author: KING, P.J.,

text:
    Jennifer Nicole BRITT and Larry Wayne Doubleday, Appellants, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01548-COA.
    Court of Appeals of Mississippi.
    May 6, 2003.

      Sarah C. Jubb, Sardis, David Clay Van-derburg, attorneys for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before KING, P.J., THOMAS and CHANDLER, JJ.
   KING, P.J.,

for the court.

¶ 1. Jennifer Nicole Britt and Larry Wayne Doubleday were tried together and convicted of felony child abuse in the Circuit Court of the Second Judicial District of Panola County. They were each sentenced to twenty years in the custody of the Mississippi Department of Corrections. Britt and Doubleday bring separate appeals. They raise the following issues which are cited verbatim. Britt’s issues:

A. The court erred in allowing hearsay statements made by Steven Britt to: John Britt, Betty Britt, Jimmy McCloud, Batesville Police Office; and Tina Turner, Department of Human Services, Social Worker.
B. The Court erred in determining that Steven Britt and Summer Elmore were unavailable witnesses. Dr. Snow was a psychologist and was allowed to play a video of the child, Steven Britt. Defendant objected on hearsay and relevancy. The Defendant was denied her right of confrontation of witnesses and confrontation of accusers; Defendant was denied rights of cross examination of her accusers.

Doubleday’s issues:

I. Did the trial court abuse its discretion by declaring the children unavailable as witnesses thereby denying Appellant Larry Wayne Doubleday his right to confront and cross examine his accusers?
II. Were the statements made by the children to John Britt, Jimmy McCloud and Tina Turner inadmissible hearsay regardless of the children’s availability as witnesses?

FACTS

¶ 2. The facts, according to the State’s proof, indicate that in September 2000, two year old Stephen Britt and his five year old sister, Summer Elmore, lived primarily with their father, John Britt, Jr. and his parents, John Britt, Sr. and Betty Britt. The children’s mother, Jennifer Britt, who, though still married to John Britt, Jr., lived with her boyfriend, Larry Doubleday, and their infant son, Zachary. On alternate weekends, Jennifer would have Stephen and Summer for visitation beginning on Friday afternoon and continuing until Sunday afternoon. The children would be delivered to their mother at a Batesville convenience store named Rascals. Such was the situation on the weekend beginning Friday, September 22, 2000. The children had been picked up as usual by their mother and were to remain with her until Sunday afternoon; however, at noon on Saturday Jennifer called John Britt, Sr. at his place of business and demanded that the children’s father come and get Stephen. She claimed that Stephen had fallen and injured himself and was out of control. Mr. Britt, Sr. explained that the children’s father was not there.

¶ 3. At approximately 3:00 p.m. Mr. and Mrs. Britt, Sr. closed their business and went home. Within a very short period of time they received calls from three different individuals, including Becky Elmore, Jennifer Britt’s sister, and Betty Hill, Doubleday’s sister, each of whom indicated that the Britts needed to get the children. Jennifer also called again and informed the Britts that she was at Rascals with the children and demanded that they come and get them.

¶ 4. Fearing the worst, the Britts called the Batesville Police Department and requested that an officer meet them at Rascals. There was no officer at Rascals when the Britts arrived so Mrs. Britt went inside to again call for assistance. Jennifer and Doubleday were there with all three children. Jennifer hurriedly put Stephen and Summer and their clothes in Mr. Britt’s car and started to leave. Mr. Britt, Sr. informed Jennifer that the Batesville Police Department had been called and an officer was on the way and would want to talk to her. Jennifer became irate and began to use profane language and declared that, “I didn’t beat my gd kids. I don’t care what they say.” She and Doubleday then drove off.

¶ 5. Stephen’s face and head were covered with bruises and when Mrs. Britt asked what happened to him he responded that “mama and Larry Wayne” had beaten him. Moments later, Batesville Police Officer Jimmy McCloud arrived. The officer took one look at Stephen, and advised the Britts to take the child to the emergency room. On the way to the hospital Summer also told the Britts that her “mama and Larry Wayne” had beaten Stephen.

¶ 6. Dr. William Haire, the physician who examined and treated Stephen in the emergency room, testified that Stephen had extensive bruises over the entire scalp, his right ear, his forehead, his eyes, his left posterior shoulder, and both hips. Dr. Haire further testified that the left side of Stephen’s face was severely bruised and swollen. Dr. Brad Dye, an ear, nose, and throat specialist to whom Stephen was referred for evaluation of his facial injuries, testified that Stephen had multiple facial bruises both on his forehead, around both eyes, and around both cheeks. Tina Turner, a Department of Human Services social worker assigned to the case, testified that both Stephen and Summer told her that “mama and Larry Wayne” had caused Stephen’s injuries.

¶ 7. After their arrest, Britt and Doubleday initially blamed each other. In her statement to the police, Britt stated that Doubleday had beaten Stephen and that she was afraid of Doubleday. She admitted having spanked the child but claimed not to have spanked hard enough to leave a bruise. Doubleday, in his statement to the police, denied any responsibility for Stephen’s injuries. While refusing to directly accuse Jennifer, he made several statements that implicated her in the beating.

Analysis of Jennifer Britt’s Issues

I. Hearsay statements

¶ 8. In Jennifer Britt’s first issue, she alleges that it was inadmissible hearsay for the trial court to allow several of the witnesses to give testimony concerning what the children said about who caused the injuries to Stephen. Britt claims that since the children were declared unavailable as witnesses by the trial court, “particularized guarantees of trustworthiness” needed to be shown from the “totality of circumstances, including only those relevant circumstances that surround making of statement and that render declarent [sic] worthy of belief.” She cites to Miller v. State, 473 So.2d 945 (Miss.1985), for the proposition that a police officer’s testimony that a robbery suspect was identified by a third party not present in the courtroom and not available to be confronted and cross-examined violated the defendant’s right of confrontation. This is the full extent of Britt’s argument on this issue.

¶ 9. The State, understandably, counters that Britt’s “argument” is in reality no argument at all and cannot form the basis for reversal. The State cites the well-established principle that, “[i]t is the duty of counsel to make more than an assertion; they should state reasons for their propositions, and cite authorities in their support.” Johnson v. State, 154 Miss. 512, 513, 122 So. 529, 529 (1929). There is little more that this Court can add to the State’s response except to say that the issue is barred for failure to support the argument with “citations to the authorities, statutes and parts of the record relied upon.” M.R.A.P. 28(a)(6).

II. Unavailability of the children as witnesses.

¶ 10. The argument on Britt’s second issue suffers from the same shortcomings as the argument on her first issue. She alleges error on the part of the trial court in determining that Stephen and Summer were unavailable as witnesses and claims that it resulted in the denial of her rights of confrontation and cross-examination of her accusers. Britt fails to cite to any case or statutory authority and fails to support her assertions with any kind of argument or logic or reason, she merely makes allegations of error.

¶ 11. She concludes by quoting from article 3, section 26 of the Mississippi Constitution which provides that in a criminal prosecution for rape, adultery, fornication, sodomy, or crime against nature the trial court, in its discretion, may exclude from the courtroom all persons except those necessary to conduct the trial. On the basis of that provision Britt claims that the trial court erred by declaring the children unavailable rather than clearing the courtroom of everyone except those persons necessary to conduct the trial. This argument totally ignores the fact that Britt was not prosecuted for any of those crimes. Needless to say, this issue has no merit.

Analysis of Larry Doubleday’s Issues

I. Unavailability of the children as witnesses.

¶ 12. Doubleday basically makes the same allegations of error as Britt; however, he does a more substantial job of supporting his claims. Doubleday claims that the trial court committed reversible error in finding that Stephen Britt and Summer Elmore were unavailable as witnesses. The trial court found that both children were unavailable as witnesses under the provisions of M.R.E. 804(a)(6) which provides that a declarant is unavailable in the following situation:

(6) In the case of a child, because of the substantial likelihood that the emotional or psychological health of the witness would be substantially impaired if the child had to testify in the physical presence of the accused.

The trial court ruled that the overall testimony of Dr. Snow, a licensed, professional counselor and professor at the University of Mississippi, who was accepted by the court as an expert in the area of child abuse, and who was seeing the children on a regular basis in play therapy, made it clear to the court that there would be substantial impairment of the children’s psychological health if they were compelled to testify in the presence of Britt and Doubleday.

¶ 13. Doubleday attempts to persuade this Court that Dr. Snow’s testimony was to the effect that the problem the children would have in testifying had more to do with the atmosphere of the courtroom itself rather than the presence of the appellants, and, as such, would not support a finding of unavailability under Rule 804(a)(6). The record indicates that Dr. Snow actually testified that, “asking these children to be in front of two adults who they were being asked to accuse of something would be traumatizing in and of itself, whether it was in a courtroom or wherever if the adults were present.”

¶ 14. The abuse of discretion standard is applied when considering a lower court’s decision that a witness is unavailable, and the trial judge’s determination will not be disturbed on appeal unless the appellate court finds that the trial judge abused his discretion. Naylor v. State, 759 So.2d 406, 408(¶ 5) (Miss.2000). This Court finds that the trial court was entitled to rely on the uncontested testimony of the expert and did not abuse its discretion in finding that the children were unavailable within the meaning of M.R.E. 804(a)(6).

¶ 15. Doubleday also contends that the State failed to provide adequate notice of its contention that the children were unavailable as required by M.R.E. 804(b)(5). This matter was raised in pretrial motions on the day of the trial. Britt and Doubleday had initially been indicted in the First Judicial District of Panola County. The crimes charged had been committed in the Second Judicial District of Panola County. When this discrepancy was discovered, the original indictment was dismissed and Britt and Doubleday were re-indicted in the Second Judicial District. It is undisputed that the State gave the required M.R.E. 804(b)(5) notice under the first indictment. Britt and Doubleday received this notice approximately five months before they were brought to trial. The trial court ruled that the notice under the dismissed indictment was sufficient to fulfill the notice requirement under M.R.E. 804(b)(5). This Court agrees.

¶ 16. As noted by the State in its brief, the supreme court has held that it is the trial court’s duty to determine whether notice is sufficient under an identically-worded notice requirement under M.R.E. 803. Cummins v. State, 515 So.2d 869, 873 (Miss.1987) (overruled on other grounds by Morgan v. State, 703 So.2d 832, 841 (Miss.1997)). The Cummins court further held that the trial court is usually given great latitude in making that determination. Id. This issue has no merit.

II. Admissibility of the children’s statements

¶ 17. Doubleday premises this argument on a comment by the trial court judge during pre-trial motions to the effect that the statements by the children were admissible under either M.R.E. 803(1), present sense impression, or (2), excited utterance. While conceding that the court ultimately did not base its decision to admit the statements on either 803(1) or (2), but rather, on the basis of the unavailability exception of M.R.E. 804(a)(6), Doubleday, nevertheless, argues the inadmissibility of the statements on the basis of M.R.E. 803(1) and (2). Having previously found no abuse of discretion in the trial court’s holding that the children’s statements were admissible under M.R.E. 804(a)(6) this issue is rendered moot.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF PANOLA COUNTY OF CONVICTION OF FELONY CHILD ABUSE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS TO EACH APPELLANT IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO PANOLA COUNTY.

McMILLIN, C.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., CONCURS IN RESULT ONLY.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Ex parte PIKEVILLE COUNTRY CLUB and Harry Green. (In re Hugghins Sod Farms, Inc. v. Pikeville Country Club et al.)
    1011244.
    Supreme Court of Alabama.
    Sept. 13, 2002.
    Daniel S. Wolter of Gaines, Wolter & Kinney, P.C., Birmingham, for petitioner Pikeville Country Club.
    Jeffery A. Mobley of Lowe, Mobley & Lowe, Haleyville, and Thomas B. Albritton of Albrittons, Clifton, Alverson, Moody & Bowden, P.C., Andalusia, for petitioner Harry Green.
    Ab Powell III of The Powell Law Firm, P.C., Andalusia, for respondent.
   WOODALL, Justice.

Pikeville Country Club, Inc. (“the Club”), and Harry Green, the defendants in an action pending in the Covington Circuit Court, petitioned for a writ of mandamus directing the circuit court to transfer the action to the Marion Circuit Court. We grant the petition and issue the writ.

I.

The relevant facts are undisputed. The Club is an Alabama corporation located in Marion County. The Club has never done business in Covington County.

Harry Green, a resident of Marion County, is a licensed, practicing attorney. Green’s law office is located in Marion County. He has never practiced law in Covington County.

Hugghins Sod Farms, Inc. (“Hug-ghins”), the plaintiff in this action, is a corporation whose principal place of business is in Covington County. Hugghins supplied sod to Southern Golf Development, Inc. (“Southern Golf’), the general contractor for renovations at the Club.

By a letter dated August 17, 1998, a Covington County attorney, acting on behalf of Hugghins, advised the Club that Southern Golf had not paid Hugghins for the sod used in the renovations at the Club and that, therefore, Hugghins was asserting a lien against any unpaid balance due Southern Golf by the Club.

The Club asked Green to respond to the letter from Hugghins’s attorney. Green responded by a letter dated August 26, 1998, stating that no moneys were due Southern Golf and that final payment to Southern Golf had been made before Hug-ghins’s attorney contacted the Club. Green drafted the letter in his office in Marion County, and it was mailed from Marion County to Covington County.

After learning of Green’s letter, Hug-ghins decided that it should not proceed to perfect a lien upon the Club’s property in Marion County. Hugghins then proceeded to attempt to collect from Southern Golf the balance due it. On September 28, 1999, a Southern Golf employee gave deposition testimony indicating to Hugghins that the Club made its final payment to Southern Golf after August 26, 1998, the date of Green’s letter.

II.

On September 26, 2001, Hugghins sued the Club and Green in the Covington Circuit Court. According to Hugghins, “the ‘thrust of the complaint’ is in tort for misrepresentation and fraud.” Response to petition, at 6. The complaint alleges that Green’s letter contained misrepresentations; no other misrepresentations are alleged.

On October 24, 2001, the Club and Green filed motions to transfer the case to the Marion Circuit Court, contending that venue was not proper in the Covington Circuit Court. The Club’s motion was supported by an affidavit of its president; Green’s motion was later supported by his affidavit.

The motions to transfer were denied on February 13, 2002. The Club and Green jointly filed a “motion to reconsider” on March 13, 2002. The trial court denied that motion on March 15, 2002. On March 26, 2002, the Club and Green filed this petition for a writ of mandamus.

III.

“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 Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1999) (citing Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala.1986)).
“ ‘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 Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala.2000).

In their petition, the Club and Green argue that venue in Covington County is improper and that, therefore, the trial court erred in denying their motions to transfer the ease to Marion County, where, they say, venue is proper. They ask this Court to issue a writ of mandamus directing the trial court to transfer this case to Marion County. They are entitled to that relief.

IV.

Hugghins claims in its complaint and in response to the petition that venue is proper in the Covington Circuit Court, because Green’s letter, “which is alleged to be false, [which was] relied upon by [Hug-ghins], and [which is] actionable, was received via United States mail in Covington County, Alabama, and was acted upon by [Hugghins] in Covington County, Alabama.” The parties agree that the Cov-ington Circuit Court is an appropriate venue for this civil action against the Club, only if, under these facts, Covington County is “the county in which a substantial part of the events or omissions giving rise to the claim occurred.” See § 6 — 3—7(a)(1), Ala.Code 1975. Similarly, the parties agree that the Covington Circuit Court is an appropriate venue for this civil action against Green, only if, under -these facts, Covington County is “the county in which the act or omission complained of may have been done or may have occurred.” See § 6-3-2(a)(3), Ala.Code 1975. We hold that venue for this civil action is not proper in Covington County under either of those statutes.

In Ex parte SouthTrust Bank of Tuscaloosa County, N.A., 619 So.2d 1356 (Ala.1993), fraud was alleged, and this Court, interpreting an earlier version of § 6-3-7, held that the plaintiffs alleged injuries occurred in Tuscaloosa County, where the defendant made telephone calls and sent mail to the plaintiff, not in Montgomery County, where the plaintiff received those communications. The Court explained:

“Because SouthTrust Tuscaloosa is a domestic corporation, the venue statute to be applied here is that portion of Ala.Code 1975, § 6-3-7, relating to domestic corporations. It provides:
“ ‘[A] domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose; provided, that all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiffs residence.’
“Pritchett alleges fraud and bad faith, which are ‘personal injury’ claims for the purpose of determining proper venue. Ex parte TranSouth Financial Corp., 608 So.2d 385 (Ala.1992). See, also, Ex parte First Alabama Bank of Montgomery, N.A., 461 So.2d 1315 (Ala.1984). We must first determine, therefore, whether the alleged ‘injury’ to Pritchett occurred in Montgomery County.
“SouthTrust Tuscaloosa’s alleged misrepresentations to Pritchett about the actual value of the BMW were made through telephone calls and through mail sent from Tuscaloosa; however, Pritchett points out that he received these communications in Montgomery, and he concludes that the ‘injuries’ thus ‘occurred’ in Montgomery County. In Age-Herald Publishing Co. v. Huddleston, 207 Ala. 40, 92 So. 193 (1922), a libel action, this Court established that the term ‘injury’for purposes of § 6-3-7 refers to the wrongful act or omission of the corporate defendant, not to the resulting damage to the plaintiff, and thus determined that venue for such an injury is proper where a wrongful act was committed, not where the damage resulted ....
“Because SouthTrust Tuscaloosa made the alleged misrepresentations in Tuscaloosa County, Pritchett’s alleged injuries did not ‘occur’ in Montgomery County....”

Ex parte SouthTrust Bank, 619 So.2d at 1357-58 (emphasis added). We find that analysis particularly persuasive as we interpret the current version of § 6-3-7(a)(1).

Section 6-3-7(a)(l) provides that a civil action against a corporation may be brought “[i]n the county in which a substantial part of the events or omissions giving rise to the claim occurred.” We construe “the events or omissions giving rise to the claim” to be a clear reference to the wrongful acts or omissions of the corporate defendant. Having so construed the statute, we see no reason to abandon the holding of Ex parte SouthTrust Bank. Therefore, we conclude that venue in this case is improper in Covington County as to the Club, because the event giving rise to Hugghins’s claims — the mailing of the letter containing the alleged misrepresentations — occurred in Marion County, where the letter was mailed, and not in Covington County, where Hugghins received the letter. See also Ex parte Wiginton, 743 So.2d 1071 (Ala.1999).

Insofar as Green is concerned, it would be illogical and inconsistent to conclude that his “act or omission” occurred anywhere other than in Marion County, from where he mailed the letter made the basis of this action. Hugghins’s alleged reliance on that letter in Covington County is not the “act or omission” of Green.

In opposition to the petition for the writ of mandamus, Hugghins cites only one Alabama case, Medical Service Administration v. Dickerson, 362 So.2d 906 (Ala.1978). The Club and Green argue that Medical Service Administration is inconsistent with this Court’s holding in Ex parte SouthTrust Bank and that it should be overruled. We agree, and we overrule Medical Service Administration to the extent that it is inconsistent with Ex parte SouthTrust Bank or this opinion.

V.

We conclude that the Club and Green have a clear legal right to an order transferring this action to the Marion Circuit Court. Therefore, we grant their petition, and issue a writ of mandamus directing the Covington Circuit Court to enter an order transferring this action to the Marion Circuit Court.

PETITION GRANTED; WRIT ISSUED.

HOUSTON, LYONS, BROWN, JOHNSTONE, and STUART, JJ., concur.

SEE, J., concurs in the result.

MOORE, C.J., and HARWOOD, J., dissent.


text:
    Genevieve DENMARK and Jed Denmark, Jr. v. MERCANTILE STORES COMPANY, INC., a/k/a Dillard’s, Inc.
    1010849.
    Supreme Court of Alabama.
    Sept. 13, 2002.

      Linda F. Clausen and Marni Reagan of Gardberg, Knopf & Clausen, P.C., Mobile, for appellants.
    Dennis McKenna of Prince, McKean, McKenna & Broughton, Mobile, for appel-lee.
   WOODALL, Justice.

Genevieve Denmark and her husband, Jed W. Denmark, Jr., appeal from a summary judgment in favor of “Gayfer’s Montgomery Fair, Co.,” and its reputed “successor in interest,” Mercantile Stores Company, Inc., a/k/a Dillard’s, or Dillard’s, Inc. (hereinafter referred to as “Mercantile”), in the Denmarks’ action seeking damages for injuries Genevieve Denmark allegedly suffered when she tripped and fell on Mercantile’s premises. We reverse and remand.

This action began on December 18,1998, when the Denmarks filed a two-count complaint against Mercantile. The complaint alleged that Genevieve Denmark was injured while shopping at Mercantile’s store in Springdale Mall, when she “tripped [over] a roll of plastic shopping bags that was left lying on the floor by [Mercantile].” The complaint alleged that Mercantile had been negligent, wanton, and reckless and included a loss-of-consortium claim by Jed. It sought compensatory and punitive damages, based on Genevieve’s injuries and Jed’s loss of consortium. Mercantile subsequently moved for a summary judgment, which the trial court granted; the Den-marks appealed.

On appeal, Mercantile contends that the trial court “was correct in granting summary judgment ... in that the [Denmarks] failed to adduce any evidence that [Mercantile] had notice or knowledge or should have had notice or knowledge of an alleged dangerous condition.” Mercantile’s Brief, at 8. Next, it contends that the trial court was correct in entering the summary judgment “in that the evidence establishes conclusively that the alleged condition complained of was open and obvious and that [Genevieve Denmark] knew or should have known of the nature of the condition complained of through the exercise of reasonable care.” Mercantile’s Brief, at 3. Mercantile further states:

“When you get right down to brass tacks in this case, ... this is an accident which occurred when ... Genevieve Denmark, standing in front of a display rack of blouses for a significant amount of time, all the while standing almost on top of a two and a half to three foot long, eight inch in diameter roll of either white or turquoise bags, finished looking at blouses, turned to her right without looking and immediately tripped over the bags causing her to fall to the floor. Nothing blocked her view of the bags. The evidence shows only that Mrs. Denmark failed to exercise reasonable and due care for her own safety by failing to watch were she was going and by failing to observe the large brightly colored bags which she asserts had been at her feet for some time.”

Mercantile’s Brief, at 5. We address each of these contentions in separate sections.

I. Notice to Mercantile

A store owner’s duty is well-established. That duty is “to exercise reasonable care to provide and maintain reasonably safe premises for the use of his customers.” Maddox v. K-Mart Corp., 565 So.2d 14,16 (Ala.1990). Consequently, injured “plaintiffs must prove that the injury was proximately caused by the negligence of [the store owner] or one of its servants or employees. Actual or constructive notice of the presence of the substance [or instrumentality that caused the injury] must be proven before [the store owner] can be held responsible for the injury.” Id. Where, however, “‘“the defendant or his employees have affirmatively created the dangerous condition, [the] plaintiff need not introduce evidence that [the] defendant had actual or constructive knowledge of the hazard. Under such circumstances, the courts presume notice.” ’ ” Wal-Mart Stores, Inc. v. Rolin, 813 So.2d 861, 864 (Ala.2001) (emphasis added) (quoting Wal-Mart Stores, Inc. v. McClinton, 631 So.2d 232, 234 (Ala.1993), quoting in turn Joseph A. Page, The Law of Premises Liability § 7.11 at 169 (2d ed.1988)). See also Mims v. Jack’s Restaurant, 565 So.2d 609 (Ala.1990). This Court has held that where a shopper trips over merchandise protruding from a box that is part of a “barbeque grill display” evidently arranged by store employees, the store owner’s knowledge of a hazardous condition is presumed. Rolin, 813 So.2d at 865.

The procedure on a summary-judgment motion is equally well-established. “On a motion for a summary judgment, the burden is initially on the movant to make a prima facie showing that there is no genuine issue of material fact (i.e., that there is no dispute as to any material fact) and that the movant is entitled to a judgment as a matter of law.” Attorneys Ins. Mut. of Alabama, Inc. v. Smith, Blocker & Lowther, P.C., 703 So.2d 866, 868 (Ala.1996); Rule 56, Ala. R. Civ. P. See McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992). Thus, “[t]he burden to present evidence that will establish a genuine issue of material fact does not shift to the nonmovant unless the movant [first] satisfies its burden.” O’Barr v. Oberlander, 679 So.2d 261, 263 (Ala.Civ.App.1996).

In connection with its burden, Mercantile filed in support of its summary-judgment motion a “narrative statement of uncontested facts,” based on the deposition testimonies of Genevieve Denmark and her two sons, Richard and Jed Denmark III, who accompanied her on the day of the accident. That statement provides, in pertinent part:

“On December 23, 1996, Genevieve Denmark, accompanied by her two adult children, was shopping at [Mercantile’s] store in Springdale Mall. Mrs. Denmark stopped in the women’s sportswear department to look at blouses on a hanging rack. The hanging rack was located near a checkout counter and located on the carpeted display floor. After looking at the blouses, Mrs. Denmark turned and immediately fell to the floor. She later determined that [she] had fallen over a roll of [plastic garment] bags on the floor. Mrs. Denmark denied ever seeing the bags before she fell. Prior to her fall, she had been standing facing the rack of blouses for an unknown period of time at approximately arm’s length distance from the blouses. She does not know of anything that would have obstructed her view of the roll of bags.
“Mrs. Denmark was uncertain of the dimensions of the bags over which she fell. After she fell, her son, Richard Denmark, came to her assistance. Neither she nor her sons Richard or Jed ever spoke with the sales associate at the counter near where the accident occurred prior to leaving the store....
“Richard Denmark was standing approximately 15 feet from his mother when he saw her fall. He could not see what caused the fall. He went to assist his mother and when he got closer to where she had fallen, saw that she had fallen over a roll of bags on the floor. He estimates that the roll of bags was approximately 2 or S feet■ in length and somewhere between 6 to 8 inches in diameter. He cannot recall what color the bags were. He is not aware of anything that would have prevented his mother from seeing the bags. He accompanied his mother from the accident to [a nearby department store] where she was overcome. He returned to [Mercantile’s store] in the company of a [Mercantile] employee who came to the [nearby store] concerning the accident. That was the first time he or anyone in his family had reported the fall to [Mercantile]. When he returned to the scene of the accident, the bags had been moved. He stated that the [sales] associate advised him that the bags were not supposed to be outside the checkout counter and that she had put the bags behind the checkout counter. Richard Denmark does not know anything about who put the bags in the display area or how the bags came to be in the display area. He does not know how long they had been there. He does not believe that anyone knew that the bags were in the display area. He did not see anything that obstructed his view of the bags.
“Jed Denmark, the Plaintiffs older son, accompanied his mother to the store and witnessed the fall. He did not have an unobstructed view of her fall. He watched as his mother, after having looked at blouses, turned, stepped back and immediately fell. Neither he nor his brother or mother ever spoke to the sales associates prior to leaving the store and going to [the nearby store]. He left [Mercantile’s] and went to [the nearby store] to finish Christmas shopping. Jed Denmark testified that his mother tripped over a roll of plastic bags which he saw for the first time after the accident. He testified while he could not recall the color of the bags that it ‘seemed to him that they were either light blue or dark, I can’t recall.’ He testified that the roll of bags [was] approximately k. feet long and ... between S and k inches in diameter. He does not have any idea how the bags came to be on the display floor. He does not have any idea who put them there. He does not have any knowledge one way or the other whether or not anyone at [Mercantile] knew the bags were on the display floor at the time his mother fell.”

(Emphasis in original; citations to the record omitted.)

This statement does not satisfy Mercantile’s burden. On the contrary, it tends to establish only that the roll of garment bags over which Denmark tripped was under the custody and control of Mercantile and had been placed in the display area by a Mercantile employee. Indeed, the sales associate working in the immediate area of the accident told Richard Denmark that the roll was “not supposed to be outside the checkout counter.” Thus, Mercantile offered no evidence indicating that the roll of garment bags was ever used or handled by anyone, other than Mercantile employees. Consequently, the burden to present evidence creating a genuine issue of material fact never shifted to the Denmarks.

II. Open-and-Obvious Defense

A condition is “open and obvious” when it is “known to the [plaintiff] or should have been observed by the [plaintiff] in the exercise of reasonable care.” Quillen v. Quillen, 388 So.2d 985, 989 (Ala.1980). “The entire basis of [a store owner’s] liability rests upon [its] superior knowledge of the danger which causes the [customer’s] injuries. Therefore, if that superior knowledge is lacking, as when the danger is obvious, the [store owner] cannot be held liable.” Id. (citation omitted).

In this connection, Mercantile argues: “To prevail, ... the Plaintiffs must also establish that Mrs. Denmark was ignorant or should have been ignorant of the condition she alleges to have been dangerous.” Mercantile’s Brief, at 22. However, Mercantile’s argument that the condition that caused Mrs. Denmark’s fall was open and obvious is an affirmative defense, on which it bears the ultimate burden of proof. See Ex parte Neese, 819 So.2d 584 (Ala.2001); Furgerson v. Dresser Indus., Inc., 438 So.2d 732, 734 (Ala.1983); see also Hale v. Sequoyah Caverns & Campgrounds, Inc., 612 So.2d 1162, 1165 (Ala.1992) (“the traditional common-law ‘open and obvious danger’ defense ... completely bars recovery if the danger is known by, or is obvious to, the plaintiff’) (Hornsby, C.J., concurring in the result); Vick v. H.S.I. Mgmt., Inc., 507 So.2d 433, 435 (Ala.1987) (“ ‘[T]he evidence, including evidence bearing on the defense of “open and obvious danger,” viewed in light of the applicable substantive law, presents genuine issues of fact.’ ”); Coggin v. Starke Bros. Realty Co., 391 So.2d 111, 113 (Ala.1980); Ford v. Bynum Livestock & Comm’n Co., 674 So.2d 600, 603 (Ala.Civ.App.1995) (“dispositive issue [is] whether the evidence conclusively showed that [the plaintiff] knew of, and appreciated, a dangerous condition so as to give rise to the ‘open and obvious danger’ defense”).

Only “ ‘[w]hen there is no genuine issue of material fact as to any element of an affirmative defense, ... and it is shown that the defendant is entitled to a judgment as a matter of lav^ ” is a summary judgment proper. Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 445 (Ala.1999) (quoting Bechtel v. Crown Central Petroleum Corp., 495 So.2d 1052, 1053 (Ala.1986)). “ ‘If there is a genuine issue of material fact as to any element of the affirmative defense, summary judgment is inappropriate.’ ” Id.

Moreover, “ ‘[t]he manner in which the movant’s burden of production is met depends upon which party has the burden of proof ... at trial.’ ” Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)). If, as is the case when the movant is the defendant asserting an affirmative defense, “ ‘the movant has the burden of proof at trial, the mov-ant must support his motion with credible evidence, using any of the material specified in Rule 56(c), [Ala.] R. Civ. P. (“pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits”).’ ” 769 So.2d at 909. “ ‘The movant’s proof must be such that he would be entitled to a directed verdict if this evidence was not controverted at trial.’ ” Id. In other words, “when the movant has the burden [of proof at trial], its own submissions in support of the motion must entitle it to judgment as a matter of law.” Albee Tomato, Inc. v. A.B. Shalom Produce Corp., 155 F.3d 612, 618 (2d Cir.1998) (emphasis added). See also Equal Employment Opportunity Comm’n v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49 (1st Cir.2002); Rushing v. Kansas City Southern Ry., 185 F.3d 496 (5th Cir.1999); Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir.1986); Calderone v. United States, 799 F.2d 254 (6th Cir.1986). Whether a condition is open and obvious is generally a question for the jury. Howard v. Andy’s Store for Men, 757 So.2d 1208, 1211 (Ala.Civ.App.2000).

Thus, Mercantile states the respective burdens backwards. More properly stated, Mercantile must “establish that Mrs. Denmark was [not ] ignorant or should [not] have been ignorant of the condition she alleges to have been dangerous.” Mercantile’s Brief, at 22. This it did not do. The mere testimony of the Denmarks’ children that Mrs. Denmark could have seen the roll of bags under certain circumstances does not satisfy Mercantile’s burden of proof on its affirmative defense. This is especially true in light of evidence indicating that Mercantile had superior knowledge of the location of the roll of bags.

Indeed, the record contains the deposition testimony of Brian Hastings, Mercantile’s “loss-prevention specialist,” who stated that the roll on which Mrs. Denmark allegedly tripped would “[n]ormally ... be on a pole,” designed to hold the rolls beside the checkout stand, and that the “stock boys” or “receiving crews” were “mostly” responsible for placing the roll on the spool. By contrast, there was no evidence indicating that Mrs. Denmark knew the roll existed or that she expected it to be in the area in which she was shopping.

III. Conclusion

For these reasons, the trial court erred in entering the summary judgment for Mercantile. That judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion,

REVERSED AND REMANDED.

HOUSTON, LYONS, JOHNSTONE, and HARWOOD, JJ., concur.

MOORE, C.J., and BROWN and STUART, JJ., dissent.

      . The correct names of these entities and their precise relationships are not clear from the record. These obscurities are, however, of no consequence to this opinion.


author: SEE, Justice. JOHNSTONE, Justice

text:
    GONZALEZ, LLC v. Roy DiVINCENTI and Professional Forensic Services, Inc. Roy DiVincenti and Professional Forensic Services, Inc. v. Gonzalez, LLC.
    1010015 and 1011011.
    Supreme Court of Alabama.
    Sept. 13, 2002.

      David F. Daniell of Daniell, Upton, Perry & Morris, P.C., Mobile, for appellant/cross-appellee Gonzalez, LLC.
    Mark E. Spear and John M. Hunter of Richardson, Spear & Spear, P.C., Mobile, for appellee/cross-appellants Roy DiVin-centi and Professional Forensic Services, Inc.
   SEE, Justice.

Gonzalez, LLC, owns the former Scottish Rite Temple in Mobile County. After the Temple allegedly suffered damage in 1997 from Hurricane Danny, Gonzalez, LLC, filed a claim with TIG Insurance Company and K & K Insurance Group under its insurance policy, which provided coverage for wind and hurricane damage. Gonzalez, LLC, claims that its insurance agent, Mark Rowley, repeatedly assured it that its claim would be paid. In 1998, while Gonzalez, LLC, was waiting for payment on the claims resulting from damage caused by Hurricane Danny, Hurricane Georges made landfall, allegedly causing more damage to the Temple. .Gonzalez, LLC, filed a claim for the damage caused by Hurricane Georges, and this claim was promptly denied. After Gonzalez, LLC, discovered that payment was not forthcoming on its claims for the damage from Hurricane Danny and after the claim for the damage from Hurricane Georges had been denied, Gonzalez, LLC, in 1999 sued its insurance agent, Mark Rowley; its insurance agency, Oakleigh Insurance Agency; its insurance providers, K & K Insurance Group and TIG Insurance Company; several fictitiously named parties; and the agents or representatives of all the defendants. Gonzalez, LLC, alleged negligent failure to report a claim; wanton failure to report a claim; fraud in misrepresenting that the hurricane-damage claim would be paid; breach of contract for failure to investigate, handle, or pay the covered loss; negligent failure to supervise agents and representatives; and bad faith in failing to investigate and refusing to pay claims.

After Gonzalez, LLC, filed this action, the defendants hired Professional Forensic Services, Inc. (“PFS”), and its president, Roy DiVincenti, to perform forensic testing on the roof of the Temple to determine what damage, if any, had been done by wind and rain. Before PFS began testing, Scott Gonzalez, the president of Gonzalez, LLC, signed a release purporting to release PFS from Lability for any damage done to the roof during testing.

The Lability release stated:

“In consideration of TIG Insurance Company, K & K Insurance Group, Badger-Stonewall Insurance Agency and Mark Rowley (hereinafter known as Releasees) bearing responsibility for professional services compensation for forensic engineering investigation and testing performed by Professional Forensic Services, Inc. (hereinafter, ‘PFS’) on the Scottish Rite Temple (hereinafter ‘Property’) with respect to reported claims of wind damage and water intrusion to the Property, the undersigned, Scott Gonzalez, Gonzalez, LLC, and Scottish Rite Temple, hereby fuLy releases both Releasees and PFS from any damages or liability with respect to water intrusion and/or inability to exactly match paint colors and/or aesthetic finish textures, or exposure/releasing of environmental contaminants (NOTE: work will cease immediately, should this occur) associated with the work scope to be performed on the Property by PFS in the sampling of claim-pertinent materials from the Property. Releasors agree to said release based on the understanding that the repairs will be performed by a qualified Lcensed General Contractor and that every attempt wül be made to match the present exterior colors and surface-visible sampling materials from the ‘sampling’ locations. Releasors fully release both Releasees and PFS from any damage or LabLity with respect to any leaks that may arise on the Property as a result of the roof material sampling. Releasors agree to said release based on the understanding that a roofing contractor, Lcensed to practice in the State of Alabama, wül perform the repairs for the sampled locations on the roof. Releasees and PFS agree to contact the Releasors or Releasors’ attorney prior to taking any sample of any claim pertinent material to allow the photographing and cataloging of any such sample. Releasees and PFS also agree to provide a portion of any sample taken to Releasors or Releasors’ attorney.”

After Scott Gonzalez agreed to the terms of the release, PFS tested the roof of the Temple. This testing included inserting numerous nails into the roof at regular intervals. Gonzalez, LLC, claims that inserting the nails into the roof pierced the water barrier in the roof, permitting additional water damage to the roof and the building. Gonzalez, LLC, claims that the additional damage requires that the roof be replaced. PFS, on the other hand, claims that the nails used in testing were pushed in with the inspectors’ thumbs or were “lightly tapped” in with a hammer and that they were not long enough to pierce the water barrier in the roof.

After PFS completed its testing, Gonzalez, LLC, filed an amended complaint, alleging the claims set out above, and including the following allegation:

“14. Suit was filed on July 28, 1999. After filing of suit, TIG, A, B, C, Row-ley, K & K, D, E, F and/or G, began an investigation of the Plaintiffs loss. In June of 2000, during this investigation, TIG, A, B, C, K & K, D, E, F, and/or G, negligently damaged the roof of the Temple, by driving nails through its surface, necessitating extensive repair, for which it has refused to pay.”

After filing this amended complaint, Gonzalez, LLC, agreed to settle the action. The parties signed two different releases, the first dated October 9, 2000; that release read, in part:

“For, and in consideration of the sum of One Hundred Sixty Thousand and no/100 Dollars ... We, Scott Gonzalez, Siobhan Gonzalez [Scott’s wife], and Gonzalez, LLC, of Mobile, Alabama (THE RELEASING PARTIES), do hereby RELEASE AND FOREVER DISCHARGE Mark Rowley, Mark Rowley d/b/a Oakleigh Insurance Agency, Oakleigh Insurance Agency, Inc., and all of their employees and agents, from all claims, liability, and losses, whether heretofore or now existing, or hereafter accruing and/or occurring, arising out of or related, directly, or indirectly, in whole or in part, to the following subject matter:
“The policy of insurance issued by TIG Insurance Company, through Mark Rowley, on or about March 25, 1997, wherein Scott Gonzalez and Siobhan Gonzalez are listed as the Named Insureds; any and all claims for proceeds and/or benefits claimed to have accrued to or for the benefit of the RELEASING PARTIES, or any of them, ... including, but not limited to all events and circumstances related to the purchase of such insurance and/or the presentation of claims for benefits and/or coverage under said insurance as a result of Hurricane Danny and Hurricane Georges in July 1997 and September 1998, respectively, in Mobile County, Alabama, resulting in damage to the Scottish Rite Temple.... The Subject Matter of this Release also includes all claims and issues raised, or which could be raised, in that civil action ... styled Scottish Rite Temple, Scott Gonzalez, Siobhan Gonzalez, and Gonzalez, L.L.C., Plaintiffs v. Badger-Stonewall Insurance Agency, Inc., et al, Defendants.”

The second release of claims, signed by the parties on October 25, 2000, stated, in pertinent part:

“This agreement is intended to effect the extinguishment of all obligations hereafter designated against all parties who were or could have been sued by Plaintiffs, arising from Plaintiffs’ ownership of the Scottish Rite Temple (‘Temple’) and/or arising from any damage resulting to the Temple from any event whatsoever, whether weather related or non-weather related.
‘‘Whereas, after such mediation and settlement efforts, Plaintiffs agreed to dismiss their claims with prejudice as to TIG Insurance Co. and K & K Insurance Group and to release all claims and all potential claims against TIG Insurance Co. and K & K Insurance Group and any other individual or entity affiliated with them and their related business entities, their employees, their officers, their attorneys, and their agents; “2. TIG Insurance Co. and K & K Insurance Group will pay collectively a total sum of $840,000 to [attorneys for Gonzalez, LLC]....
“11. Reservation of Claim: Notwithstanding any other provision or agreement in this Final Release and Indemnity Agreement, Plaintiffs do not release any claim that they might have against Roy DiVincenti arising solely from Mr. DiVincenti’s alleged actions in placing nails in the roof of the Temple.”

After the settlement of the original action for a combined total payment of $1 million, Gonzalez, LLC, filed the present action against DiVincenti and PFS. After an amendment, the complaint alleged that DiVincenti, as an individual, and PFS were liable under theories of negligence, breach of contract, and misrepresentation or suppression for damages resulting from PFS’s inspection of the Temple’s roof. DiVincen-ti and PFS moved for the payment of attorney fees under the Alabama Litigation Accountability Act, Ala.Code 1975, § 12-19-270 et seq. They later moved for a summary judgment as to all claims against them under the doctrines of res judicata and collateral estoppel. The trial court granted the motion for a summary judgment on August 24, 2001; it did not certify this order as a final judgment under Rule 54(b), Ala. R. Civ. P.

On September 5, 2001, the trial court noted in the case-action log that it was aware that it had not ruled on the motion for attorney fees, and that it thought that reasonable attorney fees were warranted in this case. It, therefore, assigned the previously appointed mediator in the case to determine DiVincenti and PFS’s attorney fees. On September 19, 2001, Gonzalez, LLC, filed a notice of an appeal from the summary judgment, arguing that the trial court erred in entering the summary judgment because, it argues, the doctrines of res judicata and collateral estoppel do not apply in this case. On September 20, 2001, the mediator filed a report regarding the attorney fees. On September 21, 2001, Gonzalez, LLC, requested a hearing on the attorney-fee issue, and DiVincenti and PFS filed a response to the request for an evidentiary hearing. No hearing took place, apparently because Gonzalez, LLC, had filed the notice of appeal in this case.

On February 1, 2002, several months after Gonzalez, LLC, filed its notice of appeal (case no. 1010015), the trial court denied DiVincenti and PFS’s motion for attorney fees. DiVincenti and PFS then appealed from the order denying their motion (ease no. 1Ó11011). The issue whether the trial court retained jurisdiction to rule on the motion for attorney fees was presented in the first appeal. The parties thus had already fully addressed the issue of attorney fees in their briefs to this Court in case no. 1010015; that issue is fully addressed in this opinion. We, therefore, dismiss the appeal in case no. 1011011.

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmov-ant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).”

Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992).

DiVincenti and PFS, as a threshold issue, move to dismiss this appeal as being from a nonfinal order. They contend that because the motion for attorney fees was made before the motion for a summary judgment, because the trial court’s summary judgment was not certified as a final order under Rule 54(b), Ala. R. Civ. P., and because the trial court noted that it had not yet ruled on the motion for attorney fees and had taken steps to do so before the notice of appeal was filed, the trial court retained jurisdiction of the case so that it could rule on the motion for attorney fees. Therefore, they argue, the appeal by Gonzalez, LLC, was an appeal from a nonfinal order and thus should be dismissed. See Rule 54(b), Ala. R. Civ. P.

This Court has attempted to clarify the steps a trial court must take to retain jurisdiction of a case to determine an award of attorney fees. In Meek v. Diversified Products Corp., 575 So.2d 1100 (Ala.1991), this Court held that the trial court did retain jurisdiction to determine an award of attorney fees, stating:

“The trial court specifically granted Diversified’s request [made during a hearing on a summary-judgment motion] to file a written motion and brief. This reserved the court’s jurisdiction of Diversified’s motion and gave ample notice to the plaintiff and his attorney.
“The specific language of the Alabama Litigation Accountability Act, consistent with its intent, provides for the trial court to consider the outcome of the proceedings in determining whether a party’s action was without substantial justification. § 12-19-273(7). The holding of a separate hearing on the motion for an award of attorney fees after the entry of the summary judgment was a proper exercise of discretion by the trial court.”

575 So.2d at 1103. However, other cases have clarified that to retain jurisdiction the court must specifically reserve its continuing jurisdiction.

“When plain language is used in a statute, it must be interpreted to mean exactly what it says. Ex parte Madison County, 406 So.2d 398 (Ala.1981). The plain language of § 12-19-270 states that the court must make its award of attorney’s fees under the [Alabama Litigation Accountability] Act as part of its judgment on the merits of the case, ‘in addition’ to other costs assessed against a frivolous litigant. The statute does not create a new or separate cause of action to be brought after a case is litigated and given a final adjudication on its merits; rather, it indicates that the motion must be made during the pendency of the case.
“As interpreted by the supreme court, the ALAA [Alabama Litigation Accountability Act] provides for the trial court to consider the outcome of the proceedings in determining whether a party’s action was without substantial justification. For this reason, it is within the court’s discretion to hold a separate hearing on an ALAA petition after the entry of final judgment on the merits, provided that the court retained jurisdiction to do so. Meek [v. Diversified Prods. Corp., 575 So.2d 1100 (Ala.1991) ]. Otherwise, a final judgment puts an end to all controversies litigated or which ought to have been litigated within the particular controversy. Vacalis v. [Lowry], 279 Ala. 264, 184 So.2d 345 (1966).”

Baker v. Williams Bros., 601 So.2d 110, 112 (Ala.Civ.App.1992). Jurisdiction to award attorney fees was deemed not to have been reserved in Donnell Trucking Co. v. Shows, 659 So.2d 667, 669 (Ala.Civ.App.1995). In that case, the Court of Civil Appeals stated:

“In the present case the motions for attorney fees were pending at the time that the trial court issued its orders of June 16, 1993. This court would note that neither of these orders contained a ruling on the pending motions for attorney fees and that the trial court failed to retain jurisdiction to consider the motions at a later date....
“While Donnell’s argument that it did everything that it could to have the matter heard can be appreciated, it is not persuasive. Since the [Alabama Litigation Accountability] Act provides that the trial court shall award the attorney fees as a part of its judgment, it was incumbent upon Donnell to have the trial court either rule on the pending motion for attorney fees when it granted its motion for summary judgment or reserve jurisdiction to hear the motion for attorney fees at a later date.
“In light of the above, we cannot say that, under the facts of this case, the trial court retained jurisdiction to hold a separate hearing on the motion for attorney fees after the entry of a final judgment. Consequently, we find that the trial court did not have jurisdiction to hear the motion for attorney fees.”

This case is more like Donnell than it is like Meek or Baker. The motion for attorney fees was pending when the trial court entered the summary judgment, and, when the trial court entered the summary judgment, it made no mention of reserving jurisdiction for a determination of attorney fees. Moreover, DiVincenti and PFS did not ask the trial court to reserve jurisdiction to consider an attorney-fee award. We, therefore, conclude that the summary-judgment order was a final disposition of this case, and that the order Gonzalez, LLC, appeals from is a final order.

On appeal, Gonzalez, LLC, relies on its reservation of claim included in the release signed by the parties on October 25, 2000. This reservation of claim at most might reserve a claim against DiVincenti, not against PFS. See Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So.2d 83, 91 (Ala.1985), citing Nero v. Chastang, 358 So.2d 740 (Ala.Civ.App.1978), for the proposition that “a valid compromise agreement is conclusive only as to those matters which the parties fairly intended to include within its terms, and settlement is effective except as to those elements of the claim specifically reserved.” Even if this reservation is effective, Gonzalez, LLC, has reserved no claim against PFS, because it made no specific reservation of claim against PFS when it released the various parties from the previous lawsuit.

DiVincenti and PFS argued before the trial court, and now argue to this Court, that the doctrine of res judicata, or claim preclusion, bars the attempt by Gonzalez, LLC, to relitigate the claims that, they allege, have already been decided in the settlement of the original action. They argue that because Gonzalez, LLC, chose to amend its complaint in its action against Rowley, Oakleigh, TIG, K & K, and other fictitiously named parties to include an allegation that TIG,- K & K, and the fictitiously named parties negligently damaged the roof of the Temple by causing nails to be inserted in the roof, the negligence alleged against DiVineenti and PFS has already been addressed on the merits through the settlement and the dismissal with prejudice of all claims in the original action. DiVineenti and PFS argue that after 1) a prior judgment on the merits, 2) rendered by a court of competent jurisdiction, 3) with substantial identity of parties, and 4) with the same cause of action presented, the doctrine of res judicata does not permit a later action asserting the same claims. See Hughes v. Allenstein, 514 So.2d 858 (Ala.1987), and Dairyland Ins. Co. v. Jackson, 566 So.2d 723 (Ala.1990). “Where these elements are present, the former suit bars any later suit on the same cause of action, including issues that were or could have been litigated in the prior case.” Lott v. Toomey, 477 So.2d 316, 319 (Ala.1985).

“[Tjhis Court has ... held that a dismissal with prejudice is an adjudication on the merits. [Smith v. Union Bank & Trust Co., 653 So.2d 933 (Ala.1995)]; Hammermill Paper Co. v. Montreal Boyette Sandlin Day, 336 So.2d 166 (Ala.1976).” Parmater v. Amcord, Inc., 699 So.2d 1238, 1241 (Ala.1997). DiVineenti and PFS therefore fulfill the first of the four elements of res judicata, that is, there has been a prior judgment on the merits! Gonzalez, LLC, does not allege that the trial court was not a court of competent jurisdiction; therefore, the second element of res judicata—that the judgment on the merits was rendered by a court of competent jurisdiction—has also been fulfilled.

The third element of res judicata is the substantial identity of parties.

“ ‘ “Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies. Res judicata applies where the parties to both suits are ‘substantially identical.’
“ ‘ “Judgments can bind persons not party (or privy) to the litigation in question where the nonparties’ interests were represented adequately by a party in the original suit. A person may be bound by a judgment even though not a party to a suit if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative. Moreover, if a party has a ‘sufficient “laboring oar” in the conduct’ of the litigation, then the principle of res judi-cata can be actuated.” ’ ”

Green v. Wedowee Hosp., 584 So.2d 1309, 1315 (1991), quoting Whisman v. Alabama Power Co., 512 So.2d 78, 82-83 (Ala.1987), quoting in turn Century 21 Preferred Props., Inc. v. Alabama Real Estate Comm’n, 401 So.2d 764, 770 (Ala.1981).

In this case, Gonzalez, LLC, did not specifically name DiVineenti and PFS as parties in the original action; they were, however, contractors hired by the parties named in that action. TIG, a defendant in the original action, hired DiVin-centi and PFS to investigate the claims made by Gonzalez, LLC. Then, following the inspection by DiVineenti and PFS, Gonzalez, LLC, amended its complaint to include a claim against Rowley, Oakleigh, TIG, K & K, and fictitiously named parties for damages for that inspection work. TIG, K & K, and the other named parties had to defend the inspection work of their contractor, and the interests of DiVineenti and PFS were adequately represented in the original case. DiVineenti and PFS are, therefore, substantially' identical parties to those named in the amended complaint.

This Court does distinguish between agents and independent contractors in determining liability, holding, in general, that parties are liable for the actions of agents, but are not hable for the actions of independent contractors. Campbell v. Employers Ins. Co., 521 So.2d 924 (Ala.1988). Here, however, the parties have contracted to create a nondelegable duty. General Fin. Corp. v. Smith, 505 So.2d 1045 (Ala.1987). This Court discussed nondelegable duties and the liability that arises from them in Fuller v. Tractor & Equipment Co., 545 So.2d 757 (Ala.1989):

“The fact situation in the present case is similar to that in Alabama Power Co. v. Pierre, [236 Ala. 521, 183 So. 665 (1938) ].
“In Pierre, the Pierres purchased electrical fixtures for their new home from Alabama Power Company. As an inducement to close the deal, Alabama Power agreed to install the fixtures at no charge. Alabama Power contracted with a third party to complete the actual installation; during the installation the subcontractors inadvertently set the house on fire. The Pierres sued Alabama Power, alleging that the installation of the fixtures was a non-delegable duty. This Court agreed and, citing the case of Dixie Stage Lines v. Anderson, 222 Ala. 673, 134 So. 23 (1931), stated:
“ ‘In the Anderson Case, supra, after stating the rule of responsibility for the manner of performance of his non-delegable duties, though done by an independent contractor, it was further observed “that one who by his contract or by law is due certain obligations to another cannot divest himself of liability for a negligent performance by reason of the employment of such contractor.”
“ ‘And the Anderson Case, supra, is authority also for the conclusion that in such a situation the “defendant is liable to plaintiff as though the contractor were the servant or agent of defendant.”
“ ‘Under plaintiffs’ evidence, therefore, in the light of this authority, defendant cannot escape responsibility for the negligent performance of the installation upon the theory that Bailey was an independent contractor. By contract this installation was a non-delegable duty on defendant’s part so far as these plaintiffs were concerned, and the contractor may be treated in law as the agent or servant of defendant, though as between the parties and in a strict legal sense such relationship did not in fact exist.’
236 Ala. at 525, 183 So. at 668.”

545 So.2d at 759.

Here, the parties named in the original action contractually obligated themselves to Gonzalez, LLC, for repair of any damage to the roof caused by PFS’s inspection and sampling. This contract created a nondelegable duty on the part of the named parties to repair the roof damage caused by the inspection. Gonzalez, LLC, implicitly recognized the nondelega-ble nature of this duty when it amended its complaint against the named parties to include a claim against them for the roof damage caused by the inspection. Having contractually created a nondelegable duty on the part of the named parties and having sought and received damages from the named parties for their failure to fulfill this nondelegable duty, Gonzalez, LLC, cannot now recover a second time for the same injury — once from the named parties in the original action and a second time from DiVincenti and PFS, the contractors hired to perform the nondelegable duty. Therefore, DiVincenti and PFS are substantially identical parties to the named parties in the first action.

“The fourth requirement of res judicata is that each suit be based on the same cause of action. The question is whether the same evidence substantially supports both actions. Geer Brothers, Inc. v. Crump, 349 So.2d 577 (Ala.1977).” Hughes v. Martin, 533 So.2d 188, 191 (Ala.1988). The evidence that Gonzalez, LLC, would have used to show that TIG, K & K, Rowley, or Oakleigh was liable to Gonzalez, LLC, for damage to the roof is the same evidence that Gonzalez, LLC, would now use against DiVincenti and PFS. The fourth element of res judicata is therefore fulfilled.

The trial court based its summary judgment for DiVincenti and PFS on the doctrines of res judicata and collateral estop-pel. After a de novo review, we find that the doctrine of res judicata applies in this case, so we need not consider whether the doctrine of collateral estoppel also applies. We therefore affirm the trial court’s summary judgment.

1010015 — -AFFIRMED.

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

JOHNSTONE, J., concurs in part, concurs in the result in part, and dissents in part.

1011011 — DISMISSED.

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

JOHNSTONE, Justice

(concurring in part, concurring in the result in part, and dissenting in part).

I concur in the holding that the trial court did not retain jurisdiction to award attorney fees pursuant to the Alabama Litigation Accountability Act. I concur only in the result of affirming the summary judgment in favor of Professional Forensic Services, Inc. (“PFS”). I respectfully dissent from affirming the summary judgment in favor of Roy DiVincenti.

If the facts stated in the main opinion were correct, its rationale applying the doctrine of res judicata to bar the claims against PFS and DiVincenti would be correct. More specifically, if the defendants in the first lawsuit had contractually undertaken a nondelegable duty to the plaintiff to perform the testing so as not to cause more leaks, then (1) the plaintiff could legally have pursued a claim against the defendants in the first lawsuit for leaks caused by PFS or DiVincenti, (2) the first-suit defendants would necessarily have defended the performance of the testing by PFS and DiVincenti, (3) the first-suit defendants would therefore have constituted the “laboring oar” and the privies of PFS and DiVincenti, (4) the plaintiffs settlement proceeds from the first lawsuit would have constituted its recovery for leaks caused by PFS and DiVincenti, and (5) therefore the settlement of the first lawsuit would have constituted a res judicata bar to the second lawsuit, the one now before us against PFS and DiVincenti for their causing the additional leaks in the course of their performance of their testing. See Green v. Wedowee Hospital, 584 So.2d 1309, 1315 (Ala.1991), cited and quoted in the main opinion.

The record, however, is devoid of evidence that the defendants to the first lawsuit ever contractually undertook a nondel-egable duty to perform the testing so as not to cause more leaks. Such a contract does not exist.

The plaintiffs allegations against the defendants in the first lawsuit do not constitute evidence of the facts alleged or the facts essential to any theory that could have been alleged. This Court should avoid any holding that implies that allegations are self-proving. Therefore, the plaintiffs first lawsuit does not establish the existence of any such contract.

PFS and DiVineenti argue that the plaintiffs release of the first-suit defendants from liability for any leaks that might be caused in the anticipated testing by PFS and DiVineenti constitutes the contract by the first-suit defendants undertaking a nondelegable duty to the plaintiff to perform the testing without causing more leaks! The text of the release belies this argument, which defies the very concept of release. The release, which is quoted at the beginning of the main opinion, is quoted again here:

“In consideration of TIG Insurance Company, K & K Insurance Group, Badger-Stonewall Insurance Agency and Mark Rowley (hereinafter known as Releasees) bearing responsibility for professional services compensation for forensic engineering investigation and testing performed by Professional Forensic Services, Inc. (hereinafter, ‘PFS’) on the Scottish Rite Temple (hereinafter ‘Property’) with respect to reported claims of wind damage and water intrusion to the Property, the undersigned, Scott Gonzalez, Gonzalez, LLC, and Scottish Rite Temple, hereby fully releases both Releasees and PFS from any damages or liability with respect to water intrusion and/or inability to exactly match paint colors and/or aesthetic finish textures, or exposure/releasing of environmental contaminants (NOTE: work will cease immediately, should this occur) associated with the work scope to be performed on the Property by PFS in the sampling of claim-pertinent materials from the Property. Releasors agree to said release based on the understanding that the repairs will be performed by a qualified licensed General Contractor and that every attempt will be made to match the present exterior colors and surface-visible sampling materials from the ‘sampling’ locations. Releasors fully release both Releasees and PFS from any damage or liability with respect to any leaks that may arise on the Property as a result of the roof material sampling. Releasors agree to said release based on the understanding that a roofing contractor, licensed to practice in the State of Alabama, will perform the repairs for the sampled locations on the roof. Releasees and PFS agree to contact the Releasors or Releasors’ attorney prior to taking any sample of any claim pertinent material to allow the photographing and cataloging of any such sample. Releasees and PFS also agree to provide a portion of any sample taken to Releasors or Releasors’ attorney.” (Emphasis added.)

The pertinent undertakings by the first-suit defendants were, at most, only to employ “a qualified licensed General Contractor,” or (perhaps and) “a roofing contractor, licensed to practice in the State of Alabama,” and to “bear[] responsibility for professional services compensation” (emphasis added) for the investigation and testing. An agreement by the first-suit defendants to employ such independent contractors and to pay their compensation for the investigation and testing does not constitute an undertaking of a nondelega-ble duty to the plaintiff by the first-suit defendants themselves to perform the testing without causing more leaks. On the contrary, the release by the plaintiff “fully releases both Releasees [the first-suit defendants] and PFS from any damages or liability with respect to water intrusion” and “from any damage or liability with respect to any leaks that may arise on the Property as a result of the roof material sampling.”

Suppose, after the plaintiff added its claim in the first suit against those defendants for the additional leaks caused by PFS and DiVincenti, the first-suit defendants had not settled the suit but had won a summary judgment, at least against this particular claim. Suppose the grounds of such summary judgment were, first, that the status of PFS as an independent contractor insulated the first-suit defendants from liability for torts committed by the independent contractor or by DiVincenti and, second, that the plaintiff had released the first-suit defendants from liability for any additional leaks PFS or DiVincenti might cause. Would this Court reverse such a summary judgment by applying today’s rationale that, by accepting the release from the plaintiff, the first-suit defendants undertook a nondelegable duty to the plaintiff to perform the testing without causing more leaks? Surely not. Yet, if such a case comes before us in the future, today’s main opinion will require precisely such a ruling.

Because the first-suit defendants did not undertake a nondelegable duty to the plaintiff to perform the testing without causing more leaks, (1) the plaintiff could not legitimately sue the first-suit defendants for the additional leaks caused by the independent contractor PFS or by the individual DiVincenti, (2) the first-suit defendants did not necessarily defend the performance of the testing by PFS and DiVincenti, (8) the first-suit defendants did not constitute the “laboring oar” or the privies of PFS or DiVincenti, and (4) the first-suit settlement proceeds did not constitute a recovery for the additional leaks. Therefore, the first-suit settlement does not constitute a res judicata bar to this second lawsuit, the one now before us against PFS and DiVincenti for the additional leaks they caused.

The only justification for the summary judgment in favor of PFS is the obvious defense that the release expressly releases PFS from liability for causing more leaks. The plaintiff does not argue to the contrary. No reason, however, justifies the summary judgment in favor of DiVincenti.

      1. A separate action was filed, apparently on the same grounds, against Badger-Stonewall Insurance Agency. The complaint in that action is not included in the record.

      . The record in this case is incomplete in that it contains only selected pages from depositions and trial testimony, instead of the entire depositions and trial testimony.

      . This Court concluded in Fuller, 545 So.2d at 759:
      "In the present case, S & M contracted with T & E for the sale of a front-end loader with air conditioning. In the event that the air conditioning was not installed properly, S & M would look to T & E to rectify the problem. T & E undertook to provide air conditioning under the contract for sale and was thereby bound with the non-dele-gable duty to ensure that the air conditioning was installed in a reasonable manner."


author: HOUSTON, Justice. JOHNSTONE, Justice

text:
    Edward L. SEWARD, Jr. v. Tonda DICKERSON et al. Tonda Dickerson et al. v. Edward L. Seward, Jr.
    1011359 and 1011447.
    Supreme Court of Alabama.
    Sept. 20, 2002.

      Stephen E. Clements, Mobile; and Tristan R. Armer of Williams & Armer, P.C., Grand Bay, for appellant/cross-appellee Edward L. Seward, Jr.
    William E. Pipkin, Jr., and Michael E. Gabel of Sirote & Permutt, P.C., Mobile, for appellees/cross-appellants Tonda Dickerson et al.
   HOUSTON, Justice.

In Dickerson v. Deno, 770 So.2d 63 (Ala.2000), we held that an agreement between Tonda Dickerson and her former co-employees to split the proceeds of a winning Florida lottery ticket was void under Alabama law. Edward Seward now challenges the validity of his gift of the ticket to Dickerson. The Mobile Circuit Court, in entering a summary judgment for Dickerson and the other defendants, rejected Seward’s challenge. We affirm.

The underlying facts of this case were summarized in Dickerson as follows:

“The plaintiffs [in Dickerson ] — Sandra Deno, Angie Tisdale, Matthew Adams, and Jackie Fairley — and ... Tonda Dickerson were all employees at the Waffle House restaurant in Grand Bay, Alabama. Edward Seward ... was a regular customer of the Waffle House. On several occasions Seward would travel to Florida and purchase lottery tickets and upon his return would give the tickets to various friends and family members, including the employees of the Waffle House. Seward did not expect to share any potential lottery winnings based on the tickets he gave away, but he claimed that he was promised a new truck by the employees of the Waffle House if one of the tickets he distributed there was a winning ticket. Several employees of the Waffle House received lottery tickets from Seward during the several weeks that he gave out the tickets.
“A drawing for the Florida lottery was scheduled for Saturday night, March 6, 1999. During the week before that drawing, Seward traveled to Florida and purchased several lottery tickets. He placed each individual ticket in a separate envelope and wrote the name of the intended recipient on the outside of the envelope. On March 6, 1999, before the lottery drawing, Seward presented ... Deno, Tisdale, and Adams each with an envelope containing one lottery ticket. The drawing was held as scheduled. The numbers on the lottery tickets held by Deno, Tisdale, and Adams did not match the numbers drawn in the March 6 drawing.
“On March 7, 1999, after the March 6 drawing had already been concluded and the winning numbers had been determined, Seward presented a ticket to ... Fairley, who had never previously received a ticket from Seward; he also on that date presented ... Dickerson with a ticket. Each of those tickets was for the March 6 drawing, and each was presented in a separate envelope. Upon opening her envelope, Fairley determined that the numbers on her ticket did not match the winning numbers. Subsequently, Dickerson opened her envelope and determined that the numbers on her ticket matched the winning numbers drawn in the lottery the night before. The ticket won [Dickerson] a prize of approximately [$10] million.”

Dickerson, 770 So.2d at 64.

In Dickerson we held that there was sufficient evidence to support a finding that Dickerson and her co-employees orally agreed to split the proceedings should any of the tickets they received from Seward prove to be a winning ticket. Id. at 65. However, we also held that such an agreement was void and unenforceable under Ala.Code 1975, § 8-1-150, as a “contract!] founded ... on a gambling consideration.” Id. at 65-67.

After we released our opinion in Dickerson, Seward sued Dickerson and others (hereinafter referred to collectively as “the defendants”), alleging fraud and conversion and seeking equitable relief. The basis for each of these claims is Seward’s allegation that Dickerson acquired the ticket from Seward by fraudulently misrepresenting that, if she won, she would share any winnings with her co-employees. The Mobile Circuit Court entered a summary judgment in favor of the defendants as to each of Seward’s claims.

“When reviewing a ruling on a motion for a summary judgment, this Court applies the same standard that the trial court used ‘in determining whether the evidence before the court made out a genuine issue of material fact.’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). ‘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. West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a ruling on a motion for a summary judgment, this Court views the evidence in the light most favorable to the non-movant and entertains such reasonable inferences as the jury would have been free to draw. Renfro v. Georgia Power Co., 604 So.2d 408, 411 (Ala.1992).”

City of Orange Beach v. Duggan, 788 So.2d 146, 149 (Ala.2000).

The defendants properly supported their motion for a summary judgment with evidence showing that Dickerson never made any misrepresentations to Seward regarding the lottery ticket before Seward gave her the lottery ticket; that Seward decided to give the lottery ticket to Dickerson without ever having discussed with Dickerson the issue of what would happen if the lottery ticket he gave her was the winning ticket; that Dickerson never asked Seward to give her a lottery ticket; that Seward never intended or expected that he was to receive any money should the lottery ticket he gave Dickerson turn out to be the winning ticket; and that the damages Seward sought to recover from Dickerson were the $10 million she received from the winning lottery ticket, not a “new truck.” The defendants met their burden of showing that there was no genuine issue of material fact as to Seward’s claims of fraud or conversion or his claim seeking equitable relief.

Therefore, in order for Seward to survive a summary judgment, he must present substantial evidence creating a genuine issue of material fact as to fraud or conversion on the part of Dickerson, or substantial evidence indicating that Seward was entitled to equitable relief. As stated above, Seward’s claims alleging conversion and seeking equitable relief have as their foundations Seward’s fraud claim. An essential element of any fraud claim is “reasonable reliance.” See Reynolds Metals Co. v. Hill, 825 So.2d 100, 105 (Ala.2002). Seward must have “reasonably relied” on Dickerson’s alleged representation that she would split with her co-employees any winnings she received from her lottery ticket. However, the evidence indicates that the only “representation” Dickerson made was not made to Seward; rather, Seward attempts to rely on Dickerson’s mere assent to a question asked to her by one of her coworkers, Sandra Deno, which he overheard:

“Q. I need to know whether you ever talked directly to Tonda Dickerson, and told her that you expected her to share anything she won from the lottery tickets that you were giving her?
“A. Let me see — That Sunday?
“Q. Anytime.
“A. That Sunday, it would be two weeks ago?
“Q. Anytime.
“A. Anytime, yeah, yeah.
“Q. You looked at Tonda, and you said, I expect you to share?
“A. No, no, I didn’t say nothing. Ton-da told — Tonda—and—me and Tonda — Tonda—Sandra and Tonda and me will split it down the middle, down the middle — lottery.
“Q. Okay.
“A. Down the middle.
“Q. And that’s what Sandra told you?
“A. Yeah, about both — both of us. And Sandra and Tonda, both of us.
“Q. My question to you was — You just told me about one specific conversation where you heard Sandra—
“A. Uh-huh. (Witness indicates affirmatively.)
“Q. —and Tonda talking?
“A. And me.
“Q. You were there?
“A. Yeah.
“Q. They weren’t talking to you, were they?
“A. No, but Jackie — Sandra, Tonda and me was talking to — we were talking to each other.
“Q. But if I understand the conversation that you told me about, Sandra asked Tonda a question, right?
“A. What, now?
“Q. Sandra—
“A. Sandra?
“Q. • — asked Tonda—
“A. Yeah.
“Q. —a question about the pool?
“A. Yeah.
“Q. And Tonda said, yes.
“A. Yeah.
“Q. She wasn’t talking to you, was she? You were just there listening, right?
“A. About a three-way — three-way conversation.
“Q. Okay. You don’t remember asking any questions about lottery tickets during that conversation, do you?
“A. Lottery tickets, yeah.
“Q. Then, tell me what you said.
“A. All I heard was, down the middle, right, yeah.
“Q. That’s what you heard, right?
“A. Yeah that’s what I heard.
“Q. Okay.
“A. Heard, heard.
“Q. Right.
“A. Yeah.
“Q. But you didn’t say anything about lottery tickets during that conversation, did you?
“A. Well, no, no.”

Seward cannot reasonably rely on Dickerson’s mere assent — a fragment of a vague conversation that was not directed to him — as the basis for the rather serious charge that Dickerson somehow “defrauded” him.

Furthermore, the lack of the reasonableness of his reliance combines with the lack of evidence indicating that Dickerson intended to communicate with Seward in such a way as to induce him to purchase the ticket. In such a situation, where a “third-party” fraudulent misrepresentation is alleged, statements to persons other than the plaintiff will support the fraud allegations only when there is sufficient evidence of an intent on the part of the speaker to communicate to the third party in such a way as to induce the plaintiff to act. Thomas v. Halstead, 605 So.2d 1181, 1184-85 (Ala.1992). Seward’s testimony indicates (1) that there was only one relevant conversation; (2) that this conversation was not directed at Seward; (3) that Dickerson did not initiate and was not directing the conversation; and (4) that Dickerson’s response — something along the lines of “yes,” “yeah,” or “that’s right” — was her sole contribution to the conversation. Not only is reliance upon Dickerson’s “statement” not sufficiently reasonable to support Seward’s fraud claim, but the circumstances surrounding Dickerson’s statement do not adequately demonstrate an intent to communicate to Seward or to induce Seward to act. The trial court did not err when it entered a summary judgment on Seward’s fraud claim.

Additionally, as stated above, Seward’s conversion claim and his claim for equitable relief rely upon the validity of his fraud claim. Therefore, we hold that the trial court did not err in entering a summary judgment for the defendants as to those claims.

The defendants filed a cross-appeal, arguing that the trial court erred in entering a partial summary judgment in favor of Seward on the issue of the existence of the agreement among Dickerson and her co-employees to divide any lottery winnings. However, our affirmance of the trial court’s summary judgment in favor of the defendants renders their cross-appeal moot.

1011359 — AFFIRMED.

MOORE, C.J., and LYONS and WOODALL, JJ., concur.

JOHNSTONE, J., concurs specially.

1011447 — APPEAL DISMISSED AS MOOT.

MOORE, C.J., and LYONS, JOHNSTONE, and WOODALL, JJ., concur.

JOHNSTONE, Justice

(concurring specially).

I concur, except that I do not agree with the statement in footnote 4 to the effect that an agreement among Dickerson and her coworkers to divide any proceeds from the ticket would be void under Alabama law. While the statement faithfully follows the holding of Dickerson v. Deno, 770 So.2d 63 (Ala.2000), I respectfully maintain the disagreement that I expressed in my dissent in that case, 770 So.2d at 67.

      . We noted in Dickerson that the total prize for the March 6, 1999, Florida lottery was $10 million and was split between two winning tickets. 770 So.2d at 64 n. 1. However, it appears that the total winnings were $20 million, and that each of the two winners was awarded $10 million.

      . The other defendants include a corporation formed by Dickerson after she won the lottery and several shareholders of that corporation.

      . Seward argues that the trial court erroneously construed the fraudulent misrepresentation alleged in Seward's complaint to be Dickerson and her co-employees' alleged promise to buy him a truck if one of the tickets he gave them proved to be a winning ticket. Instead, Seward contends that his complaint is based upon Dickerson’s alleged misrepresentation that she would split the winnings with her co-employees. We agree, and we focus our analysis upon this contention.

      . Although not dispositive, the fact that the statement Seward relied upon was an apparent assent to enter into an agreement that is void under Alabama law can do nothing but reduce the reasonableness of Seward's reliance.


author: THOMPSON, Judge.

text:
    Heidi Gayle Holcomb REID v. Eric Jason REID.
    2010310.
    Court of Civil Appeals of Alabama.
    Sept. 6, 2002.

      M. Lionel Leathers of Hollis, Leathers & Leathers, P.C., Winfield, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Judge.

Heidi Gayle Holland Reid (“the mother”) and Eric Jason Reid (“the father”) were divorced by a June 26, 2000, judgment of the trial court; that judgment was based on an agreement of the parties. Pursuant to the terms of the divorce judgment, the mother was awarded custody of the child born during the parties’ marriage.

On October 22, 2001, the father filed a petition to modify custody of the child. The mother answered and counterpeti-tioned, seeking, among other things, a modification' of the father’s visitation with the child and a modification of the father’s child-support obligation. The trial court conducted an ore tenus hearing, during which, it appears, issues were raised that had not been addressed in the parties’ pleadings.

On December 18, 2001, the trial court entered an order awarding custody of the parties’ child to the father, ordering the father to provide health-insurance coverage for the child, and ordering each party to pay one-half of the child’s medical expenses that are not covered by health insurance. In its December 18, 2001, order, the trial court reserved for later determination the issue of child support and an issue related to the parties’ division of the proceeds from their settlement of a legal action. The mother appealed. The father did not file a brief in this court.

Although neither party has addressed whether this court may consider this appeal, matters of jurisdiction are of such importance that a court may consider them ex mero motu. Bacadam Outdoor Adver., Inc. v. Kennard, 721 So.2d 226 (Ala.Civ.App.1998) (citing Nunn v. Baker, 518 So.2d 711 (Ala.1987), and Wallace v. Tee Jays Mfg. Co., 689 So.2d 210 (Ala.Civ.App.1997)). “A final judgment is one that completely adjudicates all matters in controversy between the parties.” Wilson v. Glasheen, 801 So.2d 848, 849 (Ala.Civ.App.2001).

In Tomlinson v. Tomlinson, 816 So.2d 57 (Ala.Civ.App.2001), the parties’ divorce judgment awarded the mother custody of the parties’ children and ordered the father to pay child support. The father later petitioned to modify custody of the parties’ remaining minor child. The trial court entered a judgment in which it granted the father’s petition but stated that it would consider the issue of child support when the parties submitted the child-support forms required by Rule 32(E), Ala. R. Jud. Admin. The mother appealed. This court dismissed the appeal as from a not final judgment, stating, “[b]ecause the trial court’s order did not dispose of the matter of child support, it is not final, and this court cannot now reach the merits of this case.” Tomlinson v. Tomlinson, 816 So.2d at 58.

In this case, in its December 18, 2001, order, the trial court reserved the issue of child support pending the mother’s taking an examination in February 2002 to obtain her nursing license. The court stated that the results of that examination would determine the level of income the trial court would impute to the mother for the purpose of calculating her child-support obligation. Thus, the facts of this case are similar to those of Tomlinson v. Tomlinson, supra, because the trial court reserved its determination of the mother’s child-support obligation pending the submission of information regarding the level of income the mother could expect to earn. See also Stanford v. Feige, 816 So.2d 501 (Ala.Civ.App.2001) (concluding a judgment was nonfinal and dismissing the appeal from that judgment where, in the judgment from which the appeal was taken, the trial court had requested that the parties submit certain additional evidence necessary for it to make a determination whether the wife was entitled to alimony); Wilson v. Glasheen, 801 So.2d 848 (Ala.Civ.App.2001) (dismissing as from a nonfinal judgment an appeal from a judgment in which the trial court asked the parties to submit information relevant to a determination of child support).

“An order is generally not final unless it disposes of all claims or the rights and liabilities of all parties. Rule 54(b), Ala. R. Civ. P.; Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987). The only exception to this rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. This is not an instance where the trial court’s failure to grant certain relief necessarily implies that the trial court denied that relief. See Dutton v. Ches ter F. Raines Agency, Inc., 475 So.2d 545 (Ala.1985) (holding that the trial court’s judgment for one party necessarily implied a denial of the other party’s counterclaim).”

Carlisle v. Carlisle, 768 So.2d 976, 977 (Ala.Civ.App.2000). We conclude that the trial court’s December 18, 2001, order was nonfinal, and, therefore, that it will not support the mother’s appeal. This court must dismiss an appeal from a nonfinal judgment. Stanford v. Feige, supra.

APPEAL DISMISSED.

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

      . That legal action accrued and was filed during the parties’ marriage, but it does not appear that the divorce judgment addressed the division of any recovery in that action. Shortly before the father filed his petition to modify custody of the parties’ child, the parties received a check in settlement of their claims in that action; the check was made out to both parties. We are not called upon to decide, and we find it unnecessary to decide, whether the action that forms the basis of this appeal was the appropriate forum in which to consider the issue of the division of those funds.