author: MURDOCK, Judge. YATES, Presiding Judge,

text:
    SAFECO INSURANCE COMPANIES v. David BLACKMON.
    2000452.
    Court of Civil Appeals of Alabama.
    May 31, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1011731.

      Bennett L. Pugh, Joseph H. Driver, and Khristi Doss Flood of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant.
    Robert W. Lee and Wendy N. Thornton of Lee & Thornton, Birmingham, for ap-pellee.
   MURDOCK, Judge.

Safeco Insurance Companies appeals from a trial court’s judgment awarding David Blackmon benefits under the Alabama Workers’ Compensation Act. We reverse the trial court’s judgment.

Blackmon has worked in the insurance business since graduating from college in 1973. During the almost 28 years between Blackmon’s graduation and the time of trial, Blackmon worked for several insurance companies before working for Safeco. For one of these, Hartford Insurance Company, Blackmon worked for approximately 19 years. He began work for Hartford as a claims adjuster and was eventually promoted to the position of claim manager; in that position he was responsible for his entire office and all of the claims processed by that office. This managerial position entailed supervising of 10 to 15 employees, as well as overseeing the budget. After leaving Hartford, Blackmon worked for another national insurance company as a supervisor.

Blackmon went to work for Safeco in 1990 as a claims representative, a position he continued to hold at the time of trial. As a claims representative, Blackmon does not manage or supervise any other employees, and he is not responsible for the budget; he is a salaried employee. Until the summer of 1998, Blackmon’s average monthly caseload with Safeco was somewhere between 100 and 130 claims, an amount Blackmon described as manageable.

For a two- to three-month period during the summer of 1998, Blackmon’s caseload increased to between 150 and 200 claims per month. At the time, Safeco had acquired another insurance company and a number of employees had resigned during the transition, forcing the claims adjusters who remained with the company to absorb the workloads of those adjusters who had resigned. In addition to the increased workload during the period, Safeco was in the process of converting from a paper-based record-keeping system to a computerized system. Blackmon testified that he had no experience with computers and that he found these changes in technology to be tedious and time-consuming, causing him to fall further behind in his work. Although Safeco adjusters were required to work 37.5 hours per week, each adjuster was also required to perform the essential work on all assigned claims in a timely fashion, and it appears from the record that the 37.5-hour figure represented a minimum requirement, not a maximum requirement. Consequently, for a period of two to three months ending on September 8, 1998, Blackmon worked 70-75 hours per week.

On September 8, 1998, Blackmon came to work at about 7:00 a.m., turned on his computer, and began to read his e-mail. He testified that he was looking around his office, feeling overwhelmed by his workload, when he felt his “whole body just like started from the tip of my toes up — just like heated up, and it was like somebody was inside my chest with a sledgehammer just trying to beat their way out of my chest.”

Blackmon testified that he immediately took two aspirins and told a coworker that he would be going to the emergency room because he felt like he was having a heart attack. Blackmon went to the emergency room at Brookwood Hospital in Birmingham; he was admitted to the hospital for testing. Dr. David Jackson, who became Blackmon’s treating physician, testified by deposition. He stated that he had diagnosed Blackmon with unstable angina pec-toris. After performing a heart catheteri-zation and coronary arteriogram, Dr. Jackson concluded that Blackmon was suffering from two-vessel coronary-artery disease. A procedure called “rotational atherectomy” was performed on Black-mon. After the affected arteries were cleared by the atherectomy, Dr. Jackson placed two “stents,” or tubes, inside one of the arteries to help keep it open. These procedures were successful and, according to Dr. Jackson, the affected arteries were left with “zero percent blockage,” and were “completely opened up.” Blackmon was discharged on September 9, 1998, the day after the procedure, and was told he could return to work on the following Monday.

When questioned at his deposition on the causation of Blackmon’s illness, Dr. Jackson explained that he believed that multiple factors had combined to cause Blackmon’s condition, including: Black-mon’s brief history of smoking, his family history of heart disease, his high blood pressure, his high cholesterol, and stress. Dr. Jackson explained that it was impossible to separate the factors and assign a degree of significance to each one, although he did state that he did not believe that Blackmon’s smoking history was very significant because he had smoked for such a brief period and had ceased smoking so long ago.

Blackmon was readmitted to the hospital with complaints of chest pain on September 14, 1998. He was evaluated by one of Dr. Jackson’s partners who performed a cardiac catheterization on Blackmon, determined that there were no new blockages, and confirmed that the stents that had been surgically placed in Blackmon’s arteries during his previous hospital admission were performing well. Dr. Greg Champion, a gastroenterologist, performed some tests and concluded that Blackmon suffered from gastroesophageal reflux disease, and surmised that this had caused his chest pain. Dr. Jackson saw Blackmon in his office for a follow-up visit on September 24, 1998, and noted that Blackmon had returned to work and was recuperating well.

On October 22, 1998, Dr. Jackson wrote a letter to Angela Luse, a representative of Safeco’s workers’-compensation insurance carrier, to inform her that, in his opinion, stress experienced by Blackmon in connection with his work had been a contributing factor in causing Blackmon’s coronary-artery disease. Dr. Jackson wrote a second letter on September 80, 1999, to Wendy Thornton, an attorney whom Blackmon had retained to assist him in the recovery of workers’-compensation benefits for injuries he claims were related to the work he performed at Safeco. In the letter he stated that Blackmon’s coronary-artery disease appeared to be well under control following the performance of the 1998 surgical procedure and Blackmon’s modification of his lifestyle and diet. In the letter, Dr. Jackson further stated:

“The coronary artery disease development is, therefore, in my opinion, multi-factorial, and I do not believe that one can isolate one risk factor as the most important. However, I do believe that if he worked 70-75 hours a week as an insurance adjuster, that over the years that may have contributed to the development of his coronary artery disease. “As far as I am able to determine from his current physical status he certainly is able to be gainfully employed. I would not suggest that he do heavy physical labor or seriously stressful activities, nor do I think that he should work long hours, and would recommend a normal work week of 40-45 hours or so. I do not feel that he should be particularly limited otherwise.
“I do think that it might be useful for an expert in the area of stress and its relationship to heart disease and other disorders be consulted.”

On January 7, 1999, Blackmon sued Safeco, seeking reimbursement of medical expenses and disability benefits related to his coronary-artery disease. The matter proceeded to a bench trial at which Black-mon, Paul Mangum (Blackmon’s supervisor), and Dr. Duane Randleman (Safeco’s medical expert) each testified. As noted, the deposition testimony of Dr. Jackson also was received into evidence, as were Blackmon’s medical records. Dr. Jackson testified that, in his opinion, “stress [was] a definite risk factor for coronary artery disease.” Dr. Randleman, a thoracic surgeon, testified that he had reviewed Dr. Jackson’s medical records and Dr. Jackson’s deposition, but that he had never examined Blackmon. Although Dr. Ran-dleman agreed with Dr. Jackson that a family history of heart disease, high blood pressure, and an elevated cholesterol level were all risk factors, he testified that stress was not a factor in causing the build-up of plaque in coronary arteries, or coronary-artery disease. He therefore disagreed with Dr. Jackson’s opinion that stress had contributed to Blackmon’s coronary-artery disease.

Blackmon testified that he was currently employed in the same position with Safeco that he held at the time of the September 8,1998, incident, but that he was making a slightly higher wage due to a merit-based salary increase. He further testified that he was working fewer hours because he had consciously disciplined himself in order to reduce his workweek to 40 to 45 hours per week on the advice of his physician, Dr. Jackson.

The trial court found that Blackmon had returned to work at a slightly higher wage than he was earning before his treatment by Dr. Jackson. Nonetheless, the trial court concluded that Blackmon had a 30% physical impairment to the body as a whole.

Safeco appeals, contending that the trial court erred in ruling that Blackmon’s heart condition arose out of and in the course of his employment. Safeco also contends that the trial court erred in finding that Blackmon suffered a 30% physical impairment.

We begin our analysis by noting that this case appears to involve a disease, not an “injury” as defined in Ala.Code 1975, § 25 — 5—1(9). Ordinarily, in such a case, whether the employee’s disease would be compensable would be governed by Ala.Code 1975, § 25-5-110 et seq., dealing with occupational diseases. In his complaint, however, Blackmon did not seek recovery for an occupational disease, but for an “injury.” Moreover, at trial, counsel for Blackmon advised the court, without objection, that the parties stipulated that there were two issues for the court to consider: (1) “whether the accident arose out of and in the course of the employment” and (2) “the extent of Mr. Black-mon’s disability.”

Although the transcript reflects counsel’s use of the word “accident” in describing the first of these two issues, it is clear that the court and the parties alike applied the causation standards applicable to “non-accidental injuries.” Among other things, immediately after describing the two issues to which the parties had stipulated, counsel for Blackmon noted, without objection, that the “case that outlines the standard to use for causation and non-accidental injuries, which is what this case is about” was Ex parte Trinity Industries, Inc., 680 So.2d 262 (Ala.1996). Consistent with Ex parte Trinity Industries and Ala. Code 1975, § 25-5-81(c), the trial court’s judgment describes the first of the two stipulated issues as “[wjhether by clear and convincing evidence the employee’s heart condition arose out of and in the course of his employment and whether medical causation was established.”

The trial court therefore properly limited itself to examination of the above-described two issues, without addressing those limitations to recovery under the Act that are peculiar to occupational diseases. See Ala. Code 1975, § 25-5-110 et seq. We must do the same. See Continental Eagle Corp. v. Mokrzycki, 611 So.2d 318 (Ala.1992) (holding that issues not raised at the trial level cannot be considered for the first time on appeal). We turn first then to a consideration of the issues of legal and medical causation.

An employee bears the burden of proving that his injuries arose out of and in the course of his employment. See Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996). In cases involving nonac-cidental injuries, the employee must prove both legal and medical causation to meet the “arising out of’ requirement. See id. Furthermore, in cases involving gradual deterioration or cumulative stress, the employee must establish both legal and medical causation by clear and convincing evidence, rather than by a mere preponderance of the evidence. See Tallassee Super Foods v. Hepburn, 771 So.2d 477 (Ala.Civ.App.2000); § 25-5-81(c), Ala. Code 1975. Under the Workers’ Compensation Act, “clear and convincing evidence” is defined as

“evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”

Ala.Code 1975, § 25-5-81(c).

To establish legal causation, the injured employee must prove that “the performance of the duties for which he [or she] is employed ... as an employee expose[d] [him or her] to a danger or risk materially in excess of that to which people not so employed are exposed [ordinarily in their everyday lives].” Ex parte Trinity Indus., Inc., 680 So.2d at 266 (quoting City of Tuscaloosa v. Howard, 55 Ala.App. 701, 705, 318 So.2d 729, 732 (Civ.1975)). In the present case, we conclude that Blackmon failed to provide sufficient evidence tending to show that his job as an insurance adjuster for Safeco exposed him to a risk materially in excess of that to which people not so employed are generally exposed.

Blackmon worked as an insurance adjuster for almost 28 years. During that time, he held positions with much higher levels of responsibility than the level of his responsibility at Safeco. During the summer of 1998, Blackmon experienced, in addition to the stress of his work, stress from several major life changes, including a recent divorce, the death of his father, and sending his daughter to college. In their everyday lives, people often are exposed to temporary periods of significant stress. There was little evidence from which the trial court could conclude that the stress Blackmon experienced at work for the two to three months in question was more severe than what people generally are exposed to at some time or another in their everyday lives. After carefully reviewing the record before us, we conclude that the evidence was not of such weight and quality that the trial court reasonably could have found it to clearly and convincingly prove that Blackmon’s performance of his duties at work during those two to three months exposed him to a risk or danger materially in excess of that to which people are exposed in their everyday lives.

With respect to medical causation, an employee must show that the risk to which he or she was exposed was, in fact, a contributing cause of the employee’s injury. Further, as previously noted, Black-mon was required in this case to prove such causation by clear and convincing evidence.

The evidence presented showed that, on September 8, 1998, after arriving at work and beginning to check his E-mails, Black-mon began experiencing chest pains. Blackmon testified that he had been experiencing similar, though less severe, pains for the previous six months. Those six months would have included at least three months that fell before the two- to three-month period of 70- to 75-hour workweeks that are at issue.

Further, although Dr. Jackson testified in his deposition that, in his opinion, Black-mon’s stress was a risk factor for his coronary artery disease, he necessarily did so in the context of what he understood with respect to the history of that stress (i.e., its intensity and duration). That history, as understood by Dr. Jackson, was reflected in Dr. Jackson’s September 1999 letter to Blackmon’s attorney in which Jackson opined that “if [Blackmon] worked 70-75 hours a week as an insurance adjuster, that over the years that may have contributed to the development of his coronary artery disease.” (Emphasis added.) Dr. Jackson’s deposition testimony reaffirmed this understanding of Blackmon’s work history:

“Q. You also indicate in that letter that Mr. Blackmon felt that he was under a great deal of stress at work. And I guess ultimately you considered that as one of the stress factors, or one of the factors which would contribute to the development of this [arteriosclerotic heart disease]?
“A. Right.
“Q. Now, you mentioned in a letter to [Blackmon’s attorney] that Mr. Black-mon had told you that he worked 70 to 75 hours a week over the years.
“A. Uh-huh (in the affirmative). Yes.
“Q. What other activities or aspects of Mr. Blackmon’s job did he relate to you?
“A. I don’t recall. Let me see. ... Right at this point I don’t recall any other information about his work.
“Q. So it would just be essentially based on him telling you he worked 70, 75 hours a week?
“A. Yes.”

(Emphasis added.) When later asked whether, if Mr. Blackmon had only worked 37)£ hours a week, he would have considered that to be enough “working hours for [him] to consider it a factor in the development of’ Blackmon’s heart disease, Dr. Jackson answered in the negative.

The period during which Blackmon worked for 70 to 75 hours per week was only two to three months. After a careful review of the record, we conclude that it does not contain sufficient evidence from which the trial court could have reasonably concluded that Blackmon clearly and convincingly proved that his heart condition was, in fact, caused by a materially excessive risk to which he was exposed in his employment.

We now turn to the second-issue addressed by the trial court, whether Blackmon suffered any physical impairment and, if so, to what degree. Under the Workers’ Compensation Act, compensation due an employee for an injury not otherwise enumerated in the Act is governed by § 25-5-57(a)(3)g., Ala.Code 1975. According to that Code section, a permanent, partial disability is compensable according to the claimant’s loss of earning capacity. See, e.g., Johnson v. Alabama Power Co., 670 So.2d 39 (Ala.Civ.App.1993); Bolding v. Fluorocarbon Co., 660 So.2d 1308 (Ala.Civ.App.1995); Smither v. International Paper Co., 540 So.2d 760 (Ala.Civ.App.1989).

Section 25-5-57(a)(3)i., Ala.Code 1975, governs the award of permanent partial disability benefits when a claimant returns to work at a wage equal to or higher than the wage he was earning at the time of his injury. That Code section provides, in pertinent part, that if

“an injured worker returns to work at a wage equal to or greater than the worker’s pre-injury wage, the worker’s permanent partial disability rating shall be equal to his or her physical impairment and the court shall not consider any evidence of vocational disability.”

In this case, Blackmon’s earnings after the September 8, 1998, incident were equal to or higher than his earnings before the incident. The trial court, therefore, could not properly have considered any evidence of vocational disability, but instead was limited to a determination of whether and to what extent Blackmon had suffered a physical impairment. Safeco argues that there is no evidence indicating that Blackmon suffered a permanent impairment, and therefore the present case is distinguishable from Ex parte Trinity Industries, in which the employee actually suffered a stroke and the permanent impairment resulting therefrom. Instead, according to Safeco, Blackmon suffered from a disease — coronary-artery disease— which was corrected by his treating physician. Indeed, the evidence was undisputed that, as a result of Dr. Jackson’s successful treatment of Blackmon’s disease, Blackmon did not suffer a heart attack. Accordingly, Blackmon was able to return to work full-time — 40 to 45 hours per week — with no other limitations. Safeco therefore argues that a finding that Black-mon suffered any injury or that an injury has caused Blackmon to suffer a 30% physical impairment is not supported by substantial evidence. See Discovery Zone v. Waters, 753 So.2d 515 (Ala.Civ.App.1999). In light of our disposition of this case on the grounds discussed above, however, we need not decide this final issue.

We are cognizant of the fact that the Workers’ Compensation Act does not “alter the rule that this court does not weigh the evidence before the trial court.” See Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995). However, after carefully reviewing the record in the present case, we must conclude that the record in this case was not such as would allow the trial court to reasonably conclude that Blackmon proved both legal causation and medical causation by clear and convincing evidence. Accordingly, the judgment of the trial court is reversed, and the cause is remanded for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

YATES, P.J., dissents.

YATES, Presiding Judge,

dissenting.

Because I believe that Blackmon proved both legal and medical causation by clear and convincing evidence, I must respectfully dissent from the main opinion.

For an injury to be compensable, it must be “caused by an accident arising out of and in the course of’ the employee’s employment. § 25-5-51, Ala.Code 1975. The phrase “arising out of’ an employee’s employment requires a causal connection between the injury and the employment. Dunlop Tire & Rubber Co. v. Pettus, 623 So.2d 313 (Ala.Civ.App.1993). The phrase “in the course of’ the employee’s employment refers to the time, place, and circumstances under which the accident occurred. Id. To establish causation in a workers’ compensation case where the injury is non-accidental, i.e., where the injury was not caused by some sudden and unexpected external event, an employee must satisfy a two-part causation test by producing substantial evidence establishing both (a) legal causation and (b) medical causation. Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996). See also City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (Civ.1975). To prove “legal causation,” one need only establish that “the performance of his or her duties as an employee exposed him or her to a ‘danger or risk materially in excess’ of that to which people are normally exposed in their everyday lives.” Ex parte Trinity Indus., Inc., 680 So.2d at 267, quoting Howard, 55 Ala..App. at 705, 318 So.2d at 732. To establish medical causation, a claimant “must produce substantial evidence tending to show that the exposure to risk or danger proven in step one of the Howard test ‘was in fact [a] contributing cause of the injury’ for which benefits are sought.” Ex parte Trinity Indus., Inc., 680 So.2d at 269, quoting Howard, 55 Ala.App. at 706, 318 So.2d at 732. Additionally, for cases involving gradual deterioration or cumulative stress, the employee must prove by clear and convincing evidence both legal and medical causation. § 25-5-81(c), Ala. Code 1975.

The evidence presented in this case indicates that Blackmon’s caseload had fil-creased by 50 or more claims per month; that because some adjusters had resigned their employment, Blackmon had to absorb additional workload; that Safeco was converting to a new computer system and Blackmon found these changes to be tedious and time-consuming, because he had had no experience with computers; and that Blackmon had been working 70 to 75 hours per week for several months in order to manage his caseload. I conclude that these factors exposed Blackmon to “ ‘danger or risk materially in excess’ of that to which people are normally exposed in their everyday lives.” Ex parte Trinity Indus., Inc., 680 So.2d at 267, quoting Howard, 55 Ala.App. at 705, 318 So.2d at 732. Additionally, the expert medical testimony of Dr. Jackson, Black-mon’s treating physician, indicates that the stress associated with Blackmon’s employment, including the 70- to 75-hour workweek, contributed to his coronary artery disease.

Accordingly, I would affirm the judgment of the trial court; therefore, I dissent from the main opinion.

      . Dr. Jackson explained that the diagnosis of “unstable angina pectoris” meant that the patient was suffering pain in the heart related to narrowed heart arteries. He further explained that he considered such a condition to be an acute emergency requiring hospitalization and treatment to prevent the onset of a heart attack.

      .Dr. Jackson explained in his deposition that this meant that two artery branches providing blood to the heart were irregular and narrowed, with calcium deposits causing blockages of 40% to 50% in one of the vessels and 75% to 80% in the other.

      . The procedure involved using ultrasound to determine direction and lowering a rotating tube with a burr on the end inside the affected artery to ream the artery and open it for more normal blood flow.

      . Blackmon’s mother had suffered from heart problems and had had a pacemaker implanted.

      . The trial court repeatedly referred to Black-mon's condition as one of a coronary-artery "disease.” In the "conclusions” portion of its judgment, the trial court referred in the same sentence to Blackmon’s condition as involving both a "nonaccidental injury” and a “disease.” The record indicates that Dr. Jackson successfully treated that disease before a heart attack or any other "injury” resulted therefrom.

      . Dr. Jackson testified in his deposition that he advised Blackmon that "he could go back to full-time [work], and do whatever he ordinarily did.” Dr. Jackson also testified that "I told him he could go back to work, and not only that, he could begin to move back towards jogging and build that up over the next four to eight weeks.” (The record indicated that Blackmon jogged three to five miles per day before the September 8, 1998, incident.) With Dr. Jackson’s approval, Blackmon not only resumed full-time employment with Safe-co of 40 or more hours per week, making equal to or more in wages than he made before the September 8, 1998, incident, he also began weight training and resumed jogging three to five miles each day. Dr. Jackson also testified that he saw Blackmon for the last time on August 29, 2000, and that Blackmon told Dr. Jackson at that time that "[h]e was feeling great. He was jogging and doing some weight training, and was not having any symptoms with that. Hasn't had any heart symptoms. By that time he said he was working 40 or 50 hours per week.”


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    Teresa Darlene WOODS v. Jimmy Wayne WOODS, Sr.
    2010016.
    Court of Civil Appeals of Alabama.
    June 14, 2002.
    Rehearing Denied Sept. 6, 2002.
    Certiorari Denied Dec. 20, 2002 Alabama Supreme Court 1012342.

      Pete J. Valias, Mobile, for appellant.
    Claude D. Boone, Mobile, for appellee.
   THOMPSON, Judge.

Teresa Darlene Woods (“the wife”) and Jimmy Wayne Woods, Sr. (“the husband”), were divorced by a June 21, 1999, judgment of the trial court; the divorce judgment incorporated an agreement reached by the parties. At the time of the divorce, both of the parties’ children were minors.

In its June 21, 1999, divorce judgment, the trial court awarded the wife custody of the parties’ minor daughter and ordered the husband to pay child support. The divorce judgment provided, in relevant part, that the wife would have exclusive use and possession of the marital home until the parties’ children reached the age of majority and that the marital home would then be sold; that the husband would be responsible for paying the mortgage indebtedness until the home was sold; and that the parties would equally divide any equity derived from the sale of the marital home. The divorce judgment also required the husband to be responsible for all but one of the parties’ marital debts, to pay the wife periodic alimony, and to maintain a health insurance policy on the wife for two years after the divorce.

On March 28, 2001, the husband petitioned to modify the divorce judgment; in that petition, the husband sought, among other things, a termination of his periodic-alimony obligation, an order requiring the sale of the marital residence, and an award of an attorney fee. In addition, the husband sought a reduction of his child-support obligation because the parties’ son had reached the age of majority on October 21, 1999. The wife answered and sought to have the husband held in contempt regarding property-division issues that are not relevant to this appeal.

The parties reached an agreement regarding some of the issues in dispute between them. On June 7, 2001, the trial court entered an order incorporating the terms of that agreement, but setting for a later date its consideration of the issues of child support and whether the marital home should be sold. In its June 7, 2001, order, the trial court specifically stated that “the question of adjusted child support, including arrearages, if any, shall be determined by the Court as of November 1,1999.”

On July 2, 2001, the wife filed a motion, purportedly pursuant to Rule 59(e), Ala. R. Civ. P., seeking to set aside the June 7, 2001, nonfinal order. In that motion, the wife argued that her attorney was “without authority” to agree to have the issue of child support determined as of November 1, 1999. The wife acknowledged that, in consideration for that agreement upon which the trial court’s June 7, 2001, order was based, the husband had agreed to assume responsibility for the payments on her automobile loan and for insurance for her automobile.

On August 23, 2001, the trial court entered a judgment in which, among other things, it modified the husband’s child-support obligation and ordered that the marital home be sold. The wife filed a postjudgment motion; the trial court denied that motion. The wife appealed.

The parties’ son reached the age of majority in October 1999. The husband had paid $1,006 per month in child support for the parties’ two children from the time the parties were divorced in July 1999 until May 2000. In May 2000, the husband unilaterally reduced his child-support payments and began paying the wife $503 per month in child support for the parties’ minor daughter. The trial court determined that, pursuant to the Rule 32, Ala. R. Jud. Admin., Child Support Guidelines, the father’s child-support obligation for one child should have been $638 per month.

The husband claimed to be entitled to a credit for child support he allegedly overpaid in support for the son between November 1, 1999, the month after the son reached the age of majority, and May 2000, when the husband unilaterally reduced his child-support payments. At the August 13, 2001, modification hearing, the wife’s attorney admitted that he had agreed, for purposes of the June 7, 2001, order, that the husband’s obligation for child support for the parties’ son should terminate as of November 1, 1999. However, the wife’s attorney argued that he was without authority to enter into that agreement. The wife’s attorney contended that the trial court should set aside its June 7, 2001, order and calculate the husband’s child-support obligation for the parties’ son by including installments for each month between October 1999 and March 28, 2001, the date the husband filed his petition to modify the divorce judgment.

The other primary issue in dispute between the parties was the division of any equity upon the sale of the marital home. At the time of their divorce, the parties’ owned 7.1 acres of land; the marital home is located on that property. In its June 1999 divorce judgment, the trial court awarded the wife the marital home and one acre of land upon which the house was situated. The marital home plus the one acre of land was subject to a mortgage indebtedness totaling approximately $92,000; the husband testified that, at the time of their June 1999 divorce, the parties had approximately $2,000 in equity in that property.

In its divorce judgment, the trial court awarded the husband the remaining 6.1 acres of land adjacent to the marital home. The record on appeal does not clearly indicate whether that property was subject to a mortgage indebtedness, but it is clear that, at the time of the parties’ divorce, the 6.1 acres were not subject to the same mortgage as the marital home.

In August 2000, the husband refinanced the marital home, together with the 6.1 acres he received pursuant to the divorce judgment. The husband testified that the financing was arranged so that all of that property was subject to two mortgages. The wife testified that she first learned that the husband planned to refinance the marital home and the 7.1 acres when the appraiser arrived to value the property. The husband testified that the house and the total of 7.1 acres of land were appraised at approximately $134,000. The husband mortgaged all of that property for a total of $134,487. The husband testified that at the time of the modification hearing, he had no equity in the property that was subject to that mortgage indebtedness.

When he refinanced the mortgage on the marital home and the 7.1 acres, the husband used the proceeds of the two mortgages to repay the first mortgage on the marital home and the one acre of property. The husband testified that he used the excess funds to repay all of the debt for which the divorce judgment ordered him to be responsible. The husband also repaid the $2,220 balance on the credit-card debt the wife was ordered to pay under the terms of the parties’ divorce judgment.

The wife submitted into evidence the property descriptions contained in the two refinanced mortgages. The wife contends that that evidence establishes that the two mortgages are secured only by the marital home and the one acre of property on which it is located. The husband testified, however, that the mortgages referenced both the one acre on which the marital home was located and the additional 6.1 acres of property. The husband’s attorney argued to the trial court that the wife had subpoenaed only the mortgages on the marital home and that she had not sought to ascertain whether there was a similar mortgage secured by the additional 6.1 acres of property.

In April 2001, the wife vacated the marital home and moved to Arizona to live with her boyfriend. The parties’ minor daughter also moved to Arizona with the wife. The wife testified that the parties’ son remained in the marital home for one week after she moved to Arizona.

The husband testified that after the wife vacated the marital home, he went to the home, apparently to prepare it for sale. The husband testified that the marital home had been damaged and that it was very messy and littered with trash. The husband testified that many holes had been punched in the walls of the home, that several door facings were damaged, and that the carpet was stained. The husband submitted into evidence photographs of the damage to the home; he also submitted photographs depicting a large amount of trash littering the floors of the vacant house. The husband testified that the wife had also left a great deal of bagged garbage in the backyard; he submitted photographs of that bagged garbage and of the home’s backyard, which was littered with trash. The husband testified that he estimated the cost of repairing the damage to the marital home to be approximately $8,000.

The wife testified that the marital home had been clean when she vacated it, but she acknowledged that she had left garbage in the backyard. She testified that she was unable to dispose of the garbage in the backyard because she did not have a vehicle with which to haul it away. The wife testified that either she or the husband could repair the damaged walls. The wife testified that the parties’ son and daughter had caused most of the damage in the house, and that, therefore, she wanted to divide the cost of repairs to the house with the husband. The husband testified in rebuttal that because he did not cause the damage to the house, he objected to sharing the cost of repairing that damage.

In its judgment, the trial court ordered the husband to pay $688 per month in child support for the parties’ daughter and awarded the husband a $506 credit for an overpayment of child support. The trial court determined the amount of the credit by calculating the husband’s $638 per month child-support obligation from November 1, 1999, and offsetting that amount by the amount of child support the husband had actually paid. The trial court also ordered that the marital home be sold, that the cost of any necessary repairs be deducted from the wife’s equity in the home, and that any remaining equity be evenly divided between the parties upon the sale of the marital home.

On appeal, the wife argues that the trial court erred in refusing to hold the husband in contempt with regard to his refinancing of the indebtedness on the marital home and for his failure to provide her health-insurance coverage. In her pleading filed in the trial court, the wife sought to have the husband held in contempt for allegedly wrongfully taking possession of the wife’s automobile; the parties reached an agreement with regard to that issue, and the trial court’s June 7, 2001, order incorporated the terms of that agreement. The record contains no other pleading in which the wife sought to have the husband held in contempt with regard to any other issue. It appears that the wife first raised the issue of contempt as to these two matters in her postjudgment motion.

Neither party addresses whether the wife raises these two issues for the first time on appeal or whether the two issues may be deemed to have been tried by the implied consent of the parties. Pursuant to Rule 15(b), Ala. R. Civ. P., an issue tried by the implied consent of the parties shall be treated as if it were raised in a party’s pleadings. However, where “the evidence on [an] issue [a party claims was tried by implied consent] is also relevant to the issue expressly litigated, there is nothing to indicate that a new issue was raised at trial, and the pleadings are not deemed amended under Rule 15(b).” McCollum v. Reeves, 521 So.2d 13, 17 (Ala.1987) (citation omitted). Although it is not clear in this case that the wife’s issues were tried by the implied consent of the parties, the husband has not objected to the use of that evidence nor has he argued that he would be prejudiced by the consideration of that evidence. See Bowker v. Willis, 580 So.2d 1333, 1335-36 (Ala.1991) (a party may object to the consideration of issues not framed by the pleadings and must show that he would be prejudiced by the consideration of those issues). Therefore, out of an abundance of caution, we will address the issues as framed by the wife in her brief on appeal.

“ ‘[W]hether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, [the appellate] court will affirm.’ Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994).”

Cavender v. State Mut. Ins. Co., 748 So.2d 863, 868 (Ala.1999).

In Watson v. Watson, 696 So.2d 1071 (Ala.Civ.App.1996), the husband sought to have the wife held in contempt for failing to comply with an order that she return a rifle scope to him. The wife testified that she did not have the rifle scope and that she did not know where it was located. The trial court refused to find the wife in contempt, and the husband appealed. This court affirmed, stating that because the trial court reached its decision after receiving ore tenus evidence, its determination whether the wife was in contempt was entitled to a presumption of correctness on appeal. Watson v. Watson, 696 So.2d at 1073. This court held that because the evidence was in dispute, it could not say that the trial court’s judgment as to the issue of contempt was plainly or palpably wrong. Watson v. Watson, 696 So.2d at 1074.

The wife, in her brief on appeal, asserts that she submitted documents indicating that the husband had not mortgaged the 6.1acres together with the marital home; therefore, she contends that the $134,000 mortgage on the property afforded the husband a great deal of equity in the home, and that she was entitled to one-half of the equity. The wife argues that the trial court could not disregard the documentary evidence and consider the husband’s testimony that the mortgage indebtedness was secured by the marital home and the total of 7.1 acres of land. We do not agree. Only a portion of the mortgage documents are included in the record on appeal; neither party submitted any mortgage documents pertaining to the 6.1acres. The husband testified that the 6.1acres also secured the two refinanced mortgages, and the wife did not present evidence to dispute that testimony. Thus, the wife has not presented evidence in support of her assertion that the husband “misled” the court in testifying that the mortgages were secured by both the marital property and by the 6.1 acres he was awarded in the divorce judgment. The evidence supports a conclusion that the marital home and the 7.1 acres of property secured the mortgage indebtedness; thus, the evidence also supports a conclusion that the husband did not obtain additional equity in the marital home when he refinanced the home plus the surrounding 7.1 acres of land. See Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996) (“in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support is judgment, unless such findings would be clearly erroneous”).

As part of her argument on this issue, the wife contends that the husband, in refinancing the marital home, intentionally deprived her of her equity in the marital home. However, it is undisputed that the parties, at the time of their divorce, had approximately $2,000 in equity in the marital home; the wife’s one-half of that amount would result in an award to her of $1,000 in equity. When he refinanced the marital home one year after the parties’ divorce, the husband repaid the wife’s credit-card indebtedness of $2,220, an amount that exceeded her portion of the equity in the marital home.

Further, the evidence supports a conclusion that the wife badly damaged the marital residence before she vacated it. The trial court ordered that the cost of repairing that damage be deducted from the wife’s equity in the home; the judgment then specifies that, after the deduction of the cost of those repairs from the wife’s equity, any remaining equity is to be equally divided between thé parties. Given the facts of this case, we cannot say that the trial court was plainly and palpably wrong in refusing to find the husband in contempt with regard to his refinancing of the indebtedness secured by the marital home. See Watson v. Watson, supra.

The wife also argues that the trial court should have held the husband in contempt for his failure to provide her health-insurance coverage. The divorce judgment required that the husband provide the wife with health-insurance coverage for two years. The husband testified that he provided health-insurance coverage for the wife for one year and eight months. The husband testified that when he remarried, his health-insurance provider required that the wife be covered under the “COBRA” health-insurance plan. The husband testified that he attempted to have the wife covered under the COBRA plan, but that the wife did not complete and return all of the necessary paperwork for that plan; he also stated that the wife never forwarded any bill for coverage under that plan to him. The wife disputed that testimony and stated that she had completed the required paperwork and returned it to the husband. Thus, the testimony as to this issue was in conflict. “Whether a party is in contempt of court or has failed to abide by the provisions of a divorce [judgment] is a question committed to the sound discretion of the trial court.” Anonymous v. Anonymous, 620 So.2d 43, 45 (Ala.Civ.App.1993). Given the conflict in the evidence on this issue, we cannot say that trial court erred in not finding the husband in contempt with regard to his failure to provide the wife four months of health-insurance benefits. Watson v. Watson, supra; Anonymous v. Anonymous, supra.

The wife next argues that the trial court erred in refusing to include certain amounts in its determination of the husband’s gross income for the purpose of calculating the husband’s child-support obligation. It is undisputed that the cost to the husband of his employer-provided health insurance is $121 per month. The husband’s employer pays an additional $458 per month to provide that health-insurance coverage. The wife contends that the $458 per month the employer pays for the husband’s health-insurance coverage should be included in the calculation of the husband’s gross income.

The wife has cited no authority that would establish that the portion of health-insurance coverage paid by a parent’s employer should be included as income to that parent for the purposes of calculating child support. The Rule 32, Aa. R. Jud. Admin., Child Support Guidelines provide that in calculating a parent’s gross income for the purpose of calculating child support, the parent’s income “from any source” must be considered. Rule 32(B)(2)(a), Aa. R. Jud. Admin. Further, “[e]xpense reimbursements or in-kind payments” are also to be considered as “other income” in determining a parent’s gross income. Rule 32(B)(4), Aa. R. Jud. Admin. The employer does not report the amount it pays to provide the husband health-insurance coverage as income to the husband. Further, the record contains no evidence indicating that that amount constitutes an “expense reimbursement or in-kind payment” to the husband. See Rule 32(B)(4). We cannot agree with the wife’s argument that the $458 per month the husband’s employer pays for his health-insurance coverage should be attributed to the husband as income for the purpose of calculating the husband’s child-support obligation.

The wife also argues that the trial court erred in determining whether an arrear-age existed in the husband’s child-support obligation for the parties’ son. In exchange for the husband’s agreement to take over the payment of the note and the insurance on the wife’s automobile the wife agreed that the husband’s child-support obligation for the parties’ son be calculated from November 1999, the month after the son reached the age of majority; the trial court incorporated the terms of that agreement in its June 7, 2001, order. In a motion to set aside the June 7, 2001, order, and again at the modification hearing, the wife argued that neither she nor her attorney could waive any child-support payments that had accrued after the child reached the age of majority but before the husband filed his March 28, 2001, petition to modify. The trial court refused to set aside its June 7, 2001, order.

We note that the divorce judgment required the husband to pay $1,006 per month for both children, rather than specifying an amount of support for each child; therefore, one child’s obtaining the age of majority did not work to automatically terminate the husband’s child-support obligation. State ex rel. Dep’t of Human Res. v. Curran, 716 So.2d 1196, 1197 (Ala.Civ.App.1997). Child-support payments that mature or become due before the filing of a petition to modify are not modifiable. Ex parte State ex rel. Lamon, 702 So.2d 449 (Ala.1997). A child-support obligation may be modified only as to installments that accrue after the filing of a petition to modify the child-support obligation. Rule 32(A)(3)(a), Ala. R. Jud. Admin. See also Stinson v. Stinson, 729 So.2d 864 (Ala.Civ.App.1998) (affirming a judgment terminating a noncustodial parent’s obligation to pay child support as of the date of the filing of the petition to modify, where the child reached the age of majority approximately 10 months before the noncustodial parent filed his petition to modify). We must conclude that the trial court erred in refusing to set aside its June 7, 2001, order, and that the husband’s child-support obligation for the son and whether any arrearage existed must be determined by calculating the amounts of child support due until the date of the husband’s petition to modify his child-support obligation. We must reverse as to this issue and remand for further proceedings consistent with this opinion.

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

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: CRAWLEY, Judge. CRAWLEY, Judge.

text:
    GUARANTY PEST CONTROL, INC. v. James BUSH and Helen Bush.
    2001293.
    Court of Civil Appeals of Alabama.
    June 28, 2002.
    Opinion on Return to Remand Dec. 30, 2002.

      Gregory D. Crosslin, Charles W. Reed, Jr., and Benjamin H. Farrow of Crosslin, Slaten & O’Connor, P.C., Montgomery, for appellant.
    Anthony B. Johnson of Heliums & Johnson, L.L.C., Centreville, for appellees.
   CRAWLEY, Judge.

James Bush and Helen Bush sued Guaranty Pest Control, Inc. (“Guaranty”), in the Bibb Circuit Court. Their three-count complaint sought an award of damages on claims of negligence, breach of contract, and fraud. The case was tried before a jury between April 30, 2001, and May 2, 2001. During that trial, Guaranty filed motions for a judgment as a matter of law (“JML”) at the close of the Bushes’ evidence and at the close of all the evidence; those motions were denied by the trial court. On May 2, 2001, the jury returned a verdict in favor of the Bushes, assessing compensatory damages of $69,020 and punitive damages of $79,166.66, and the trial court thereafter entered a judgment on that verdict.

On May 10, 2001, Guaranty renewed its motion for a JML, pursuant to Rule 50(b), Ala. R. Civ. P., and filed a motion for a new trial or for a remittitur, pursuant to Rule 59, Ala. R. Civ. P. In its Rule 59 motion, Guaranty specifically challenged the verdict on the grounds that the award of punitive damages was excessive under the principles set forth in § 6-11-20 et seq., Ala.Code 1975; BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 184 L.Ed.2d 809 (1996), Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989). The trial court referred the case to mediation, which proved unsuccessful, and then held a hearing on Guaranty’s postjudgment motions. However, the trial court did not enter an order granting or denying those post-judgment motions, and they were denied on August 8, 2001, 90 days after their filing, pursuant to Rule 59.1, Ala. R. Civ. P. Guaranty appealed from the denial of its postjudgment motions; the Alabama Supreme Court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

On appeal, Guaranty, citing Hammond, supra, and Love v. Johnson, 775 So.2d 127 (Ala.2000), contends that the trial court erred in allowing its Rule 59 motion challenging the excessiveness of the trial court’s punitive-damages award to be automatically denied under Rule 59.1 by the lapse of time. Guaranty argues that the trial court should have stated reasons why the punitive-damages award should or should not be disturbed.

We conclude that this case is procedurally indistinguishable from Love. In Love, the plaintiff brought a wrongful-death action against the defendant and prevailed on that claim at trial. The jury assessed the plaintiffs damages at $150,000, and a judgment was entered on that verdict; however, the trial court failed to rule on the defendant’s subsequent motion for a remittitur. The Alabama Supreme Court held that the trial court erred in failing to rule on the motion:

“The defendant correctly argues that the trial judge erred in allowing the motion for a remittitur, a motion challenging the jury’s award as excessive, to be denied without providing a statement of the reasons for denial. We remand this case for the trial court to enter an order stating the reasons supporting its denial of the motion for a remittitur. See Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986). In Hammond, this Court required that a trial court ‘reflect in the record the reasons for interfering with a jury verdict, or refusing to do so, on the grounds of exces-siveness of the damages.’ 493 So.2d at 1379; see also ALFA Mut. Ins. Co. v. Brewton, 554 So.2d 953 (Ala.1989). In Hammond, this Court stated the reason for the requirement:
“ ‘[T]he trial judge is better positioned to decide whether the verdict is ... flawed [as excessive]. He has the advantage of observing all of the parties to the trial — plaintiff and defendant and their respective attorneys, as well as the jury and its reaction to all of the others. There are many facets of a trial that can never be captured in a record, so that the appellate courts are at a special disadvantage when they are called upon to review [a] trial [court’s] action in this sensitive area
493 So.2d at 1378-79.
“On remand, the trial court is directed to enter an order in compliance with Hammond, and to file a return with this Court within 56 days after the release of this opinion.”

775 So.2d at 127-28. The Supreme Court, in so remanding, “expressed] no view ... on the substantive issue whether the defendant was entitled to a remittitur,” and cautioned that its remand “should not be construed by the trial court or the parties as any expression of [its] views on that issue.” Id. at 128.

Love was decided by the Alabama Supreme Court in 2000, and we are bound by it. See Ala.Code 1975, § 12-3-16. As the Bushes note, the Alabama Supreme Court, since Love was decided, has altered the substantive standard of appellate review of awards of punitive damages so that no presumption of correctness attaches to such an award. See Acceptance Ins. Co. v. Brown, 832 So.2d 1 (Ala.2001). However, despite the Bushes’ arguments to the contrary, we cannot conclude that Acceptance Insurance altered the procedural requirements that apply to judicial consideration of excessiveness challenges to punitive-damages awards. Indeed, Acceptance Insurance itself made clear that the trial court in that case had “stated its reasons for ordering a remittitur of the punitive-damages award, as it [wajs required to do by Green Oil ... and Hammond.” 832 So.2d at 23 (emphasis added).

The Supreme Court in Love remanded the case before it, and we remand this cause to the trial court. The trial court is directed to enter an order in compliance with Hammond and to file a return with this court within 56 days after the release of this opinion. See Love, 775 So.2d at 128. When the trial court files its return in this court, Guaranty will have 14 days to file a supplemental brief to argue its positions, if it so chooses; the Bushes will then have 7 days in which to respond, and Guaranty will then have 7 days to file a reply brief. See Love, 775 So.2d at 128. However, as the Supreme Court did in Love, we do not reach the question whether the defendant was entitled to a remittitur, and our remand should not be interpreted as any expression of the views of this court on that substantive issue.

REMANDED WITH INSTRUCTIONS.

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

On Return from Remand.

CRAWLEY, Judge.

On June 28, 2002, this court directed the trial court to enter an order in compliance with Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and to file a return with this court. The trial court has complied with the mandate of this court by entering an order declining to remit the punitive-damages award in this case and specifying its reasons, and the parties have filed supplemental briefs in response to the

trial court’s ruling. We therefore turn to the other issues Guaranty raises on appeal, which include (1) whether the jury’s verdict holding Guaranty liable on the Bushes’ claims is sufficiently supported by the evidence; (2) whether the jury’s compensatory-damages award is excessive; (3) whether the jury’s punitive-damages award is sufficiently supported by the evidence; and (4) whether the jury’s punitive-damages award is excessive.

The first of these issues, whether there was sufficient evidence to support liability on the Bushes’ claims, was raised in the trial court via Guaranty’s motions for a judgment as a matter of law (“JML”) under subsections (a) and (b) of Rule 50, Ala. R. Civ. P. In reviewing the propriety of a trial court’s judgment as to such motions, we are governed by the following principles:

“ ‘The standard of review applicable to a ruling on a motion for [a JML] is identical to the standard used by the trial court in granting or denying [that] motion. Thus, in reviewing the trial court’s ruling on the motion, we review the evidence in a light most favorable to the nonmovant, and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.
“ ‘... In ruling on a motion for a [JML], the trial court is called upon to determine whether the evidence was sufficient to submit a question of fact to the jury; for the court to determine that it was, there must have been “substantial evidence” before the jury to create a question of fact. “Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ ”

Congress Life Ins. Co. v. Barstow, 799 So.2d 931, 936 (Ala.2001) (quoting American Nat’l Fire Ins. Co. v. Hughes, 624 So.2d 1362,1366-67 (Ala.1993)).

Viewing the evidence in a light most favorable to the Bushes, we note the following pertinent facts. James Bush is a retired brick mason who owns, with his wife Helen, a home in Bibb County in which the two of them have lived since the late 1970s. The Bushes began construction work on the house in 1976 or 1977.

In April 1979, before the house was fully completed, a representative of Guaranty contacted the Bushes and offered to provide a termite treatment for the house for $200. On or about April 24, 1979, Helen Bush signed a contract form authorizing Guaranty to treat the Bushes’ house for subterranean termites and agreeing to pay Guaranty $200 in four installments. That work order provided that a Guaranty representative would remove all trash and debris containing cellulose from the house’s crawl area, would remove all visible termite tunnels, would drill the brick veneer foundation walls “every 16-24 inches” and treat them with “termite chemical” (ie., termiticide), would inject termiticide around the outside perimeter of the house, and would “trench” the soil underneath piers and supports and treat that soil with termiticide. The contract further provided that Guaranty would “reinspect the property within one year of initial service,” and stated that should reinfestation occur within that one-year period, Guaranty would “re-inspect and retreat the [house] at no additional cost where an active infestation” was confirmed. Guaranty also agreed, for an additional yearly sum of $30, to reinspect the property and to extend its contract obligations on a year-to-year basis.

A representative of Guaranty then undertook to inspect the Bushes’ property and to treat the property for subterranean termites; that representative reported no existing termite damage to, or termite infestations in or near, the Bushes’ uncompleted house. On April 26, 1979, two days after his wife had signed the contract, James Bush signed a work-order form in which he acknowledged satisfactory completion of the treatment specified by Guaranty in the contract; he subsequently paid Guaranty for the work in the installments specified in the contract. Guaranty issued the Bushes a certificate, labeled “Bonded Guarantee,” in which it agreed to provide general termite treatment and to inspect that work for a one-year period; to retreat termite reinfestations “[d]uring the life of the contract and extensions thereto”; and to renew the contract for the yearly payment of $30. At the time of Guaranty’s work on the Bushes’ house in 1979, all of the brick had been laid and the exterior of the house had been finished; only the upstairs portion of the house remained to be completed.

Over the course of the following 20 years, the Bushes paid Guaranty the amounts specified in the April 24, 1979, contract form and the April 30, 1979, “bonded guarantee” form to extend Guaranty’s inspection and retreatment obligations. During that period, a representative of Guaranty made an annual inspection of the Bushes’ house, and the Bushes paid Guaranty’s bill each year for that service. However, in October 1998, the Bushes’ daughter noticed that one of the beams near the basement fireplace had dropped at least one and a half inches. Upon being informed of the problem, James Bush dismantled some of the fireplace’s hearth, the mantle, and the surrounding rock; he discovered an area of water damage and found termites in a wall near the house’s carport.

James Bush then initiated repairs to the house, including dismantling the house’s brick chimney, and contacted his homeowner’s insurer, which engaged Crawford & Company, an independent adjusting firm, to investigate the claim. A number of photographs taken by Crawford & Company personnel in November 1998 and admitted into evidence at trial show no visible roof damage to the Bushes’ house, although termite damage is visible in the framing behind where the chimney had been located and on the corner of the Bushes’ garage. James Bush also contacted Guaranty and reported that his house was infested with live termites, after which Guaranty sent an exterminator to retreat the house on two different occasions.

At trial, James Bush testified that he and his son-in-law had replaced an approximately 20-foot segment of the downstairs wall of the house and 15 feet of upstairs wall; he testified that he had worked for a year and a half, for between three and four hours per day, to restore the house. James Bush estimated that his out-of-pocket repair expenses had amounted to $12,500 and opined that the house, which he testified had been worth between $100,000 and $110,000 before the discovery of the termite damage, was worth closer to $80,000 or $90,000. Moreover, James Bush testified that the discovery of termites and the damage to his house had caused him to worry, that he had complained to a doctor about stress related to the termite damage, that he still worries that the house has termites, that the termite damage has caused him and his family aggravation, and that his family had not been able to celebrate Christmas in its normal fashion for two years after the termite damage was discovered. Helen Bush also testified to having suffered emotional distress over the termite infestation and the resulting damage.

Although James Bush testified that Guaranty had represented to him in 1979 that it had “treated” the house, the Bushes adduced evidence tending to cast doubt on the truth of that statement. An Alabama Department of Agriculture inspector, John Belcher, inspected the Bushes’ house in February 1999. His report of that inspection indicated that he found termite damage adjacent to the carport and discovered that the damage around the fireplace had been repaired before his inspection. Bel-cher’s report indicates that termite-treatment holes drilled in the brick veneer of the foundation did not penetrate the hollow block foundation in the area of the floating slab or the carport; the report also notes that the carport slab, the basement slab, and the foundation block beneath the storage room had not been drilled, and that the patio slab did not appear to have been drilled.

In his deposition (the pertinent portion of which was disclosed to the jury), Bel-cher testified that Guaranty, in 1979, should have drilled in the areas he identified in his report unless the consumer (i.e., the Bushes) waived the minimum applicable standards, and that failing to drill in those areas would have cause the treatment not to have met applicable state regulations governing termite treatment. Moreover, Belcher testified that a qualified technician trained and knowledgeable about the state rules and regulations would have noticed the absence of any drilling.

The Bushes claimed in their complaint that Guaranty had breached a contract under which it was to treat and inspect their house; that Guaranty had negligently failed to treat and inspect the Bushes’ house; and that Guaranty had negligently, wantonly, or recklessly misrepresented material facts regarding its treatment and inspection of the Bushes’ house. The trial court instructed the jury on principles of contract and negligence liability, as well as liability for reckless misrepresentations; the jury returned a verdict finding Guaranty liable to the Bushes on each theory, and Guaranty’s Rule 59, Ala. R. Civ. P., motion for a new trial was denied by operation of law because the trial court did not rule on the motion within 90 days of its filing.

Although Guaranty contends that there was not substantial evidence presented to support the Bushes’ negligence and breach-of-contract claims, our review of the record, in view of the attendant presumptions in favor of the verdict, convinces us otherwise. With respect to the breach-of-contract claim, the jury could have determined from the evidence that the Bushes entered into a contract with Guaranty pursuant to which the Bushes would pay $200 and Guaranty would undertake a duty to treat the Bushes’ house, including drilling the brick veneer foundation walls and treating them with termiti-cide. Although there is no dispute that the Bushes paid Guaranty, Belcher’s report and testimony supports the propositions that Guaranty, in 1979, did not drill far enough into the brick veneer to create a chemical barrier in all subterranean voids below the Bushes’ house and thereby did not comply with pertinent state regulations regarding termite treatment. Moreover, there was evidence from which the jury could have properly inferred that Guaranty should have discovered its omissions in its annual inspections, and that the Bushes’ house ultimately suffered damage from subterranean termites, i.e., the very condition that the Bushes had contracted with Guaranty to prevent.

Guaranty also challenges the sufficiency of the evidence to support the finding of liability for reckless misrepresentation. Although the record reveals that the trial court was hesitant to deny Guaranty’s motion for a JML as to misrepresentation and to instruct the jury on that theory, it ultimately concluded that there was substantial evidence to support the Bushes’ claim. The Guaranty contract form signed by Helen Bush on April 24, 1979, indicated that Guaranty’s work order was attached “[f]or your assurance of professional and quality workmanship,” and the work order includes a specification for drilling the brick veneer foundation every 16 to 24 inches and for treating those places with termite chemicals. Moreover, the “guaranteed contract” issued by Guaranty on April 30, 1979, recited that the Bushes had agreed to pay Guaranty $200 “[i]n consideration of GUARANTY[’s] ... thoroughly spraying and treating underneath” their house. As discussed above, however, Bel-cher’s testimony directly impeached the “thoroughness” of Guaranty’s treatment in 1979, and James Bush testified that in reliance upon the representation that the house had been thoroughly treated, he had renewed his Guaranty termite bond each year for 20 years and did not hire another company to perform termite inspections or to treat any infestation during that period. Guaranty detected no infestation. From that evidence, the jury could properly conclude, as it did, that the Bushes relied on misrepresentations made by Guaranty regarding its treatment and inspections and that the subsequent termite damage necessarily flowed from the Bushes’ detrimental reliance. We therefore affirm the trial court’s denial of Guaranty’s JML motions to the extent that they attacked the legal sufficiency of the evidence to support the Bushes’ claims.

With respect to the second issue identified - above, i.e., whether the jury’s award of $69,020 in compensatory damages is excessive, we note that Guaranty failed to raise that issue in either of its post-judgment motions; its trial counsel (which was not its appellate counsel) challenged only the award of punitive damages as excessive. We therefore agree with the Bushes that that issue has not been preserved for appellate review, and we preter-mit consideration of that issue on the authority of ConAgra, Inc. v. Turner, 776 So.2d 792 (Ala.2000). In ConAgra, our Supreme Court held that a party challenging a compensatory-damages award as excessive must specifically raise that issue in the trial court:

“First, ConAgra contends that the jury’s award of $50,000 in compensatory damages is excessive. However, because ConAgra failed to challenge the exces-siveness of the compensatory-damages award specifically as a ground for a new trial, this issue is procedurally barred. State v. Ferguson, 269 Ala. 44, 45, 110 So.2d 280 (1959) (‘The question of the excessiveness of the jury’s verdict will not be considered or determined on appeal unless such question is first presented to the lower court which is usually done by a motion for a new trial. The motion must specifically challenge or question the amount of the verdict as being excessive.’ (Emphasis added.)) See also § 12-22-71, Ala.Code 1975, Peete v. Blackwell, 504 So.2d 222 (Ala.1986), and Feazell v. Campbell, 358 So.2d 1017 (Ala.1978).”

776 So.2d at 794.

We next consider Guaranty’s arguments concerning the sufficiency of the evidence with respect to the jury’s award of punitive damages. While “there is no such thing as a claim of punitive damages” under Alabama law, “there are claims on which our law authorizes the trier of fact to impose punitive damages if certain wrongfulness is proved by a sufficient weight of the evidence.” Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala.1999). In this case, the Bushes sought an award of punitive damages on their reckless-misrepresentation claim, i.e., the claim that the trial court was most reluctant to submit to the jury. Ultimately, the trial court decided to submit the reckless-misrepresentation claim to the jury, over Guaranty’s objection.

The trial court indicated that it would give instruction number 11.03 of the Alabama Pattern Jury Instructions: Civil, which is based upon § 6-11-20, Ala.Code 1975, and noted that that pattern instruction called for a trial court to “read only those portions of the charge on which evidence is submitted.” In giving that instruction, the trial court informed the jury that for the Bushes to recover punitive damages, they must prove by “clear and convincing evidence that [Guaranty] consciously or deliberately engaged in fraud.” The trial court also stated that “fraud means an intentional misrepresentation of a material fact the concealing party had a duty to disclose which was committed with the intention on the part of the defendant [of] thereby depriving a person or entity of property or legal rights or otherwise causing injury” (emphasis added). Although Guaranty objected to the punitive-damages instruction, the Bushes did not. The jury-verdict form directed the jury to circle either “yes” or “no” depending on whether it decided to award punitive damages on that claim. After deliberating, the jury returned a verdict in favor of the Bushes on the “punitive-damages” aspect of the reckless-misrepresentation claim and awarded punitive damages of $79,166.66. The trial court denied postjudgment relief as to that award, and on remand from this court entered an order concluding that the punitive-damages award was not excessive.

In enacting § 6-11-20, the Legislature determined that punitive damages “may not be awarded in any civil action” (except wrongful-death actions) unless “it is proven by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff.” Ala.Code 1975, § 6-ll-20(a). The Legislature defined “clear and convincing evidence” as “[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.” Section 6-11 — 20(b)(4). The Legislature also stated that “[p]roof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.” Id. Finally, the Legislature defined “fraud” as “[a]n intentional misrepresentation ... of a material fact the concealing party had a duty to disclose, which was gross, oppressive, or malicious and committed with the intention on the part of the defendant of thereby depriving a person or entity of property or legal rights or otherwise causing injury.” Ala.Code 1975, § 6 — 11— 20(b)(1) (emphasis added).

Although § 6-ll-20(a) permits an award of punitive damages where a defendant has consciously or deliberately engage in “oppression,” “wantonness,” or “malice” toward a plaintiff, the Bushes were content to have the jury charged only on “fraud.” Because, under Alabama law, unchallenged jury instructions become the law of the case, see Louisville & Nashville R.R. v. Atkins, 435 So.2d 1275 (Ala.1983), we will review only the sufficiency of the evidence in this case, in light of the standard adopted by the Legislature in § 6-11-20, Ala.Code 1975, to award punitive damages on the fraud theory on which the jury was instructed.

As we have discussed above, the Bushes presented evidence tending to show that Guaranty had represented to the Bushes, in its contract and bond forms, that it had treated the Bushes’ house and that it had done so “thoroughly.” The Bushes also presented evidence indicating that an examination of the property in 1999 indicated that Guaranty had not drilled, or drilled sufficiently, into several foundation areas beneath the Bushes’ house. However, the termite bond also recognized that termite infestation might occur in the future despite “thorough” treatment, and provided for reinspection and retreatment of the residence in that event. Guaranty adduced evidence that its file regarding the Bushes’ house indicated that it had treated the Bushes’ house with the appropriate amount of termitieide in 1979 for that type of house, and its manager testified that before 1998 the Bushes had made no complaints of termite damage.

Under the portions of § 6-11-20 incorporated into the trial court’s jury instructions, the Bushes were under a duty to adduce evidence supporting each element of their reckless misrepresentation claim, evidence “that, when weighed against evidence in opposition,” would produce “a firm conviction” that Guaranty “consciously or deliberately engaged” in an intentional misrepresentation of a material fact “with the intention ... of thereby depriving a person or entity of property or legal rights or otherwise causing injury” so as to give rise to a “high probability as to the correctness of the conclusion.” After a review of the evidence adduced by the parties, we cannot conclude that the Bushes met the heightened burden imposed by the Legislature for the imposition of punitive damages. Although we have already concluded that there is substantial evidence of a material misrepresentation upon which the Bushes reasonably relied and of damage that could ultimately have resulted from that reliance, so as to support a finding of liability, there was not clear and convincing evidence that Guaranty, in making misrepresentations that it had “thoroughly” treated and inspected the Bushes’ property, had any intent to deprive the Bushes of their property or legal rights or to otherwise cause them injury. See Thompson v. United Cos. Lending Corp., 699 So.2d 169, 176 (Ala.Civ.App.1997) (reversing a directed verdict as to a fraud claim stemming from a lender’s representations of “full” insurance coverage but affirming as to the punitive-damages issue, and noting the different standards of proof).

We therefore conclude that the Bushes’ evidence was insufficient under § 6-11-20 to warrant an award of punitive damages. That portion of the trial court’s judgment entered on the jury’s verdict awarding punitive damages to the Bushes is reversed, and the cause is remanded to the trial court for that court to vacate the punitive-damages award. In all other respects, the trial court’s judgment is affirmed.

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

THOMPSON and PITTMAN, JJ., concur.

YATES, P.J., concurs in the result.

      . Guaranty’s argument that the award of punitive damages is excessive is therefore pre-termitted.