author: BRIDGES, J., for the Court.

text:
    Sue Carol TYNES, Appellant, v. Ronald Price TYNES, Appellee.
    No. 2002-CA-01091-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.

      Glenn Louis White, Petal, attorney for appellant.
    David Alan Pumford, attorney for appel-lee.

      Before KING, P.J., BRIDGES, and LEE, JJ.
   BRIDGES, J., for the Court.

¶ 1. Sue and Ronald Tynes were married on November 2, 1975. Sue Tynes filed for a divorce on October 9, 2000. The parties consented to a divorce on the grounds of irreconcilable differences on January 30, 2002. On that same day, a hearing was conducted by the chancellor regarding issues of equitable distribution, alimony, and support. On May 13, 2002, the chancellor rendered an opinion to which Sue Tynes filed a motion to reconsider or for a new trial. This motion was denied and she now appeals to this Court.

STATEMENT OF THE ISSUES

I. WHETHER THE CHANCERY COURT ERRED IN FAILING TO AWARD ALIMONY TO SUE TYNES.

II. WHETHER THE CHANCERY COURT ERRED IN FAILING TO CONSIDER RONALD’S RETIREMENT AS MARITAL PROPERTY.

III. WHETHER THE CHANCERY COURT ERRED IN CONSIDERING RONALD’S PERSONAL INJURY SETTLEMENT AS NON-MARITAL PROPERTY.

IV. WHETHER THE CHANCERY COURT ERRED IN FAILING TO AWARD ATTORNEYS FEES TO SUE TYNES.

FACTS

¶ 2. Sue Carol Tynes (Sue) and Ronald Price Tynes (Ron) were married on November 2, 1975. Of their marriage, there are two children, Ronnie and Leslie. Starting in 1976, Ron began working as a trainman with Norfolk Southern Company. In 1997, Ron was severely injured on the job and lost his entire left leg as well as three fingers and became permanently disabled as a result of the accident. The next year, Ron entered into a settlement agreement with The Alabama Great Southern Railroad Company.

¶ 3. The couple separated in August 2000, and in October 2000, Sue filed for divorce, alleging fault grounds and irreconcilable differences. In January 2001, the parties filed a joint motion to dismiss the fault grounds and withdraw the pleading together with a consent to divorce on the ground of irreconcilable differences. The court entered an order dismissing the fault grounds, leaving the issues of equitable distribution, alimony, and support before the court.

¶ 4. A hearing was held on January 30, 2002, in regards to the division of property, alimony and support. The chancellor rendered his opinion on May 13, 2002. Sue then filed her motion to reconsider or for a new trial which was later denied by the court on June 5, 2002.

STANDARD OF REVIEW

■¶ 5. The standard of review employed by this Court in domestic relations cases is limited by the substantial evidence/manifest error rule.

This Court may reverse a chancellor’s findings of fact only when there is no substantial credible evidence in the record to justify his findings. Our scope of review in domestic relations matters is limited under the familiar rule that this Court will not disturb a chancellor’s findings unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard.

Jundoosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss.2002) (citations omitted).

ANALYSIS

I. WHETHER THE CHANCERY COURT ERRED IN FAILING TO AWARD ALIMONY TO SUE TYNES.

¶ 6. In the area of domestic relations, the division of marital assets is governed under the law as stated in Hemsley and Ferguson .

First, the character of the parties’ assets, marital or nonmarital, must be determined pursuant to Hemsley. The marital property is then equitably divided, employing the Ferguson factors as guidelines, in light of each parties’ non-marital property. If there are sufficient marital assets which, when equitably divided and considered with each spouse’s nonmarital assets, will adequately provide for both parties, no more need be done.

Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1995) (citations omitted).

¶ 7. Whether to award alimony is governed under the law as stated in Armstrong. The Mississippi Supreme Court stated that “alimony awards are within the discretion of the chancellor and his discretion will not be reversed on appeal unless the chancellor was manifestly in error in his finding of fact and abused his discretion. In the case of a claimed inadequacy or outright denial of alimony, we will interfere only where the decision is seen as so oppressive, unjust or grossly inadequate as to evidence an abuse of discretion.” Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993) (citations omitted). The factors to be considered by the chancellor in arriving at findings and entering judgment for alimony are as follows:

(1) The income and expenses of the parties;
(2) The health and earning capacity of the parties;
(3) The needs of each party;
(4) The obligations and assets of each party;
(5) The length of the marriage;
(6) The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
(7) The age of the parties;
(8) The standard of living of the parties, both during the marriage and at the time of the support determination;
(9) The tax consequences of the spousal support order;
(10) Fault or misconduct;
(11) Wasteful dissipation of assets by either party; or
(12) Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

Armstrong, 618 So.2d at 1280, citing Hammonds v. Hammonds, 597 So;2d 653, 655 (Miss.1992).

¶ 8. In his findings of facts and conclusions of law, the chancellor conducted a thorough analysis of all of the relevant Armstrong factors in this case. Upon reviewing the detailed analysis taken by the court of the position and needs of the parties, we find that the chancellor in no way abused his discretion in finding that Sue was not entitled to an award for alimony. Therefore, we find this issue is without merit.

II. WHETHER THE CHANCERY COURT ERRED IN FAILING TO CONSIDER RONALD’S RETIREMENT AS MARITAL PROPERTY.

¶ 9. When reviewing questions of equitable distribution, this Court looks to the chancellor’s application of the Ferguson factors. Ferguson, 639 So.2d at 928; see also Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1995); Hemsley v. Hems- ley, 639 So.2d 909, 914-15 (Miss.1994). In Ferguson, the Mississippi Supreme Court held, that when “attempting to effect an equitable distribution of marital property,” chancery courts should consider the following guidelines:

(1) Substantial contribution to the accumulation of property
a) direct or indirect economic contribution
b) contribution to stability and harmony of the marital relationship measured by quality, quantity of time spent on family duties and duration of marriage
c) contribution to the education, training or other accomplishment bearing on the earning power of spouse accumulating assets
(2) Degree to which each spouse has expanded, withdrawn, or otherwise disposed of marital assets and any prior distribution of assets.
(3) Market value and emotional value of assets subject to distribution.
(4) Value of assets not ordinarily absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift or by an individual spouse.
(5) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution.
(6) Extent to which property division may be utilized to eliminate periodic payments and other potential sources of friction.
(7) Needs of the parties.
(8)Any other factor which in equity should be- considered.

Ferguson, 639 So.2d at 928.

¶ 10. “The chancellor is not required to address each and every factor and may consider only the factors which he finds applicable to the marital property at issue.” Burnham-Steptoe v. Steptoe, 755 So.2d 1225, 1233(¶24) (Miss.Ct.App.1999) (citing Weathersby v. Weathersby, 693 So.2d 1348, 1354 (Miss.1997)).

¶ 11. In his findings of fact and conclusions of law, it is clear that the chancellor divided all of the property, including marital home, acreage in Jones County, a tractor, a Cessna 170, and personal items, in accordance with the Ferguson factors and applied established case law.

¶ 12. Sue claims that the chancellor erred in' failing to consider Ron’s retirement income as marital property. In her brief, Sue cites cases involving mostly pension plans and funds which can be subject to distribution upon divorce. The chancellor has discretion in the equitable distribution of marital property, to divide such property after consideration of the evidence, in a manner in accordance with Arthur v. Arthur, 691 So.2d 997, 1002-03 (Miss.1997) (citing Ferguson v. Ferguson, 639 So.2d 921, 928-30 (Miss.1994) and Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994)).

¶ 13. The record reflects that Sue will become eligible for a divorced spouse annuity from the U.S.A. Railroad Retirement Board upon her reaching sixty-two years of age by virtue of her marriage to Ron. The record also • reflects that Sue is a participant in the PERS state retirement system and that the chancellor declined to include this in the equitable distribution of marital property. There is also evidence that Sue cashed out an earlier state retirement plan; however, the reasons for doing so were not revealed to the lower court. Since the judge did not have the benefit of this information, his findings were brief but sufficient as the same concerns his reasoning for not awarding Sue any amount from Ron’s retirement benefits. Additionally, the record does not reveal when Sue may start receiving her retirement and the amount thereof, but it- is apparent that the judge took this into consideration and made adequate and sufficient provisions for Sue.

¶ 14. Given the evidence presented in the record sub judice, we find that the chancellor made distribution of the marital property in accordance with Ferguson and Arthur, and the evidence presented in the case and did not abuse his discretion, was not manifestly wrong, clearly erroneous, nor applied an erroneous legal standard. With this being said, this issue is without merit.

III. WHETHER THE CHANCERY COURT ERRED IN CONSIDERING RONALD’S PERSONAL INJURY SETTLEMENT AS NON-MARITAL PROPERTY.

¶ 15. Sue alleges that the chancellor erred when he failed to consider Ron’s personal injury settlement as non-marital property.

¶ 16. Stated again, a chancellor must classify marital assets in accordance with the criteria set forth in Ferguson. Ferguson, 639 So.2d at 928. In addition to the familiar Ferguson, Hemsley and Johnson criteria concerning classification of the marital estate and equitable distribution of marital assets, the Mississippi Supreme Court has set forth another standard governing personal injury proceeds obtained during the marriage. An approach, often referred to as the analytic approach, “involves an evaluation of the purpose of the compensation in the determination of the character of the award or settlement as marital or personal.” Tramel v. Tramel, 740 So.2d 286, 289(¶ 12) (Miss.1999). ‘We [the Mississippi Supreme Court] find under our scheme of equitable distribution that the analytic approach adopted by the Supreme Courts of Georgia and North Carolina is preferable. That portion of Regan v. Regan, 507 So.2d 54 (Miss.1987), and any other case, which are contrary to our holding today are hereby expressly overruled.” Tramel, 740 So.2d at 290(¶ 16).

¶ 17. The lines that a chancellor must draw, as difficult as they may be, are these:

(1) that portion of the proceeds allocable to compensation to the initially injured spouse for pain, suffering, and disfigurement should be awarded in its entirety to the injured spouse;
(2) that portion of the proceeds allocable to lost wages, lost earnings capacity, and medical and hospital expenses, to the extent those apply to the time period of the marriage, are marital assets and are to be divided according to equitable distribution principles; and
(3) that portion of the proceeds allocable to loss of consortium should be awarded in its entirety to the spouse who suffered that loss.

Tramel, 740 So.2d at 291(¶ 18).

¶ 18. Sue claims that the chancellor was in error for failing to view the award in light of whether any of it was attributable to loss of consortium. She focuses on the third prong of Tramel which states that the portion of the proceeds allocable to loss of consortium should be awarded in its entirety to the spouse who suffered that loss. However, Sue never pursued a loss of consortium claim or any other claim against the railroad; neither was she a party to Ron’s settlement agreement.

¶ 19. The record indicates that Ron received $47,688 for “advances,” money that had been paid to him in the period from the injury date until the settlement date, and also a settlement of $800,043 for his personal injuries, i.e., for pain, suffering, and disfigurement.

¶20. The chancellor, in his findings, concluded that there was nothing in the evidence that showed that Ron bore any medical expenses during the time period, so the inevitable conclusion must be that with the $47,000 plus so paid he was substantially overpaid for his “lost wages, lost earnings capacity.” The chancellor then allocated that item of the settlement payment as a marital asset, but by doing so required no apportionment thereof to Sue, for it was received and utilized as family income to the benefit of all family members who were living as a family unit until the final separation, which took place in August 2000, some twenty-six months after the settlement with the railroad company. The record does not reflect whether there was anything left of the $47,000 plus, but we can only assume that all of it was spent by the family during those twenty-six months. As for the cash payment to Ron at the settlement of $800,043 for his personal injuries, the chancellor found that this net settlement was a non-marital asset.

¶ 21. In reviewing the above facts, we find that the chancellor was not in error in finding that the remainder of Ron’s personal injury settlement proceeds were allocable to compensate him for pain, suffering, and disfigurement and were, therefore, outside of the marital estate and could not be subject to equitable distribution.

IV. WHETHER THE CHANCERY COURT ERRED IN FAILING TO AWARD ATTORNEY’S FEES TO SUE TYNES.

¶ 22. Sue claims the trial judge erred in not granting her attorney’s fees.

An award of attorney’s fees in divorce cases is left to the discretion of the chancellor, assuming he follows the appropriate standards. The award of court costs is likewise entrusted to the sound discretion of the chancellor. The Mississippi Supreme Court has held that when a party is able to pay attorney’s fees, an award of attorney’s fees is not appropriate. However, where the record shows an inability to pay and a disparity in relative financial positions of the parties, there is no error in awarding attorney’s fees. The supreme court has also held that consideration of the relative worth of the parties, standing alone, is insufficient. The record must reflect the requesting spouse’s inability to pay his or her own attorney’s fees.

Bates v. Bates, 755 So.2d 478, 482(¶ 11) (Miss.Ct.App.1999) (citations omitted).

¶ 23. In McKee v. McKee, the Mississippi Supreme Court established the criteria to be analyzed in determining whether to award attorney’s fees. McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). The fee depends on “consideration of, in addition to the financial ability of the parties, the skill and standing of the attorney employed, the nature of the case, and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the case, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.” Id. at 767.

¶24. In her appeal, Sue claims the chancellor’s failure to award attorney’s fees to her was error. In her brief, Sue stated that “at one time, she had $9,000 or $10,000 in certificates of deposit from an inheritance, but by the time of the trial, this had all been used m living expenses. However, this statement is unsupported by the record. The record reflects by Sue’s own testimony, that the amount of money she had in certificates of deposits was $19,000 and when questioned on direct examination whether any of these funds were left, Sue stated, “I think there’s probably $5,000 or $6,000 left.” The record also reflects that Sue makes a monthly income of $1,253 from her job with the school system.

¶25. We note that the chancellor did not review those factors described in McKee, in his opinion, simply opting to state his conclusion that “Sue had not met the burden of persuasive showing of her inability to pay her attorney’s fees and accordingly such award is denied.” Nonetheless, where this general statement may be found insufficient in other cases, we review the remainder of his opinion to find that there was ample evidence to make his conclusion that Sue was able to pay her attorney’s fees. We find such cumulative evaluation to be sufficient to support his finding, and we will not disturb it.

¶ 26. THE JUDGMENT OF THE FORREST COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ„ CONCUR.

      . Hemsley v. Hemsley, 639 So.2d 909 (Miss. 1994) and Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994).


source: Caselaw Access Project

author: MYERS, J., for the Court. GRIFFIS, J.,

license: Public Domain

text:
    ESTATE OF Eugenia W. CARTER, Appellant, v. PHILLIPS AND PHILLIPS CONSTRUCTION COMPANY, INC., Appellee.
    No. 2002-CA-01243-COA.
    Court of Appeals of Mississippi.
    Nov. 25, 2003.

      Orbie S. Craft, Brandon, attorney for appellant.
    David M. Sessums, Vicksburg, attorney for appellee.
   MYERS, J., for the Court.

¶ 1. Eugenia Carter was injured in a motor vehicle accident. Her estate asserts the accident was the result of negligence by Phillips and Phillips Construction Company, which was performing upkeep on the right of way of Highway 18 in Rankin County. Carter died before trial, and the suit was revived by her estate. After a trial in the Circuit Court of Rankin County, a jury returned a verdict for Phillips and Phillips. Carter’s estate appeals, asserting two issues:

I. DID THE COURT ERR IN FAILING TO SUSTAIN APPELLANT’S EVI-DENTIARY OBJECTIONS?

II. DID THE COURT ERR IN ENTERING JUDGMENT FOR APPELLEE AND IN FAILING TO GRANT APPELLANT A NEW TRIAL?

Facts

¶ 2. Eugenia Carter was traveling in the southbound lane of Highway 18 south of Brandon, Mississippi. She intended to make a left turn onto her driveway (known as Carter Place or Carter Road). Phillips and Phillips Construction Company (Phillips & Phillips) was performing upkeep on the right of way along Highway 18. On the day of the collision, Phillips & Phillips had set up a construction zone in the vicinity of Carter Place. Traffic was restricted to one lane while in the construction zone. A flagman was placed at each end of the construction zone.

¶ 3. Robert Burton, an officer with the Mississippi Highway Patrol, was traveling south on Highway 18 while responding to an emergency call. He came upon the construction zone, and was stopped by the flagman. The flagman flagged Burton into the northbound lane. Burton did so. When Burton arrived at the intersection with Carter Place, Carter turned left in front of him, and they collided, resulting in injury to Carter.

Legal Analysis

I. DID THE COURT ERR IN FAILING TO SUSTAIN APPELLANT’S EVI-DENTIARY OBJECTIONS?

¶ 4. This issue contests the admissibility of various pieces of evidence. We use an abuse of discretion standard when reviewing a trial court’s decision concerning the admissibility of evidence. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936(¶ 7) (Miss.2002).

A. Hearsay Evidence

¶ 5. Carter’s estate contends that the trial judge improperly allowed hearsay evidence from Officer Cecile Kazery of the Mississippi Department of Public Safety. As defined by Mississippi Rule of Evidence 801(c), ‘[hjearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The trial judge warned Kazery that she could not relate what people had told her, but she could testify to the results of her investigation. Such an instruction would properly warn the witness against hearsay testimony. Cf. Tanner v. State, 764 So.2d 385, 406(¶ 67) (Miss.2000) (detective’s testimony of results of investigation was not hearsay). In several of the instances where the estate objected to hearsay testimony it is apparent that Kaz-ery was testifying to her conclusions, rather than to any out of court statement. For example, she was asked about a diagram she prepared as part of her investigation. The defense inquired where the flagmen were on the diagram. The estate objected. We hold that this was not hearsay, and that she was testifying to her conclusions.

¶ 6. On the other hand, Kazery was also asked, “In you conversation with the flagmen, what were you advised and what did you ask?” The estate was granted a continuing objection to hearsay at this point. Kazery then began to testify as to what one of the flagmen had told her he witnessed. This is clearly hearsay. This occurred several times during her testimony. For example:

Q: Did you ask Officer Burton about flagmen being there?
A: Yes, sir, he said the flagmen had held the traffic for him and told him to go on ahead on.
Q: And in talking with [the workers], what were you advised?
A: Some of them didn’t see anything. In the statements, that’s what was written, that they were not close, did not see anything, and signed.
Q: And Officer Burton, we’re talking about, he was the officer that was involved in the accident; is that correct?
A: Yes, sir.
Q: And you asked him about a flagman?
A: Yes, sir.
Q: What was his response?
A: He said that he had slowed down.
I believe he told me he even rolled the window down to make sure....

¶ 7. These statements were all Kazery’s relating what she had been told out of court, the textbook example of hearsay. They do not fall within any hearsay exceptions. On a close call, we would have to give the trial judge the benefit of the doubt, but we find that it was obvious that these statements were offered for the truth of the matter asserted. Therefore, we hold that allowing these statements over the estate’s objections was an abuse of discretion.

B. The relevance of Kazery’s testimony

¶ 8. The estate argues that Kaz-ery’s testimony regarding her investigation was irrelevant. We disagree.

¶ 9. Mississippi Rule of Evidence 402 declares that all relevant evidence is generally admissible. Rule 401 defines relevant evidence as any evidence having the tendency to make the existence of any fact of consequence more probable or less probable. Kazery was asked about her investigation into the accident and about the construction area where the accident occurred. For example, she was asked about a diagram she prepared of the scene, about the number of flagmen present, and from which lane Mrs. Carter would have been turning. This information definitely would allow the jury to find the existence of material facts more or less probable, and was therefore relevant under Rule 402.

C. Opinion Evidence by a Lay Witness

¶ 10. The estate raises an argument that Kazery lacked personal knowledge of the events concerning the accident and, since she was not qualified as an expert, could not give opinion testimony. The estate is correct that Mississippi Rule of Evidence 602 requires a witness, unless qualified as an expert under Rule 702, to have personal knowledge of the facts to which he testifies. The estate is also correct in asserting that Kazery was not qualified as an expert and her testimony was not admitted as expert testimony.

¶ 11. Before Kazery testified, the estate raised a motion seeking to prohibit her from testifying as to the cause of the accident. The trial court granted the motion, stating:

Here’s the ruling of the court. If she’s called as an accident investigator, she can go through her entire investigation. She can’t offer a conclusion as to fault because she’s not being called as an expert reconstructionist.... And she can testify to everything she saw in her investigation, the conditions that were there, everything that happened. She just can’t offer her final opinion as to whose fault it was.

(emphasis added).

¶ 12. Phillips & Phillips counters the estate’s argument by citing Lynch v. Suthoff, 220 So.2d 593, 596 (Miss.1969), overruled, by Hollingsworth v. Bovaird Supply Co., 465 So.2d 311 (Miss.1985), for the proposition that it is entirely proper for an investigating officer to testify as to what he saw at the accident scene. That is certainly true, but that is not what Kazery did in this case. Her testimony was peppered with comments on what the scene was like at the time of the accident. She left the bounds of the trial judge’s ruling by testifying about what she did not see and of which she did not have personal knowledge. For example, she testified that there were two flagmen present, one on each end of the construction zone. Kazery then testified to what she had been told happened. Not only is this hearsay, as we discussed earlier, but it shows that her testimony was not based on personal knowledge. Mississippi Rule of Evidence 602 clearly indicates that the only witness who may testify to facts not within their personal knowledge is an expert witness. Since Kazery was not qualified as an expert witness, it was error to allow her to testify as to events of which she had no personal knowledge.

II. DID THE COURT ERR IN ENTERING JUDGMENT FOR APPELLEE AND IN FAILING TO GRANT APPELLANT A NEW TRIAL?

¶ 13. We use the abuse of discretion standard of review for the denial of a motion for a new trial in civil cases. When a motion for a new trial is made, the trial judge must view all credible evidence in the light most favorable to the non-moving party. All evidence supporting the claims or defenses of the non-moving party should be taken as true. Only where, upon review, allowing the verdict to stand would result in a miscarriage of justice should the motion be granted. Dorrough v. Wilkes, 817 So.2d 567, 573(¶22) (Miss.2002).

¶ 14. The first witness called was Officer Robert Burton. He testified that he saw a flagman make a motion that would indicate to him that the flagman wanted Mrs. Carter to turn. He testified he saw at least one other flagman inside the construction zone. Burton was using his siren and warning lights at the time of the accident.

¶ 15. Mrs. Eugenia Carter, the victim of the accident, died before the trial. Her video deposition was played for the jury and the transcript of the deposition was entered into evidence. She testified that she had come to a stop at her driveway, which had been given the 911 Address of Carter Place. There was a flagman at that location, and he flagged her to make the left turn into her driveway. She testified that it was her opinion that the flagman would not have signaled her to turn if it had not been safe for her to turn. She also testified that she had been diagnosed with some hearing loss, but was never prescribed a hearing aid to compensate for that loss.

¶ 16. The defense then presented the testimony of James Mathis, the construction crew foreman. He described the standard procedure for setting up a construction zone each morning. According to Mathis, there were only two flagmen on the crew — one at each end of the construction zone.

¶ 17. Next to testify was Joe Altman, a logger working for Phillips & Phillips on the day of the accident. He was working in the vicinity of Carter Road. He testified that he saw Carter preparing to make a turn and he saw Trooper Burton approaching with his warning lights and siren on. Altman attempted to flag Burton to stop, using only his hands, but to no avail.

¶ 18. Next to testify was Officer Kaz-ery. Her testimony consisted of what she learned through her investigation of the accident scene.

¶ 19. Viewing the evidence in the light most favorable to Phillips & Phillips, it would appear that the “mystery” third flagman Trooper Burton saw was actually Altman warning him to stop. This appears to be the same conclusion the jury reached by coming to the verdict it returned. As such, the trial judge was correct in allowing the verdict to stand and in denying the motion for a new trial.

Conclusion

¶20. Based on the evidence the jury heard, the trial judge made the correct ruling on Carter’s motion for a new trial. However, the jury heard evidence in Kaz-ery’s testimony that should have been excluded since it was either hearsay or outside the limits of lay testimony. We therefore reverse and remand this case for a new trial consistent with our findings.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS REVERSED AND REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, P.J., BRIDGES, THOMAS, AND CHANDLER, JJ„ CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J., AND IRVING, J. McMILLIN, C.J., CONCURS IN RESULT ONLY. LEE, J., NOT PARTICIPATING.

GRIFFIS, J.,

dissenting.

¶ 22. I respectfully disagree with the majority’s finding that it was reversible error to admit Officer Kazery’s testimony. Therefore, I dissent.

¶ 23. Officer Kazery did not offer an opinion as to the how the accident occurred or who was at fault. Instead, she testified to what the scene was like at the time of the accident. The specific questions that were objected to relate to the number and position of the flagmen.

¶ 24. The majority correctly finds that the admission of Officer Kazery’s testimony was hearsay not falling within any exception. However, I disagree with the majority’s conclusion that it was an abuse of discretion to allow this testimony requiring a reversal of this case. Instead, I find the admission of such evidence to be harmless error because the same testimony had been introduced through the testimony of Joe Altman, Charlie Mathis, and Linda Gail Jones. Therefore, Carter was not prejudiced by the admission of this testimony.

¶ 25. “For a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party.” Terrain Enters., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995). “Error is reversible only where it is of such magnitude as to leave no doubt that the appellant was unduly prejudiced.” Holladay v. Holladay, 776 So.2d 662, 672(¶40) (Miss.2000).

¶ 26. Joe Altman was a logger working at the site and an eyewitness to the accident. He testified that there were two flagmen posted in the construction area. Charlie Mathis testified that there were two flagmen, one on each end. Linda Gail Jones was several cars behind Mrs. Carter and she testified that she only saw the first flagman who signaled her through.

¶ 27. In Tanner v. State, 764 So.2d 385, 406-07 (¶¶ 69-70) (Miss.2000), the Mississippi Supreme Court held that inadmissible hearsay testimony was harmless error since admissible testimony similar in nature was already introduced. Specifically, the court found:

The prosecution asked Detective McCann on direct examination:
Q: That night, that is, the night y’all first began to treat it as a homicide. Do you know whether Detective McCann spoke with any neighborhood people? A: He did. He spoke with the persons in the neighborhood who were standing out in front of the house and he came back in and he said that something struck him as strange.
When Tanner objected based on hearsay grounds, the trial court stated, “try to avoid hearsay.” Although it did not per se sustain the objection, the trial court’s language implied such. The information received from the testimony above had already been introduced through Detective McCann’s testimony of what he said that night. Consequently, Tanner was not prejudiced by the admission of this hearsay. While this Court agrees the above testimony is inadmissible hearsay, we find such error to be harmless.

¶ 28. Likewise, in this case, I agree with the majority that the Officer Kazery’s testimony was inadmissible hearsay. Because of the similar testimony from Altman, Mathis, and Jones, I find such error to be harmless and would affirm the trial court.

SOUTHWICK, P.J., AND IRVING, J., JOIN THIS SEPARATE OPINION.

      . However, in an earlier deposition taken a year after the accident, Burton stated that he did not remember another flagman.

      . Mrs. Carter’s death was not related to the accident.

      . At other places in the trial, Carter Place is identified as Carter Drive, but all parties agreed that the reference was to Mrs. Carter’s driveway.


author: BROWN, Justice.

text:
    Ex parte Collette RYMER and BellSouth Advertising & Publishing Corporation. (In re Patrick P. Hughes v. Collette Rymer et al.)
    1010936.
    Supreme Court of Alabama.
    Feb. 7, 2003.
    Rehearing Denied April 11, 2003.

      Craig A. Alexander and Paul D. Satter-white of Lange, Simpson, Robinson & Somerville, L.L.P., Birmingham, for petitioners.
    R.M. Woodrow of Doster & Woodrow, Anniston, for respondent.
   BROWN, Justice.

BellSouth Advertising & Publishing Corporation, a corporation whose headquarters are in Georgia (“BAPCO”), and Col-lette Rymer, an account representative for BAPCO, defendants in an action pending in the Calhoun Circuit Court, petition this Court for a writ of mandamus directing the trial court to grant Rymer and BAP-CO’s motion to dismiss for improper venue. We grant the petition and issue the writ.

Facts and Procedural History

On February 17, 2000, Patrick P. Hughes, an attorney, and Rymer executed an order form (“the contract”), pursuant to which Hughes was to purchase an adver-. tisement in a telephone directory published by BAPCO. The contract contained the following paragraph just above Rymer’s and Hughes’s signatures on the front page:

“Applicant, personally, or as authorized representative, applies to BELL-SOUTH ADVERTISING & PUBLISHING CORPORATION ... for the advertising described above.... By signing this [contract], or receipt of a copy without cancellation as set forth on the reverse, Applicant acknowledges having read, understood, and agreed to the Terms and Conditions on the reverse.”

The reverse side of the contract is entitled “Terms and Conditions.” Paragraph 11 of the Terms and Conditions states:

“11. ENTIRE AGREEMENT/GOVERNING LAW/VENUE. This [contract], if accepted by us, and any associated ... agreements are our entire agreement with you and shall be governed by the laws of the State of Georgia. We will not be bound by and disclaim any warranty or right to rely upon any other agreement or representation, such as the location of your Advertising in association with a heading, the nature of other’s advertising or changes which you may later request in your Advertising. Any litigation arising hereunder shall be filed in either the Federal District Court for the Northern District of Georgia or the Superior Court of De-Kalb County, Georgia, and you agree to consent to the jurisdiction of such courts.”

On September 28, 2000, Hughes sued Rymer and BAPCO in the Calhoun Circuit Court alleging breach of contract, fraud, misrepresentation, the tort of outrage, conversion, and negligence. On November 2, 2000, Rymer and BAPCO filed a motion to dismiss pursuant to Rule 12(b)(3), Ala. R. Civ. P., alleging that venue in the Calhoun Circuit Court was improper based on the “outbound” forum-selection clause contained in paragraph 11 of the contract. After a hearing, the trial court denied Rymer and BAPCO’s motion to dismiss, finding that enforcement of the outbound forum-selection clause would be unfair on the basis of “fraud, undue influence, and Defendants’ bargaining power and that enforcement would be unreasonable on the basis that the chosen forum would be inconvenient for the trial of this action.”

Standard of Review

An outbound forum-selection clause — a clause by which parties specifically agree to trial outside the State of Alabama in the event of a dispute — implicates the venue of a court rather than its jurisdiction. See Ex parte CTB, Inc., 782 So.2d 188 (Ala.2000); and O’Brien Eng’g Co. v. Continental Machs., Inc., 738 So.2d 844, 845 n. 1 (Ala.1999).

“ ‘The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.’ Ex parte National Security Ins. Co., 727 So.2d 788, 789 (Ala.1998). ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).”

Ex parte CTB, Inc., 782 So.2d at 190. “On appeal, the review of a trial court’s ruling on the question of enforcing a forum-selection clause is for an abuse of discretion.” Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala.2001).

Analysis

Alabama has adopted the majority rule that an outbound forum-selection clause should be enforced so long as enforcement is neither unfair nor unreasonable under the circumstances of the case. Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 351 (Ala.1997). The party challenging the enforcement of such a clause has the burden of clearly establishing either

“(1) that enforcement of the forum-selection clause[ ] would be unfair on the basis that the contract! ] ... [was] affected by fraud, undue influence, or overweening bargaining power or (2) that enforcement would be unreasonable on the basis that the chosen ... forum would be seriously inconvenient for the trial of the action.”

Sutherland, 700 So.2d at 352. See also Ex parte CTB, Inc., 782 So.2d at 190-91; and Ex parte Northern Capital Res. Corp., 751 So.2d 12, 14 (Ala.1999). Rymer and BAP-CO contend that they have a clear legal right to the enforcement of the outbound forum-selection clause because, they say, Hughes failed to carry his burden of clearly establishing that enforcement of the clause would be unfair or unreasonable.

In order to demonstrate that enforcement of the clause would be unfair, Hughes must show that the contract was affected by fraud, undue influence, or overweening bargaining power. Sutherland, 700 So.2d at 352. First, Rymer and BAP-CO argue that Hughes failed to demonstrate that the contract was affected by-fraud. We agree. Although Hughes strenuously asserts that “this contract was affected by fraud and would not have been entered into absent that fraud” (Hughes’s answer at 4), he fails to provide any evidence indicating that Rymer and BAPCO committed fraud of any kind. Furthermore, Hughes fails to explain exactly how the contract was actually affected by the alleged fraud.

In support of his opposition to Rymer and BAPCO’s motion to dismiss based on the outbound forum-selection clause, Hughes submitted two affidavits. In the first affidavit Hughes does not mention fraud, but instead contends that he did not read the contract before he signed it. Alabama law holds that “a person who signs a contract is on notice of the terms therein and is bound thereby even if he or she fails to read the document.” Locklear Dodge City, Inc. v. Kimbrell, 703 So.2d 303, 306 (Ala.1997)(citing Power Equip. Co. v. First Alabama Bank, 585 So.2d 1291 (Ala.1991)). The second affidavit merely contains the eonelusory assertion that “[t]he contract language raised by [BAPCO and Rymer] was induced by fraud and undue influence.” Hughes’s eonelusory assertions, without more, are insufficient to meet his burden of clearly establishing that enforcement of the outbound forum-selection clause would be unfair under the circumstances. See Ex parte D.M. White Constr. Co., supra (concluding that the respondent’s eonelusory assertions did not establish that enforcement of the outbound forum-selection clause would be unfair or unreasonable).

Rymer and BAPCO further contend that Hughes failed to demonstrate that the contract was affected by undue influence or overweening bargaining power. Only Hughes’s second affidavit mentions undue influence and overweening bargaining power. Again, his allegations of undue influence and overweening bargaining power on the part of BAPCO and Rymer are supported only by eonelusory statements. Hughes merely states in his second affidavit that the contract was affected by undue influence and that “[because of the Defendants’ [overweening] bargaining power, there was/is no alternative but to utilize Defendants’ services.” He also contends that “the Defendants convinced me that because the Defendants represented ‘The Real Yellow Pages,’ they were the only appropriate advertising for professionals.” Those statements, without more, do not clearly establish that the contract at issue was affected by undue influence or overweening bargaining power.

Because Hughes has offered no evidence to support his allegations that the contract was affected by fraud, undue influence, or overweening bargaining power, he has failed to clearly establish that enforcement of the forum-selection clause would be unfair.

The second issue in a challenge to an outbound forum-selection clause is whether enforcement of the clause would be unreasonable on the basis that the chosen forum would be seriously inconvenient for the trial of an action. In order to demonstrate that the chosen forum is seriously inconvenient, the party challenging the clause must show that a trial in that forum would be so gravely difficult and inconvenient that the challenging party would effectively be deprived of his day in court. Ex parte Northern Capital Res. Corp., 751 So.2d at 15.

“When an agreement includes a clearly stated forum-selection clause, a party claiming that clause is unreasonable and therefore invalid will be required to make a clear showing of unreasonableness. In determining whether such a clause is unreasonable, a court should consider these five factors: (1) Are the parties business entities or businesspersons? (2) What is the subject matter of the contract? (3) Does the chosen forum have any inherent advantages? (4) Should the parties have been able to understand the agreement as it was written? (5) Have extraordinary facts arisen since the agreement was entered that would make the chosen forum seriously inconvenient? We state these items not as requirements, but merely as factors that, considered together, should in a particular case give a clear indication whether the chosen forum is reasonable.”

Ex parte Northern Capital Res. Corp., 751 So.2d at 14.

The five factors, as applied to this case, do not give a clear indication that a trial in the chosen forum would be so difficult and inconvenient that it would effectively deprive Hughes of his day in court. First, the parties in this case are business entities and businesspersons. BAPCO is obviously a corporation, and Hughes is a professional who maintains a “practice” in Calhoun County. Furthermore, the subject matter of the contract was the purchase of advertising for Hughes’s business in a telephone directory. Thus, both parties to this relatively simple agreement are reasonably sophisticated.

The chosen forum for the trial of this action — DeKalb County, Georgia — is the business headquarters for BAPCO. Hughes makes no allegation that he was unable to understand the contract terms, and the outbound forum-selection clause appears to be clearly and unambiguously written. Furthermore, because Hughes is an attorney, it is highly unlikely that he was unable to understand the forum-selection clause as it was written. Finally, Hughes does not allege that any extraordinary circumstances have arisen since the contract was executed that would make the chosen forum seriously inconvenient. Consequently, we conclude that these factors suggest no unreasonableness as to this particular forum-selection clause under the facts of this case.

Conclusion

Hughes failed to clearly establish that enforcement of the forum-selection clause would be either unfair or unreasonable. Rymer and BAPCO have demonstrated a clear legal right to have the action against them dismissed on the basis that venue in the Calhoun Circuit Court is, by virtue of the outbound forum-selection clause, improper. The trial court abused its discretion in denying Rymer and BAPCO’s motion to dismiss. We direct the court to dismiss this cause, without prejudice, pursuant to Rule 12(b)(3), Ala. R. Civ. P.

PETITION GRANTED; WRIT ISSUED.

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

MOORE, C.J., concurs in the result.

      . Rymer and BAPCO allege that Hughes is an attorney licensed to practice law in the State of Alabama; Hughes does not deny the allegation. Furthermore, we take judicial notice from the roll of attorneys maintained by the clerk of this Court that Patrick Paul Hughes is an attorney licensed to practice law in the State of Alabama.


author: LYONS, Justice.

text:
    Julia M. SMITH v. NATIONAL SECURITY INSURANCE COMPANY.
    1020089.
    Supreme Court of Alabama.
    April 4, 2003.

      Ronald Austin Canty of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellant.
    L. Merrill Shirley, Elba, for appellee.
   LYONS, Justice.

Julia M. Smith appeals from the trial court’s order dismissing her claims against National Security Insurance Company (“National Security”). We affirm.

Facts and Procedural History

On or about January 19,1998, Don Murphy, a salesman for National Security, offered to sell Julia Smith a “hospital/accident” insurance policy for her minor son. Smith’s son was eligible for Medicaid benefits. Smith asserted in her complaint that Murphy represented that “[the] policy would cover all of her minor son’s medical bills incurred as a result of an accident, and despite being a recipient of Medicaid” and that Smith “needed the insurance policy for her son’s protection.” Smith notes that Murphy made these representations “even though, as a Medicaid recipient, her son would receive absolutely no benefit from this policy.” Smith purchased the insurance policy and made premium payments until around August 2000, when she claims she heard there might be “something wrong” with her insurance policy.

On October 3, 2001, Smith sued National Security alleging; 1) fraudulent misrepresentation; 2) fraudulent suppression; 3) innocent/negligent/reckless misrepresentation; 4) negligent hiring and/or supervision of Murphy; 5) wanton hiring and/or supervision of Murphy; and 6) the tort of outrage. National Security filed a motion to dismiss, and on January 14, 2002, the trial court entered an order dismissing all counts other than those sounding in fraud. The order noted that Smith’s complaint had not been filed within the two-year statutory limitations period for a fraud action but stated that a fraud claim “may survive if the alleged fraud was not discovered until the two year statute had run.” Because Smith’s complaint did not provide information as to when she discovered the alleged fraud, the trial court granted Smith 20 days to amend the complaint “to allege the time of discovery of any fraud.” The order also allowed National Security to renew its motion to dismiss based on the statute-of-limitations defense, if, after Smith amended her complaint, the defense still had merit.

On March 12, 2002, Smith was allowed to file her amended complaint, which stated in pail;: “In or around August of the year 2000, [Smith] heard in her community that there may be something wrong with her insurance policy and shortly thereafter, [Smith] contacted an attorney.” National Security filed a motion to strike and/or to dismiss Smith’s amended complaint based in part on the grounds that Smith’s action was filed “more than two (2) years after [Smith’s] alleged civil [cause of] action should or could have been discovered and, in fact, more than three (3) years after receipt of her policy.” On September 3, 2002, the trial court entered an order dismissing Smith’s remaining claims as barred by the “appropriate” statute of limitations. Smith filed a “motion to reconsider,” which the trial court denied. Smith appealed.

Standard of Review

In Nance v. Matthews, 622 So.2d 297 (Ala.1993), this Court stated the standard of review applicable to a motion to dismiss:

“On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [it] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [it] may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”

Nance, 622 So.2d at 299 (citations omitted).

Analysis

Smith argues that the statutory limitations period had not run on her fraud claims when she filed her complaint. She acknowledges the two-year statutory limitations period for fraud-based actions, § 6-2-3, Ala.Code 1975, but points out that the limitations period “does not begin to run until the plaintiff discovers or should have discovered the fraud.” See Ala.Code 1975, § 6-2-3; Kelly v. Connecticut Mut. Life Ins. Co., 628 So.2d 454 (Ala.1993). Smith contends that when a plaintiff discovered or should have discovered the fraud for the purposes of the limitations period is a fact question to be decided by a jury. Liberty Nat’l Life Ins. Co. v. McAllister, 675 So.2d 1292, 1297 (Ala.1995).

Smith argues in her brief to this Court that she “has not alleged one fact that would have put her on notice before the statute of limitations had run” and that her complaint alleges that she discovered National Security’s fraud within two years of filing her action. Smith recognizes that a complaint must contain the time and circumstances of discovery of the alleged fraud to toll the running of the limitations period and thereby entitle a plaintiff to relief from the bar of the limitations period. Angell v. Shannon, 455 So.2d 823 (Ala.1984); Rule 9(b), Ala. R. Civ. P. Smith contends that her amended complaint complies with the requirements of Rule 9(b) by providing the time and circumstances of her discovery of the alleged fraud. She points us to paragraphs 9 through 12, which state:

“9. In or around August of the year 2000, [Smith] heard in her community that there may be something wrong with her insurance policy and shortly thereafter, [Smith] contacted an attorney.
“10. The fraud committed upon [Smith] is of a continuing nature, and said conduct has repeatedly and continuously injured [Smith] upon each premium payment. National Security’s actions amounted to a single sustained method pursued in execution of their general scheme of fraudulent conduct.
“11. At all times material hereto, Don Murphy was the agent and/or representative of Defendant National Security and was acting within the line and scope of his agency in dealing with [Smith], “12. [Smith] discovered the fraud within two (2) years of filing the lawsuit.”

Smith’s brief, pp. 8-9.

The amended complaint was filed in response to the trial court’s order granting Smith 20 days to amend the complaint “to allege the time of discovery of any fraud.” On its face, the amended complaint complies with the trial court’s order. However that fact does not end our inquiry, because the trial court dismissed the amended complaint based on National Security’s renewed motion to dismiss. In its renewed motion, National Security alleged that the complaint was untimely filed, “having been filed more than two (2) years after [Smith’s] alleged civil [cause of] action should or could have been discovered and, in fact, more than three years after receipt of her policy.” (Emphasis added.) It is thus undisputed that from the face of Smith’s complaint her action is barred by the statute of limitations.

The standard applicable to efforts to save a complaint when the complaint on its face is barred by the statute of limitations was established in Miller v. Mobile County Board of Health, 409 So.2d 420 (Ala.1981). In Miller, this Court held:

“When, as in this case, the plaintiffs complaint on its face is barred by the statute of limitations, the complaint must also show that he or she falls within the savings clause of § 6-2-3. Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979). See Associates Financial Services Co. v. First National Bank, 292 Ala. 237, 292 So.2d 112 (1974). Rule 9 of the Alabama Rules of Civil Procedure requires that fraud be alleged ‘with particularity.’ Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979).”

409 So.2d at 422.

The plaintiff in Miller attempted to escape the bar of the statute of limitations by pleading “ ‘that Defendants committed fraud on Plaintiff by fraudulently concealing the defective and unreasonably dangerous condition of said product from Plaintiff after they knew said product was defective and dangerous.’ ” 409 So.2d at 422. Unlike Smith’s complaint — where there is no reference to concealment — the complaint under consideration in Miller at least contained a reference to concealment. Nevertheless, this Court found the complaint in Miller to be deficient, stating:

“The complaint fails to allege any of the facts or circumstances by which the ap-pellees concealed the cause of action or injury. The complaint also fails to allege what prevented Mrs. Miller from discovering facts surrounding the injury. See Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979); Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979). The plaintiffs make only generalized allegations to support their claim for fraudulent concealment. Although under modern rules of civil practice the pleadings only need to put the defending party on notice of the claims against him, Rule 9(b) qualifies the generalized pleadings permitted by Rule 8(a), [Ala. R. Civ. P.] ‘The pleading must show time, place and the contents or substance of the false representations, the facts misrepresented, and an identification of what has been obtained.’ Rule 9(b), [Ala. R. Civ. P.], Committee Comments [on 1973 Adoption]. The allegations contained in count 6 fail to meet the requirements of Rule 9. Thus, the trial court did not err in granting the motion to dismiss in favor of A.H. Robins.”

409 So.2d at 422. In Lowe v. East End Memorial Hospital & Health Centers, 477 So.2d 339 (Ala.1985), the plaintiff alleged that the hospital had engaged in fraud, and the fraud had occurred outside the two-year limitations period. The complaint, filed in 1983, alleged that “ ‘Plaintiff discovered in July of 1983 that representations of Defendant were false and that Defendant had fraudulently concealed facts giving rise to the cause of action.’ ” Lowe, 477 So.2d at 340. This Court, relying on Miller, concluded that the allegations in the complaint did not give rise to any facts relating to the plaintiffs discovery of the alleged fraud that would toll the running of the statutory limitations period. Lowe, 477 So.2d at 342.

Here, as in Miller, Smith’s complaint “fails to allege any of the facts or circumstances by which the appellees concealed the cause of action or injury,” and “fails to allege what prevented [Smith] from discovering facts surrounding the [fraud].” 409 So.2d at 422. Smith’s general reference to the alleged fraud as being “of a continuing nature” is wholly lacking in specificity and equally deficient as a means of saving the action from the bar of the statute of limitations appearing on the face of the complaint.

While Smith did, in her amended complaint, give the trial court, as it requested, the time of the discovery of the fraud, the trial court’s order is due to be affirmed based upon the aforementioned deficiencies in the amended complaint, notwithstanding the fact that Smith complied with the trial court’s order allowing leave to amend. We cannot assume that the trial court, by allowing Smith leave to amend her complaint to state the time of her discovery of the alleged fraud, had concluded that the complaint was otherwise sufficient. Nor can we assume that the trial court adhered to that view when the renewed motion to dismiss, charging that Smith could have discovered that she had a claim within two years of the sale of the policy, was before it. But, even if we make such assumptions, “this Court ‘[can] affirm the judgment appealed from if supported on any valid legal ground.’ ” Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988) (quoting Tucker v. Nichols, 431 So.2d 1263, 1265 (Ala.1983)).

Smith makes two final arguments in support of her contention that the trial court erred in dismissing her fraud claims against National Security. She asserts that the face of her complaint “clearly states a set of facts constituting fraudulent misrepresentations and suppressions.” Smith further points out that before her claims were dismissed, there had been no discovery in the case. National Security had not responded to her discovery requests and no depositions had been taken. These arguments are pretermitted by the previous conclusion that Smith’s fraud claims are outside the statutory limitations period of § 6-2-3 and that the complaint contains insufficient allegations that would justify relief from the bar of the limitations period.

Conclusion

The trial court properly dismissed Smith’s fraud claims against National Security. The trial court’s order is affirmed.

AFFIRMED.

MOORE, C.J., and HOUSTON, HARWOOD, and WOODALL, JJ., concur.


author: CRAWLEY, Judge.

text:
    Marty CASTEEL, by and through his next friend, Melisa JOHNSON v. WAL-MART STORES, INC.
    2010812.
    Court of Civil Appeals of Alabama.
    Jan. 17, 2003.
    J. Zach Higgs, Jr., and Robert D. Lee of Higgs & Emerson, Huntsville, for appellant.
    Charles F. Carr and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sis-son, P.C., Birmingham, for appellee.
   CRAWLEY, Judge.

On June 8, 1999, Marty Casteel (“the worker”), by and through his next friend, Melisa Johnson, sued the worker’s employer, Wal-Mart Stores, Inc., seeking workers’ compensation benefits for an injury the worker claimed to have suffered in the line and scope of his employment. On February 12, 2001, Wal-Mart moved for a summary judgment. On May 4, 2001, the trial court entered a summary judgment in favor of Wal-Mart.

Casteel appealed, arguing that the judgment did not comply with § 25-5-88, Ala. Code 1975. He also argued that the summary judgment was erroneous because, he said, he had presented substantial evidence creating genuine issues of material fact with respect to whether his injury was compensable and whether the applicable statutory limitations period had been tolled by what he claimed was his incapacity.

On February 22, 2002, this court determined that the resolution of the issue regarding § 25-5-88 was dispositive of the appeal; we reversed the summary judgment and remanded the cause for the circuit court to make the necessary findings of fact and conclusions of law. On remand, the circuit court entered a comprehensive order that outlines the facts and applies the law to those facts. 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).

The pertinent facts relating to the compensability of the worker’s injury are essentially undisputed. The circuit court’s order states, in part:

“[The worker] was an employee of the Wal-Mart Distribution Center located in Cullman, Alabama during May of 1994. His job duties included filling orders for cases of merchandise in the warehouse. That position did not require [the worker] to use any equipment other than his own hands, the labels that he placed on the cases of merchandise, and a back support belt to protect him when lifting the cases of merchandise.
“On the evening of May 7, 1994, [the worker] was found lying on the floor of his work area by his supervisor John Kuhlmeyer. When found by Mr. Kuhl-meyer, [the worker] had some blood on his head, coming from a cut that did not appear to be severe. The labels and the merchandise found near [the worker’s] body indicate that he had been working in the same general area on the ground level where he was found. An investigation of the area where he was found did not reveal any objects or substances that could have caused [the worker] to fall.
“[The worker] himself has no recollection of what occurred on that date, or how he ended up on the floor. There were no witnesses as to what occurred.
“After he was found, an ambulance transported [the worker] to the Cull-man Medical Center emergency room. According to the emergency room physician, [the worker] was ‘combative’ and brought in under ‘full spinal restraints’ and his behavior was ‘odd.’ [The worker] was thereafter transferred to Brookwood Medical Center for further diagnostic testing. Although there was initial speculation as to a possible skull fracture, subsequent diagnostic tests clearly revealed that [the worker] did not suffer any skull fracture, and his CT head scan was ultimately found to be normal in appearance. While hospitalized, [the worker] began having seizures, and the initial primary physicians were suspicious that [the worker] may have had a seizure while working, which caused him to fall and hit his head on the floor. From [the worker] and his family, the physicians learned that [the worker] had a very definite history of drug abuse, including marijuana, cocaine and LSD.
“The evidence showed that [the worker] tested positive for marijuana upon admittance to the hospital, and, as a result, Wal-Mart denied his claim based upon his voluntary intoxication. Upon discharge from Brookwood Medical Center, [the worker] immediately entered a drug rehabilitation program at Bradford Parkside.
“There is no dispute but that [the worker] currently suffers from a severe seizure disorder. He has undergone regular treatment for this seizure disorder since May 1994, with varying degrees of success....
“Despite extensive medical evaluation and treatment, none of [the worker’s] multitude of physicians, including Dr. Faught, Dr. Staner, Dr. Lewis, Dr. McDaris, Dr. Norwood, and Dr. Knowl-ton, [has] been able to determine whether [the worker] had a seizure and then fell, or whether he fell and began having seizures as a result. The only opinion offered one way or the other by any of [the worker’s] physicians was at Brook-wood Medical Center where [the worker] was treated in the days following his fall. The Brookwood physicians indicated that the [worker’s] seizures may have been caused by his abuse of illegal drugs which resulted in his fall at work. Other than that one medical record, there is absolutely no other evidence which indicates what happened to [the worker] on May 7, 1994. None of the doctors who were deposed in this case could offer any opinion one way or the other as to what happened. Although Dr. Faught testified that a blow to the head could cause a seizure disorder, he testified that he could not say whether a seizure occurred causing [the worker] to fall, or whether [the worker] fell and hit his head which resulted in the seizure disorder.”

This case is indistinguishable in all material respects from Slimfold Manufacturing Co. v. Martin, 417 So.2d 199 (Ala.Civ.App.1981). In Slimfold, the worker suffered an “unexplained fall” for which he could not identify a reason and to which there were no witnesses. The employer presented evidence indicating that the worker’s fall was caused by a fainting spell brought on by cirrhosis of the liver. The trial court awarded compensation benefits. This court reversed, holding that the worker had not met his burden of proving causation, i.e., he had failed to establish that his employment was the “source and cause” of his injury. In Slimfold, this court stated:

“[I]n Alabama the employment must be the source and cause of the accident. Our supreme court in Wooten v. Roden, 260 Ala. [606] at 610, 71 So.2d [802] at 805 [ (1954) ], stated that in order to satisfy the ‘source and cause’ requirement ‘the rational mind must be able to trace the resultant injury to a proximate cause set in motion by the employment and not otherwise....’”

417 So.2d at 201-02. The court stated that “[t]he but-for test is clearly not the test for causation under Alabama’s [Workers’] Compensation Act. Instead, the burden is on the claimant to establish a definite causal connection between the work and the injury.” Slimfold, 417 So.2d at 202. See also Wal-Mart Stores, Inc. v. Morgan, 830 So.2d 741, 742 (Ala.Civ.App.2002) (reversing an award of benefits because the worker did not establish the cause of her fall other than to testify that she must have “lost her balance”).

In the present case, as in Slimfold, the worker did not rebut the inference that an idiopathic factor — in Slimfold cirrhosis of the liver; here, long-term drug abuse— may have caused his fall. Compare Ex parte Patterson, 561 So.2d 236, 239 (Ala.1990)(reversing a denial of benefits because, among other reasons, the evidence “was sufficient to show, at least prima facie, that there was no basis upon which to reasonably infer that idiopathic factors played a role in the accident”). As in Slimfold, the worker here did not establish the causation element of his claim for workers’ compensation benefits.

“[T]he appellate courts will affirm the trial court if its ruling is correct on any valid ground.” Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 872 (Ala.1999). Because we affirm the circuit court’s judgment based on its determination that the worker had not suffered a compensable injury, we need not address the statute-of-limitations issue.

The judgment of the circuit court is affirmed.

AFFIRMED.

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

      . As the Alabama Supreme Court explained in Ex parte Patterson, 561 So.2d at 238 n. 2,
      "We use the word 'idiopathic' as it is used by Professor Larson, to mean ‘peculiar to the individual' and not 'arising from an unknown cause.' Idiopathic refers to an employee's preexisting physical weakness or disease. 1 Larson, Workmen’s Compensation Law § 12.00.”


author: LYONS, Justice. HOUSTON, Justice

text:
    Ex parte Marty CASTEEL, by and through his next friend, Melisa JOHNSON. (In re Marty Casteel, by and through his next friend, Melisa Johnson v. Wal-Mart Stores, Inc.).
    1020681.
    Supreme Court of Alabama.
    April 11, 2003.
    J. Zach Higgs, Jr., and Robert D. Lee of Higgs & Emerson, Huntsville, for petitioner.
    Charles F. Carr and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sis-son, P.C., Birmingham, for respondent.
   LYONS, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

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

HOUSTON and JOHNSTONE, JJ., dissent.

HOUSTON, Justice

(dissenting).

I would grant certiorari review.

I wrote Ex parte Patterson, 561 So.2d 236 (Ala.1990), which was an 8-0 decision. Our standard of review for a summary judgment and Ex parte Patterson cause me to want Wal-Mart to tell me why the summary judgment in its favor was proper.

JOHNSTONE, J., concurs.


author: THOMPSON, Judge.

text:
    Tony Alan WALLS v. Anita Carol WALLS. Anita Carol Walls v. Tony Alan Walls.
    2010860.
    Court of Civil Appeals of Alabama.
    Feb. 21, 2003.
    Rehearing Denied April 4, 2003.

      Thomas M. Goggans, Montgomery, for appellant/cross-appellee Tony Alan Walls.
    Jamie Logan and Dan Warnes, Gunters-ville, for appellee/cross-appellant Anita Carol Walls.
   THOMPSON, Judge.

In February 2001, Tony Walls (“the husband”) sued Anita Walls (“the wife”) for divorce, alleging incompatibility of temperament and irretrievable breakdown of the marriage. In April 2001, the wife filed an answer and counterclaimed for a divorce; she requested that she be awarded custody of the parties’ minor child; that the husband be required to pay both periodic alimony and alimony in gross; that the parties’ property be equitably divided; and that the husband be required to pay her reasonable attorney fees. The wife requested an immediate hearing on the issues of support, custody, and visitation.

On May 1, 2001, the court entered a pendente lite order awarding the wife exclusive use of the parties’ marital home until the final hearing and awarding custody of the parties’ minor child to the wife, subject to the husband’s visitation. The husband was ordered to pay $540.82 in monthly child support and to pay the $628 monthly payment on the indebtedness on the marital home and $50 per month for house insurance. He was also ordered to pay $48 per month for life insurance, $800 for household expenses, and the May and June 2001 payment on the wife’s automobile. The court suggested that the wife select a vehicle “more suitable to the financial constraints under which the parties now operate,” and it ordered the wife to seek employment. In the May 1, 2001, pendente lite order, the husband was awarded exclusive possession of a truck and of the automotive accessory and service business he operated.

The trial court conducted an ore tenus hearing. On February 22, 2002, the trial court entered a judgment divorcing the parties and dividing the parties’ real and personal property. The trial court awarded primary physical custody of the parties’ minor child to the wife and awarded visitation and the right to claim the income-tax-dependency exemption for the minor child to the husband. The husband was ordered to pay $349.09 per month in child support, to maintain a life-insurance policy for the benefit of the child, and to provide health-insurance coverage for the child. The trial court ordered that the parties’ home, commercial real estate, and business assets be divided between the parties; the trial court ordered that if the parties were unable to divide the property between themselves in 30 days, the property was to be listed for sale and each party would be entitled to 50% of any proceeds remaining after all secured and unsecured creditors were paid. The wife was allowed to continue living in the marital home until it was sold. The divorce judgment also provided that beginning in March 2002, the husband’s monthly support payment to the wife of $800 would be reduced by $100 each successive month until that obligation no longer existed. The trial court also ordered each party to be responsible for his or her attorney fee and the indebtedness on his or her automobile.

On February 27, 2002, the wife filed a motion for immediate relief, requesting the appointment of a receiver and a restraining order. The wife alleged that the husband had continually harassed her following the entry of the divorce judgment and that she was concerned he would dispose of business assets and conceal the profits he had derived from the sale of those assets. On March 5, 2002, the husband moved to alter, amend, or vacate the judgment or for a new trial. In that motion, the husband contended that the trial court had abused its discretion by ordering that all the assets be sold. The husband alleged that if he sold the business he would have no means by which to support himself or the parties’ child. On April 18, 2002, the wife responded to the husband’s motion to alter, amend, or vacate the judgment and, in that same filing, also sought to alter, amend, or vacate the divorce judgment.

On April 18, 2002, the trial court entered an amended divorce judgment. The court amended the property division provision by awarding the wife the marital home and ordering the husband to pay the mortgage indebtedness. The husband was awarded the parties’ commercial real estate. The husband was also ordered to pay the wife $52,500 as an additional property settlement. The trial court did not modify that part of its divorce judgment requiring the husband to pay the wife a support obligation that started at $800 in March 2002 and reduced by $100 per month thereafter.

On May 17, 2002, the husband filed a motion to alter or amend the amended final judgment, contending that he could not afford to pay any of the moneys he was ordered to pay pursuant to the amended judgment. The husband filed a notice of appeal on May 29, 2002; at that time, the trial court had not yet ruled on his post-judgment motion. According to Rule 4(a)(5), Ala. R.App. P., a notice of appeal filed while a postjudgment motion is pending is deemed to be held in abeyance until either the trial court rules on the post-judgment motion or that motion is deemed denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Therefore, the husband’s appeal was timely. The wife cross-appealed.

The record indicates that the parties were married in 1990 and that they lived together as husband and wife until the husband vacated the marital residence in February 2001. One child was born of the parties’ marriage. The husband owns and operates a business known as “Walls Accessories,” which sells radios, tires, wheels, hubcaps, and other vehicle accessories. He started this business in 1983 and incorporated the business in 1996. The husband testified that the business thrived until 1997 when the radio sales ended and the hubcap business changed. The husband testified that if business continued to decline, he would soon have to close his shop. The husband testified that he was issued a weekly check from the business in the amount of $400.

The husband admitted to having a problem with illegal drugs, specifically cocaine, beginning in 1989. He also admitted to spending money belonging to the business, at times approximately $1,000 a week, on drugs. He had attended several rehabilitation facilities and stated that he last used illegal drugs in January 2001. At the time of the hearing, the husband stated that he had not used illegal drugs for a year and a month. The husband estimated the marital home was worth approximately $75,000, and he valued the business at between $160,000 and $200,000.

The husband testified that the wife worked at a body shop when they married, but that she wanted to quit work and remain at home. The husband also stated, however, that during their marriage the wife had been trained in cosmetology and that she had worked in her own beauty shop for over a year. The husband stated that his wife closed the shop because she “got lazy.”

A personal financial statement dated July 2001 showed the husband with a net worth of $400,000; however, the husband alleged this figure was inaccurate and that he was not aware of how that figure was obtained. The husband testified that the business lost $76,000 in 2001.

The husband testified that he was financially unable to make the court-ordered payments that totaled approximately $2,000 a month. A bookkeeper at Walls Accessories testified that the husband was not financially able to make the court-ordered payments and that making those payments would put him out of business. The bookkeeper testified that she had formulated a balance sheet for Walls Accessories in December 2001 that reflected the business’s equity at negative $41,210.19, and reflected a business loss in that year in excess of $76,000.

However, several bank employees verified financial statements that the husband had submitted to the banks in conjunction with applications for loans. A statement dated July 2001, showed a net worth in excess of $400,000. Another personal financial statement, dated September 2000, reflected the husband’s total assets at $811,000. The husband testified that the wife had submitted those valuations to the bank.

The wife testified that during the parties’ marriage, all of the parties’ living expenses were met through income from the business. She stated that she and her husband had used cash from the business for personal expenses. She further testified that the business had never reported its cash sales on its tax returns. The wife estimated that the cash sales could have totaled as much as $100,000 a year.

She alleged that the husband had spent $2,000 a week on drugs. The wife testified that the husband’s drug abuse put “a strain on everything.”

The wife alleged that the husband admitted to adulterous affairs with five different women during the parties’ marriage. The wife further maintained that the husband had physically abused her on five different occasions. The husband denied both those allegations. The husband further stated that his wife caused the marriage to “bl[o]w up” and claimed that she was the reason he was a drug addict.

On appeal, the husband contends that the trial court’s property division is inequitable and that it will financially “cripple” him. The wife argues in her cross-appeal that the trial court erred in failing to award her periodic alimony. The issues pertaining to an award of alimony and a property division are interrelated, and courts must consider them together. Albertson v. Albertson, 678 So.2d 118 (Ala.Civ.App.1996). Therefore, we address these two arguments together.

In reviewing the judgment of a trial court in a divorce case, where the trial court has made findings of fact based on oral testimony, we are governed by the ore tenus rule. Under this rule, the trial court’s judgment based on those findings is presumed correct and will not be disturbed on appeal unless it is plainly and palpably wrong. Hartzell v. Hartzell, 623 So.2d 323 (Ala.Civ.App.1993). This presumption of correctness is based on the trial court’s being in the unique position of being able to observe the witnesses and to assess their demeanor and credibility. Hall v. Mazzone, 486 So.2d 408 (Ala.1986). Matters of alimony and property division rest soundly within the trial court’s discretion. Albertson v. Albertson, supra; Welch v. Welch, 636 So.2d 464 (Ala.Civ. App.1994). Factors the trial court should consider in its award of alimony and its division of property include the earning ability of the parties; their ages and health; their station in life; the marital properties and their sources, values, and types; and the conduct of the parties in relation to the marriage. Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001). Furthermore, a division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996).

Pursuant to the amended divorce judgment, the husband was awarded the business. The trial court also awarded the husband the parties’ time-share in Gatlin-burg, Tennessee, together with the indebtedness thereon; the value of that timeshare interest is not contained in the record on appeal. The trial court also ordered that a truck in the possession of the wife be returned to the husband’s business.

Under the amended divorce judgment, the wife was awarded the marital home, valued at approximately $75,000, and the husband was ordered to make the monthly payments on the mortgage indebtedness on that home. The trial court also awarded the wife a property settlement of $52,500, which is apparently representative of her interest in the business.

The trial court ordered that beginning in March 2002, the husband was to pay the wife $800 per month, and that in each successive month, that payment was to be reduced by $100 per month. The amended judgment does not state the nature of this award. In such a case, the source of the award, as well as its purpose, are factors to consider in determining the nature of the award. Littleton v. Littleton, 741 So.2d 1083 (Ala.Civ.App.1999). “In order for an award to be characterized as alimony in gross, the time of the payment and the amount of the payment must be certain and the right to the payment must not be subject to modification.” Littleton v. Littleton, 741 So.2d at 1085. Alimony in gross is in the nature of a property settlement. Laminack v. Laminack, 675 So.2d 479 (Ala.Civ.App.1996).

In this case, the award at issue provides for payments totaling $3,600. That award is contained in the “property division” portion of the divorce judgment, between the provision requiring the wife to return the truck to the husband’s business and the provision awarding the wife $52,500. In the paragraph immediately following the provision at issue, the trial court characterized the $52,500 payment as a “further property settlement.” Given the foregoing, we must conclude that the provision for the monthly payments is in the nature of a ■ property settlement or alimony in gross. See Littleton v. Littleton, supra.

Thus, the husband was awarded his personal property, the couple’s timeshare interest, and the business, which he valued at between $160,000 and $200,000. The wife was awarded the marital home, with the husband paying the monthly mortgage payments; $3,600 as alimony in gross or a property settlement; and $52,500 as a further property settlement. Thus, the wife received a total award of approximately $131,000 in assets.

There was a large disparity in the parties’ assessment of the business’s assets; therefore, the parties disputed the husband’s net worth. The record also contains evidence indicating that some of the business’s financial dealings were in cash and were not reported on the parties’ or the business’s tax returns. The trial court had the unique opportunity to observe and to hear the parties and the witnesses firsthand. See Hall v. Mazzone, 486 So.2d 408 (Ala.1986). The trial court considered the parties’ ages, health, and probable future prospects; the parties’ conduct with regard to the breakdown in the marriage; and the source of the parties’ property. See Robinson v. Robinson, supra. Given those factors, we cannot say that the husband has demonstrated that the trial court erred in fashioning its property division and alimony award.

In her argument that the trial court erred in failing to award her periodic alimony, the wife cites Laws v. Laws, 653 So.2d 293 (Ala.Civ.App.1994), for the proposition that “[t]he purpose of [periodic] alimony is to preserve, if possible, the status quo of the parties.” 653 So.2d at 295 (emphasis added). Stated another way, the purpose of alimony is to “support the former dependent spouse and to enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until the spouse is self-supporting or maintaining a status similar to the one enjoyed during the marriage.” O’Neal v. O’Neal, 678 So.2d 161, 165 (Ala.Civ.App.1996). The wife maintains that because the husband was the sole income earner during the parties’ marriage, he is required to continue providing her support in order that she may maintain the status the parties enjoyed during their marriage.

In this case, the parties did not present clear evidence regarding the amount of income produced by the husband’s business. The record does not demonstrate that the husband is capable of paying the wife periodic alimony in addition to the other amounts ordered under the amended divorce judgment. Thus, the evidence would support a conclusion that it is not possible for the parties to enjoy, after their divorce, the same economic status they shared during their marriage.

The trial court found that the wife was capable of maintaining employment, and in its pendente lite order, it ordered her to seek employment. The evidence pertaining to the wife’s employment history supports that conclusion. Further, the wife was awarded the marital home, free of the monthly mortgage payments, as well as a substantial property settlement. The issues of alimony and property division must be considered together. Albertson v. Albertson, supra. Given the trial court’s property division and the evidence in the record, we cannot say that the wife has demonstrated that the trial court erred in failing to award her periodic alimony.

We conclude, however, that the trial court should have at least reserved the issue of alimony. The failure to award alimony or reserve the issue of alimony in a divorce judgment precludes a trial court from later awarding alimony. Chambliss v. Chambliss, 587 So.2d 406 (Ala.Civ.App.1991). Given the length of the parties’ marriage, the wife’s current unemployment, and the disparity in the parties’ current earning potential, the trial court should have “reservefd] the right to award periodic alimony at a later date,” should the circumstances justify such an award. See Paulson v. Paulson, 682 So.2d 1060, 1064 (Ala.Civ.App.1996) (holding that the trial court erred in failing to at least reserve the issue of alimony). Therefore, we reverse the trial court’s judgment insofar as it failed to reserve the issue of alimony and remand the case for the trial court to modify its judgment so as to reserve the issue of alimony.

In her cross-appeal, the wife also argues that the trial court erred in failing to award her an attorney fee. It is well settled that the award of an attorney fee in a divorce action is a matter within the sound discretion of the trial court. Slater v. Slater, 587 So.2d 376 (Ala.Civ.App.1991); Holmes v. Holmes, 487 So.2d 950 (Ala.Civ.App.1986). In determining whether to award an attorney fee, the trial court should consider the conduct of the parties, the financial circumstances of the parties, and the outcome of the litigation. Id. After considering the assets awarded the parties and their conduct, we cannot say that the trial court abused its discretion in failing to award the wife an attorney fee.

Last, the wife contends that the trial court erred in awarding the husband the right to claim the income-tax-dependency exemption for the parties’ minor child without stating its reasons for deviating from Rule 32, Ala. R. Jud. Admin. This court has held that an award of the income-tax-dependency exemption is a matter within the trial court’s discretion. Flanagan v. Flanagan, 656 So.2d 1228 (Ala.Civ.App.1995). However, the Comment to the child-support guidelines at Rule 32, Ala. R. Jud. Admin., states that it is assumed that the custodial parent will take the income-tax exemption for the child in his or her custody. Therefore, we also reverse as to this issue and remand for the trial court to either award the exemption to the wife or state its reasons for awarding it to the husband. See K.H.L. v. K.G.M., 782 So.2d 804 (Ala.Civ.App.2000) (if the trial court elects to deviate from the Rule 32 guidelines by awarding the tax exemption to the noncustodial parent, it must comply with Rule 32(A)(ii), by stating its reasons for doing so).

We reverse the judgment of the trial court insofar as it failed to reserve the issue of alimony and insofar as it awarded the income-tax-dependency exemption to the husband; in all other respects, we affirm the judgment. We remand the case for proceedings consistent with this opinion.

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

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