(zero-damages award for plaintiff in fraud action was inconsistent and required a new trial).

Finally, the plaintiffs argue that the use of an additur allows the trial court another remedy, instead of granting a new trial, when a jury’s award is inadequate. “Where damages are determined to be inadequate, the court may, in lieu of a new trial and with the consent of the defendant, increase the damages, where the amount to be added is certain.” City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998), citing Norman v. Baldwin County, 652 So.2d 1145 (Ala.1994). Here, there is nothing in the record to reflect that the defendants agreed to an additur. Also, both plaintiffs sought damages for mental anguish and loss of reputation, among other things. Where the amount of damages is certain, the trial court may increase an inadequate award. However, when there is no fixed and exact standard upon which to base the amount of damages to be awarded, the damages assessment must be left to the trier of facts. Pierce v. Strickland Paper Co., 653 So.2d 306 (Ala.Civ.App.1994)(trial court had the authority to increase the damages awards that were subject to a fixed standard, such as medical expenses, although it lacked the authority to increase the damages awards that were for uncertain damage, such as pain and suffering).

We affirm the judgment insofar as it relates to the plaintiffs’ claims of assault and battery. However, we reverse the judgment and remand for a new trial insofar as it relates to their malicious-prosecution claims.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON and PITTMAN, JJ., concur.


text:
    John YOUDATH v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
    2010449.
    Court of Civil Appeals of Alabama.
    Sept. 20, 2002.

      Virginia P. Meigs, Birmingham, for appellant.
    I. Ripon Britton, Jr., of Hand Arendall, L.L.C., Birmingham, for appellee.
   CRAWLEY, Judge.

John Youdath appeals from the trial court’s grant of a motion to dismiss filed by the Great Atlantic & Pacific Tea Company, Inc. (hereinafter referred to as “A & P”). We affirm.

On July 24, 1998, Youdath sued Jerry Elkins and Anita Elkins, doing business as Elkins Brokerage (hereinafter collectively referred to as “Elkins”), seeking $88,200 on a written instrument, plus interest and costs. On May 11, 1999, Youdath amended his complaint to state counts against Elkins for breach of contract, fraud, deceptive trade practice, and negligence. The complaint alleged that Youdath and Elkins had entered into a contract in which Elkins was to deliver 2,800 cases of Kit Kat candy bars to Youdath for $88,200. Youdath alleged that payment was made to Elkins, but the candy bars were never delivered to him.

On December 13, 1999, Youdath filed a motion for a summary judgment with attached exhibits to which Elkins filed a motion in opposition on September 19, 2000. On October 16, 2000, the trial court entered a summary judgment for Youdath on his breach-of-contract claim, awarding him $88,200, but denied the summary-judgment motion as to his remaining claims. On December 28, 2000, Elkins filed a motion for a summary judgment on Youdath’s remaining claims to which You-dath filed a motion in opposition on January 8, 2001. On January 18, 2001, the trial court entered a “nonfinal” summary judgment for Elkins on Youdath’s remaining claims and allowed Youdath 45 days to add additional defendants. On January 22, 2001, the trial court amended its order to state that the summary judgment as to Elkins was “conditionally granted.”

On February 15, 2001, Youdath amended his complaint to add A & P, Mark Everett, and Mack Powell as defendants. The complaint was also amended to add counts alleging unjust enrichment and breach of contract under a third-party beneficiary theory and to remove the negligence count. Attached to the amended complaint were the affidavits of Anita El-kins, Jerry Elkins, Mark Everett, and Youdath, which had previously been filed with Youdath’s and Elkins’s motions for a summary judgment. On that same day, Youdath filed a motion seeking the trial court to reconsider the summary judgment it had entered for Elkins.

On June 20, 2001, after the trial court had allowed additional time to file a response to Youdath’s complaint, A & P filed a motion to dismiss with an attached memorandum of law and exhibits. A & P asserted that its motion was due to be granted on grounds that (1) the complaint failed to state a claim upon which relief could be granted; (2) Mike Ishmael, who A & P argues is an indispensable party, had not been joined; (3) the third-party beneficiary claim was defective; (4) Youdath had failed to plead a contract of which Youdath was a third-party beneficiary; (5) Youdath had failed to plead that Ishmael, or any other defendant, was an agent of A & P; and (6) there was insufficiency of process. On August 20, 2001, Youdath filed an opposition to A & P’s motion to dismiss with attached exhibits. .On October 18, 2001, the trial court granted A & P’s motion to dismiss.

On October 24, 2001, Elkins filed a motion seeking to have the summary judgment entered for it made final pursuant to Rule 54(b), Ala. R. Civ. P. On November 7, 2001, the trial court entered an order making the summary judgments for Youdath and Elkins final; Youdath was awarded $93,492. The trial court also dismissed all remaining claims against Everett and Powell. On November 16, 2001, Youdath filed a motion to reconsider the summary judgment for Elkins and the dismissal for A & P; the trial court denied that motion on November 19, 2001. On November 19, 2001, Youdath filed a motion to alter, amend, or vacate the trial court’s summary judgment as to him, asserting that the trial court had miscalculated the amount of interest due to be paid by Elkins. On December 4, 2001, the trial court amended its judgment to award Youdath $112,896.

On December 28, 2001, Youdath filed a notice of appeal to the supreme court. On February 5, 2002, this case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975. On appeal, Youdath argues that the trial court erred in granting A & P’s motion to' dismiss because (1) when goods are identified in a sales agreement, a party to that agreement may recover against third parties who caused the goods to be destroyed or converted; (2) Ishmael was not an indispensable party; and (3) he sufficiently pleaded the existence of a contract to which he was a beneficiary.

Although the trial court granted what was entitled as a motion to dismiss, A & P’s attachment of exhibits to its motion converted it to a motion for a summary judgment.

“When matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment, Rule 12(b), Ala. R. Civ. P.; this is the case regardless of what the motion has been called or how it was treated by the trial court, Papastefan v. B & L Constr. Co., 356 So.2d 158 (Ala.1978); Thorne v. Odom, 349 So.2d 1126 (Ala.1977).”

Hornsby v. Sessions, 703 So.2d 932, 937-38 (Ala.1997). Our review of a summary judgment is de novo.

“In reviewing the disposition of a motion for summary judgment, “we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

Youdath first argues, relying on § 7-2-722, Ala.Code 1975, that when goods are identified in a sales agreement, a party to that agreement may recover against third parties who caused the goods to be destroyed or converted. Our review of the record shows that Youdath never asserted this argument in the trial court. An issue may not be raised for the first time on appeal, Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992), and we cannot hold a trial court in error in regard to theories or issues not presented to that court. Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). Accordingly, we will not address this argument further.

Youdath next argues that Ishmael was not an indispensible party. Rule 19, Ala. R. Civ. P., states, in pertinent part:

“(a) Persons to Be Joined if Feasible. A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party....
“(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoin-der.”

Ishmael was a much-involved actor in this transaction. Youdath first contacted Elkins seeking to purchase the candy bars. Elkins then contacted Everett, a person engaged in the food and beverage business, about supplying the candy bars. Everett later responded that he had found the candy bars through Ishmael, a food broker in Atlanta, Georgia. Powell, an alleged agent of Elkins, then contacted Youdath to tell him that they had located the candy bars he sought; Youdath then forwarded payment for the candy bars to Elkins. Elkins later met with Everett and Ishmael at an A & P location in Atlanta. The candy was loaded onto an A & P truck for shipment to Youdath in California, and Elkins received receipts of payment from both Everett and Ishmael. The letterhead on the receipt provided by Ishmael stated that he was a food and beverage broker serving as an agent for Kroger, Winn Dixie, A & P and Publix groceries stores. After the truck had been loaded with the candy bars, Elkins prepared a bill of lading stating that A & P, per Ishmael, was both the supplier and carrier of the candy bars. En route to California, the truck in which the candy bars were being shipped experienced refrigeration problems; the candy bars were frozen and were ruined. Ishmael later contacted Everett and took responsibility for the ruined candy bars. Everett met Ishmael in Washington, D.C., where Ishmael gave him a promissory note for $100,000 to be paid to Elkins. Payment was never made by Ishmael.

Youdath’s second amended complaint never makes mention of Ishmael, rather it states that it was a beneficiary of a contract between Elkins and Everett and A & P. A ground stated in support of A & P’s motion to dismiss was that Youdath failed to prove that Ishmael, or any other defendant, was an agent of A & P. In response to A & P’s motion, Youdath asserted, and his assertion is supported by evidence in the record, that Ishmael was the subject of an investigation by the Federal Bureau of Investigation (“FBI”) and that the FBI had not been able to locate Ishmael. In its brief to this court, Youdath further states, in pertinent part:

“While [A & P] may argue that Ishmael was not its agent during the ill-fated sale and delivery of the Kit Kat bars made the basis of [Youdath’s] complaint, it tendered no evidence to the trial court disaffirming its principal/agent relationship with Ishmael.... Here, Ishmael’s principal is [A & P] and it is undisputed that [A & P] exercised tremendous control over the transaction as [A & P] allowed Ishmael to transfer 2,800 boxes of Kit Kat bars from its ... store onto [its] truck....
“Suffice it is to say that in response to the three affidavits of eye witnesses confirming [A & P’s] involvement in this ill-fated transaction, [A & P] has filed no opposing affidavits, deposition testimony, or other admissible evidence to rebut the presumptions created by [Youdath’s] submission.
“Because [A & P] is bound by the acts of its agent, Ishmael, [Youdath] can obtain the complete financial relief he seeks without Ishmael’s presence in this cause and Mr. Ishmael is not an indispensable party pursuant to Rule 19(b) of the Alabama Rules of Civil Procedure.”

Youdath erroneously attempts to place a burden on A & P to disclaim that Ishmael was its agent. Our supreme court has observed:

“ ‘ “ ‘The test for agency is whether the alleged principal has retained a right of control over the actions of the alleged agent.’ ” Ex parte Wild Wild West Social Club, Inc., 806 So.2d 1235, 1241 (Ala.2001)(quoting Gist v. Vulcan Oil Co., 640 So.2d 940, 942 (Ala.1994)).... The party asserting the existence of an agency relationship has the burden of presenting sufficient evidence to prove the existence of that relationship. See Ex parte Wild Wild West Social Club, 806 So.2d at 1242 (citing Mardis v. Ford Motor Credit Co., 642 So.2d 701, 704 (Ala.1994)). Agency may not be presumed. Ex parte Wild Wild West Social Club, 806 So.2d at 1242 (citing Carlton v. Alabama Dairy Queen, Inc., 529 So.2d 921 (Ala.1988)). The plaintiff must present substantial evidence of an agency relationship. Id.’
“Dickinson v. City of Huntsville, 822 So.2d 411, 416 (Ala.2001). ‘Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ Id. (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).”

Worthy v. Cyberworks Techs., Inc., 835 So.2d 972, 980-81 (Ala.2002). As stated earlier, Youdath’s second amended complaint made no mention of Ishmael. The affidavits of Anita Elkins, Jerry Elkins, and Everett attached to the amended complaint stated only that it was their “understanding” that Ishmael was an agent for A & P. Those affidavits constitute only an assertion that Ishmael was an agent of A & P, not amounting to substantial evidence of agency. Accordingly, we conclude that Youdath failed to prove that Ishmael was an agent of A & P and that had a judgment been entered in Ishmael’s absence, it would have been prejudicial to A & P. Further, Youdath had already received a remedy pursuant to the trial court’s judgment for him against Elkins. Rule 19(b), Ala. R. Civ. P.

Youdath’s final argument is that he sufficiently pleaded the existence of a contract to which he was a beneficiary. In his second amended complaint, Youdath asserted that he was a beneficiary of a contract entered into by Elkins and Everett and A & P. In support of this assertion, Youdath cited the attached affidavits of Anita Elkins, Jerry Elkins, and Mark Everett. However, none of these affidavits state that Elkins or Everett entered into a contract with A & P. Rather, they state that Elkins dealt with Everett and Everett who, in turn, dealt with Ishmael, whom Youdath failed to establish was an agent of A & P. The attached affidavits do not support what is asserted in Youdath’s second amended complaint. “[W]hen a variance occurs between the pleadings and an exhibit attached thereto, the contents of the exhibit control.” Raburn v. Bailes, 565 So.2d 122, 125 (Ala.1990) (citing McCullough v. Alabama By-Products Corp., 343 So.2d 508, 510 (Ala.1977)). Thus, Youdath failed to sufficiently plead that it was a beneficiary of a contract to which A & P was a party.

For the foregoing reasons, the judgment of the trial court is due to be affirmed.

AFFIRMED.

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

      . The plaintiff in the complaint was originally listed as Parallel Products, Inc., but the trial court subsequently allowed Youdath to be substituted as the plaintiff.

      . While not at issue in this appeal, we presume that the trial court’s allowance of the 45 days to add new defendants was a discretionary decision in response to an oral motion to amend made by Youdath in the trial court's hearing on Elkins’s motion for a summary judgment — the record contains no written motion. Otherwise, Youdath’s naming additional defendants would not have been warranted because the trial court’s judgment disposed of all issues between Youdath and Elkins. See, e.g., Kilgore v. Alabama By-Products Corp., 581 So.2d 872, 874 (Ala.Civ.App.1991) (“Further, it is a well-settled principle of law in Alabama that a plaintiff cannot, as a matter of right, amend a complaint after summary judgment has been rendered in favor of the defendant.”) (citing Papastefan v. B & L Constr. Co., 356 So.2d 158 (Ala.1978)).

      . While Youdath stated he was appealing the summary judgment for Elkins in his notice of appeal, he has not asserted any argument concerning the summary judgment for Elkins in his brief.