author: MADDOX, Retired Justice.

text:
    AKINS FUNERAL HOME, INC. v. Andrea Megan MILLER. Akins Funeral Home, Inc. v. Teresa Miller.
    1020198, 1020224.
    Supreme Court of Alabama.
    Sept. 26, 2003.

      R. Larry Bradford and Shane T. Sears of Bradford Law Firm, P.C., Birmingham, for appellant.
    Barry A. Ragsdale of Ivey & Ragsdale, Birmingham; and Garve W. Ivey, Jr., of Ivey & Ragsdale, Jasper, for appellee Andrea Megan Miller.
    L. Andrew Hollis and Gregory M. Zarz-aur of Hollis & Wright, P.C., Birmingham, for appellee Teresa Miller.
   MADDOX, Retired Justice.

These cases, which were consolidated for trial, arise out of an automobile accident in which three young people were killed. Andrea Megan Miller and Teresa Miller, surviving relatives of one of the accident victims, sued the two funeral homes that were involved with the funeral arrangements of one of the victims, whose body was cremated rather than buried as the surviving relatives desired. The Millers settled their claims against one of the funeral homes, but the case involving Akins Funeral Home, Inc., went to trial before a jury, which returned a verdict for the Millers.

These appeals present three legal issues: (1) whether the trial court erred in allowing a witness, who was not a psychologist or psychiatrist, to testify as an expert and offer what Akins alleges were medical opinions; (2) whether the jury’s award of compensatory damages in both cases was against the great weight of the evidence; and (3) whether the punitive-damages awards were excessive.

We have carefully reviewed the facts and the law relating to the issues presented, and we conclude that the trial court did not err; therefore, we affirm.

Facts and Procedural History

Nineteen-year-old Matthew Miller (“Matt”) and two others were killed in an automobile accident that occurred on February 20, 2000. When he arrived at the scene of the accident, a volunteer fireman, Kenny Colburn, thought he recognized the automobile involved in the accident as belonging to his stepdaughter, Andrea Megan Miller, who was Matt’s wife. He left the scene of the accident and went to the house of Teresa Miller, Matt’s mother. He learned from Teresa that Megan was safe, but that Matt had left in the automobile. Colburn returned to the accident scene with Teresa Miller and Tommy Miller, Matt’s brother. When they arrived, they were informed that all three occupants of the car, including Matt, had been killed.

All three bodies were transported to the Kilgore-Green Funeral Home in Jasper. The Miller family decided to use Akins Funeral Home, Inc. (“Akins”), to handle Matt’s funeral, and at the request of the family, Doil Akins traveled to Jasper and retrieved what had been identified as Matt’s body; the body, however, was the body of Johnny Russell, who was also killed in the accident. The Russell family arranged with Kilgore-Green to cremate Russell’s body, although it was in fact Matt’s body that was cremated. That night, Akins embalmed the body of Johnny Russell.

On February 21, 2000, Megan, Teresa, and other members of the Miller family went to Akins Funeral Home to make the arrangements for Matt’s funeral. At the funeral home they met with Raymond Vernon, the funeral director, and Teresa signed a contract. The evidence presented at trial by the plaintiffs, including the testimony of Teresa; Randy Calhoun, Matt’s uncle; Tommy Miller; and Colburn, indicated that before the family left the funeral home, Teresa asked to view her son’s body; Vernon told her that, until one-half of the funeral expenses were paid, she could not see the body and the body would not be delivered to the church for the funeral. Evidence presented by the Millers indicated that Akins ultimately agreed to deliver the body to the church for the funeral where checks would be collected from various relatives to pay one-half of the funeral expenses.

Vernon disputed the evidence presented by the Millers regarding what took place at the funeral home. He testified that no member of the immediate family asked to view the body, that he did not deny family members the privilege of viewing the body, and that he would have delivered the body to the church for the funeral regardless of whether the funeral expenses had been paid.

The funeral was scheduled to take place the evening of February 21, 2000, at the Thorptown Holiness Church, and Vernon transported the body to the church. With approximately 400 mourners present, the casket was opened, and Teresa viewed the body for the first time. It was at that time that all present realized that a mistake had been made and that the body in the casket was not Matt’s body. Vernon returned to Akins Funeral Home with the body, and telephoned Kilgore-Green Funeral Home. During that telephone conversation Vernon learned that Matt’s body had been cremated that afternoon.

In support of their claims, the Millers presented testimony regarding the traumatic effect the unintentional cremation of Matt’s body had upon them. Evidence was also presented to show the religious and moral objections to cremation Matt and his family shared. The Millers also presented evidence indicating that Teresa attempted suicide twice over the few weeks following Matt’s cremation and Teresa testified that she believed because Matt was not buried “in a humanly state and only his ashes that he could not be resurrected in the eyes of God.” Testimony was also presented indicating that Megan “has not been the same” since the cremation; that she suffers from nightmares and flashbacks; and that she struggles with how she will tell her and Matt’s son that his father was cremated in violation of his beliefs and wishes.

Teresa and Megan each sued Akins, alleging negligence and wantonness, the tort of outrage, breach of contract, trespass, and abuse of a corpse. As pointed out above, Teresa’s case and Megan’s case were consolidated, and at the conclusion of the trial, Megan’s case was submitted to the jury on the counts alleging negligence, wantonness, and the tort of outrage. Teresa’s case was submitted to the jury on the counts alleging breach of contract, negligence and wantonness, and the tort of outrage. The jury returned a verdict against Akins and in favor of both plaintiffs. The jury assessed compensatory damages at $450,000 and punitive damages at $150,000, for a total of $600,000 in Megan’s case; in Teresa’s case, the jury assessed compensatory damages of $200,000 and punitive damages of $150,000, for a total of $350,000.

In each case, Akins filed a motion for a new trial and a motion to remit the punitive damages; those motions were denied.

Standards of Review

Because each issue that is before us has a different standard of review, we will state the standard of review that applies to each issue.

In reviewing a ruling on the admissibility of expert testimony, this Court must determine whether the trial court exceeded its discretion in allowing the expert testimony. In Tidwell v. Upjohn Co., 626 So.2d 1297, 1300 (Ala.1993), this Court stated: “[A] ruling on the admissibility of expert testimony is largely within the discretion of the trial court and will not be overturned unless there has been an abuse of discretion.” In Bagley v. Mazda Motor Corp., 864 So.2d 301, 304 (2003), this Court quoted Ammons v. Massey-Ferguson, Inc., 663 So.2d 961, 962 (Ala.1995), quoting in turn Townsend v. General Motors Corp., 642 So.2d 411, 423 (Ala.1994), and restated the principle as follows:

“ ‘ “[Wjhether a particular witness will be allowed to testify as an expert is left to the sound discretion of the trial court, whose decision will not be disturbed on appeal except for abuse of discretion.” ’ ”

The second issue presented here is whether the compensatory-damages awards were excessive. This Court has stated the following in determining whether a compensatory-damages award for mental anguish is excessive:

“ ‘This Court has long held that “[tjhere is no fixed standard for ascertainment of compensatory damages recoverable ... for physical pain and mental suffering” and that “the amount of such [an] award is left to the sound discretion of the jury, subject only to correction by the court for clear abuse and passionate exercise of that discretion.” This Court has consistently held that a trial court cannot interfere with a jury verdict merely because it believes the jury gave too little or too much.’ “Daniels [v. East Alabama Paving, Inc.], 740 So.2d [1033,] 1044 [(Ala. 1999) ] (citations omitted [in Daniels ]).”

National Ins. Ass’n v. Sockwell, 829 So.2d 111, 135 (Ala.2002).

When reviewing whether a punitive-damages award is excessive, the third issue presented in this case, this Court conducts a de novo review. In Orkin Exterminating Co. v. Jeter, 832 So.2d 25, 39 (Ala.2001), this Court stated:

“Recently, in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001), the United States Supreme Court addressed the question whether an appellate court should review a trial court’s punitive-damages award by applying an abuse-of-discretion standard or by applying a de novo standard. Reasoning that the guideposts established in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) (‘BMW’), ‘will acquire more meaningful content through case-by-case application at the appellate level,’ the Supreme Court held that ‘courts of appeals should apply a de novo standard of review when passing on [trial] courts’ determinations of the constitutionality of punitive damages awards.’ Cooper Industries, 532 U.S. at 436, 121 S.Ct. at 1685-86. In Acceptance Insurance Co. v. Brown, 832 So.2d 1 (Ala. 2001), we recently embraced that standard, holding that our review of a trial court’s punitive-damages award is de novo.
“In reviewing a punitive-damages award for excessiveness, this Court considers the ‘guideposts’ established in BMW and the factors set out in Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989). See Employees’ Benefit Ass’n v. Grissett, 732 So.2d 968, 978 (Ala.1998).”

Discussion

I.

Considering the above-stated standard of review relating to a ruling on the admissibility of expert testimony, we now address whether the trial court erred in permitting Judy Davidson, Ph.D., who was not a physician, psychiatrist, or psychologist, to testify as an expert witness. Davidson was called as a witness by the Teresa Miller. Akins argues that part of her testimony was a “medical diagnosis” and that her testimony should not have been allowed because, Akins argues, “only a physician or an individual authorized by statute may formulate a medical diagnosis and state the cause of the injury.” (Akins’s brief, p. 15.)

Davidson testified that she was a freelance consultant and that she had “a doctorate in health education, [a] masters in health education, [and an] undergraduate bachelors degree in sociology.” She stated that she has done “course work in marriage and family counseling and social work, a post-doctorate [sic],” and that she was “a certified death educator, board-certified trauma specialist.” She stated that in 1993 she started her freelance consulting work and that she trains “school and community agencies in crisis management, grief and trauma in 33 states.” She also testified that she counsels individuals and families in the evenings and on weekends. She stated that she primarily served “families who have experienced murders, suicide, sudden deaths; meaning heart attacks, strokes or natural causes, accidental deaths, and then deaths related to natural disasters like hurricanes tornadoes ... [or] fires.” Davidson also testified that she was a member of the Association of Death Educators and Counselors and the Academy of Traumatic Stress Specialists.

During .direct examination, she was asked what her clinical findings were regarding Teresa Miller; she replied that Teresa Miller was suffering from severe post-traumatic stress disorder. Akins objected, stating that Davidson was not qualified “to make that diagnosis. She’s not a psychologist or psychiatrist. It’s a medical diagnosis.” On voir dire examination, Akins elicited Davidson’s testimony that she was not a psychiatrist, a psychologist, or a licensed counselor. During the voir dire examination of her qualifications and fitness to testify, Davidson stated that for her assessment of Teresa Miller she had relied on the Diagnostic and Statistical Manual of Mental Disorders. She stated that she had “a degree in school and community health which does include death and dying, does include stress-related illnesses and emotional health.” She stated that her doctorate degree repeats “that same kind of thing,” and that the subject of her doctorate dissertation was “adjustment to bereavement.” She further stated that she was a “death educator” and a “board-certified trauma specialist.” She testified that since 1982, she had trained thousands of people and debriefed hundreds of people who had experienced traumatic events. She testified that she had written a book on death and dying and had published numerous articles in magazines and journals relating to grief and loss.

At the conclusion of the voir dire examination of Davidson, Teresa Miller’s attorney asked Davidson if Teresa was suffering from post-traumatic stress disorder, which again elicited an objection from Akins. At that time, the trial judge stated, “I believe she is qualified to testify to that. I’m going to allow it. You can ask her about it on cross-examination, of course.”

Davidson then detailed four categories of post-traumatic stress disorder and detailed the various symptoms that Teresa Miller showed that put her into each of the four categories.

In its brief to this Court, Akins states:

“Dr. Davidson concedes that she was diagnosing the plaintiff with post-traumatic stress disorder. After [Akins’s] attorney objected to Dr. Davidson’s testimony, Dr. Davidson was asked about her clinical findings.
“ ‘Q. Is that a medical diagnosis?
“ ‘A. It’s a diagnosis based on these criteria, and I simply followed the guidelines.’
“However, Dr. Davidson is not a psychiatrist or psychologist. She is not even a licensed counselor. Dr. Davidson does not possess statutory authority to diagnose patients. She concedes that she did not attempt to treat Teresa Miller. She did not provide any counseling to Teresa Miller.”

(Akins’s brief, pp. 25-26.) Akins also states:

“Alabama case-law appears well settled that only a physician or an individual authorized by statute may formulate a medical diagnosis and state the cause of the injury. Alabama courts have specifically limited expert medical testimony to individuals that have the appropriate medical training for the specific injuries sustained by the plaintiff.”

(Akins’s brief, p. 15.) Akins cites Nelson v. Elba General Hosp. & Nursing Home, Inc., 828 So.2d 301 (Ala.Civ.App.2000), rev’d on other grounds, 828 So.2d 308 (Ala. 2001); Phillips v. Alamed Co., 588 So.2d 463 (Ala.1991); Kriewitz v. Savoy Heating & Air Conditioning Co., 396 So.2d 49 (Ala. 1981); Tidwell v. Upjohn Co., supra; § 34-26—42, Ala.Code 1975; and § 15-23-46, Ala.Code 1975, to support its argument that Davidson was not qualified to testify.

The Millers argue (1) that the trial court has broad discretion regarding the admissibility of expert testimony and that the trial court did not exceed its discretion in allowing Davidson’s testimony; (2) that Davidson was fully qualified to testify as an expert in this case; and (3) that the nature of Davidson’s testimony did not require that she be a medical doctor.

The general rule in Alabama regarding the testimony of expert witnesses is Rule 702, Ala. R. Evd. Rule 702 states:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

See also § 12-21-160, Ala.Code 1975. In Knapp v. Wilkins, 786 So.2d 457, 461 (Ala. 2000), this Court stated:

“ ‘The question whether a witness is qualified to testify as an expert on a particular subject is largely within the discretion of the trial court, and that court’s judgment on that question will not be disturbed absent an abuse of discretion.’ Brown v. Lawrence, 632 So.2d 462, 464 (Ala.1994). See also Husby v. South Alabama Nursing Home, Inc., 712 So.2d 750, 753 (Ala.1998). However,
“ ‘ “[t]he criterion for admission of expert testimony is that the witness, by study, practice, experience or observation as to the particular subject, should have acquired a knowledge beyond that of ordinary witnesses.”
“ ‘ . To qualify as an expert a witness does not have to be shown to be infallible or possessing the highest degree of skill.”
‘“It is also declared that “the nature of a wound or injury, its probable cause and effect, may be shown by expert medical witnesses or witnesses shown to be familiar with such questions.
“Kitchens v. State, 31 Ala.App. 239, 241, 14 So.2d 739, 741 (1943) (citation omitted) (emphasis added).”

In Phillips v. Alamed Co., 588 So.2d 463 (Ala. 1991), this Court stated:

“Phillips also argues that the court erred by sustaining Alamed’s objection to testimony by Anne Bailey-Alien, a registered nurse, on the issue of proximate cause. The trial court held that testimony on the issue of proximate cause could be provided only by a physician. As a general rule, decisions as to a witness’s competency to testify as an expert on a particular subject are within the discretion of the trial court. Ward v. Dale County Farmers Co-op., 472 So.2d 978 (Ala.1985). Those decisions will not be reversed by this Court absent an abuse of discretion. Bell v. Hart, 516 So.2d 562 (Ala.1987); Byars v. Mixon, 292 Ala. 661, 299 So.2d 262 (1974).
“The question of whether Alamed’s failure to report Ms. Phillips’s complaint of shortness of breath to her physician proximately caused her death is clearly a question involving complex medical issues. Therefore, we cannot say that the trial judge abused his discretion by requiring the testimony of a physician and, implicitly, holding that a registered nurse was not competent to testify as an expert on the issue of proximate cause. Bell, supra; Byars, supra.
“Finally, Phillips contends that the trial court’s ruling was error because, he contends, this Court has previously approved of testimony by nonphysician witnesses regarding causes of death. He directs this Court’s attention to our opiniohs in Police & Firemen’s Ins. Ass’n v. Mullins, 260 Ala. 173, 69 So.2d 261 (1953); Hicks v. State, 247 Ala. 439, 25 So.2d 139 (1946); and Blakeney v. Alabama Power Co., 222 Ala. 394, 133 So. 16 (1931), as support for his argument.
“In response, Alamed points out that the medical cause of Ms. Phillips’s death, i.e., a pulmonary embolus, was never in dispute. Therefore, it argues, the cases relied on by Phillips are not relevant to the issue of whether the trial judge abused his discretion by holding that Ms. Bailey-Alien was not competent to testify regarding proximate cause. We agree. Phillips’s argument fails to recognize the important distinction between the question of what ailment or organic failure caused Ms. Phillips’s death and the question of whether Alamed’s alleged negligence was the proximate cause of her death.”

588 So.2d at 465. In Kriewitz v. Savoy Heating & Air Conditioning Co., supra, this Court stated:

“[T]he appellants contend that the trial court erred in refusing to allow two clinical psychologists to testify as to the cause of the appellants’ condition. The psychologists were allowed to testify that the appellants had suffered brain damage and, in fact, one of the psychologists was permitted to state that Mr. Kriewitz had ‘organic brain syndrome.’
“What the psychologists were not allowed to express an opinion on was the medical causation of that condition. This is in line with Code 1975, § 34-26-1, which states:
“ ‘a) A person practices as a “psychologist” within the meaning of this chapter when he holds himself out to be a psychologist and/or renders to individuals or to the public for remuneration any service involving the application of recognized principles, methods and procedures of the science and profession of psychology, such as interviewing or administering and interpreting tests of mental abilities, aptitudes, interests and personality characteristics for such purposes as psychological evaluation or for such purposes as overall personality appraisal or classification, personality counseling, psychotherapy or personality readjustment.
“ ‘(b) Nothing in this definition shall be construed as permitting the use of those forms of psychotherapy which involve the administration or prescription of drugs or electro-shock or in any way infringing upon the practice of medicine as defined in the laws of this state. The psychologist who engages in psychotherapy must establish and maintain effective intercommunication with a psychologically oriented physician, usually a psychiatrist, to make provision for the diagnosis and treatment of medical problems by a physician with an unlimited license to practice the healing arts in this state. A psychologist must not attempt to diagnose, prescribe for, treat or advise a client with reference to problems or complaints falling outside the boundaries of psychological practice.’ (Emphasis added [in Savoy].)[]
“Thus, the trial court did not err in refusing to permit the psychologist to testify as an expert that in his opinion the physiological injury was caused by carbon monoxide poisoning.”

396 So.2d at 52-53. In Knapp, supra, this Court, holding that a chiropractor was qualified to testify as to the causation of a patient’s injuries, stated:

“An expert witness may testify to the ultimate issue of causation in a tort action. Macon County Comm’n v. Sanders, 555 So.2d 1054 (Ala.1990); and Harrison v. Wientjes, 466 So.2d 125 (Ala. 1985). A treating physician is competent to give his opinion of the cause of his patient’s injuries. St. Louis & S.F.R.R. v. Savage, 163 Ala. 55, 50 So. 113 (1909).
“ ‘In giving his professional opinion as to the extent and nature of the injury, [a physician] may state the basis upon which he has formed the opinion, his personal examination, including the symptoms given by his patient, their beginning, sequence, and continuity, the fact of a hurt or injury, and its character. These involve statements to the physician in the nature of past events and supposed causes. They must not go into the question of responsibility for the injury. They are limited to purposes of diagnosis, and come in evidence along with and as part bases for his opinion, admitted out of necessity in allowing a proper field for medical science in legal administration; the probative force of the opinion given depending on the verity of the basis on which it is formed as found by the jury.’
“Lowery v. Jones, 219 Ala. 201, 202, 121 So. 704, 706 (1929) (emphasis added [in Knapp ]).
“In support of the plaintiffs claim that chiropractor Dr. Hutchins was competent to testify about the cause of the plaintiffs injuries, she cites Hoefer v. Snellgrove, [48 Ala.App. 11, 261 So.2d 426 (1971), rev’d on other grounds, 288 Ala. 407, 261 So.2d 431 (1972) ]. In Hoe-fer, the trial court had excluded the chiropractor’s testimony of his opinion about the permanency of the patient-plaintiffs back injury and about the residual effects of his back injury. The rationale of the trial court was that the chiropractor was not qualified, and that the medical doctor who treated the plaintiff was more qualified, to testify about these matters. Hoefer, 48 Ala. App. at 14, 261 So.2d at 428. Reversing the trial court, the Court of Civil Appeals held that a qualified chiropractor could testify as an expert about the extent and the permanency of his patient’s injury and about the present and future treatment of his patient. Id.
“Although the issue in Hoefer is not identical to that in the case before us in that Hoefer does not specifically address whether a chiropractor can testify to the cause of his patient’s injuries, Hoefer and the other cases and statutes cited in this opinion, considered together, support the proposition that a treating doctor, chiropractic or medical, is qualified to testify about the nature, the extent, the treatment, and the cause of his patient’s injuries. For example, in Brown v. Lawrence, 632 So.2d 462 (Ala.1994), the chiropractor who treated the plaintiff for injuries she suffered in an automobile accident with the defendant was allowed to testify, apparently without objection on these particular points, that ‘the injury from the accident exacerbated his pre-existing back condition,’ and that the plaintiffs ‘cartilage [was] scarred from the accident and ... would probably trigger recurring pain.’ Brown, 632 So.2d at 464. See also, e.g., Mississippi Farm Bureau Mut. Ins. Co. v. Garrett, 487 So.2d 1320 (Miss.1986); and Badke v. Barnett, 35 A.D.2d 347, 316 N.Y.S.2d 177 (1970) (holding that a treating chiropractor is qualified to give his expert opinion regarding diagnosis, causation, and prognosis of the plaintiffs injury).
“On the basis of the foregoing law, we hold that Dr. Hutchins’s education, li-censure, and practice as a chiropractor, and his examination and treatment of his patient in his capacity as a chiropractor, qualified him as competent to testify to the cause of the particular injuries he treated. Thus the rulings of the trial court excluding Dr. Hutchins’s testimony about causation on the ground ‘that a chiropractor who is not a medical doctor is not qualified to render an opinion as to the causation of an injury’ constitute error to reverse.”

786 So.2d at 462-63.

In this case, Akins argues that Davidson “was not qualified to make a medical diagnosis or opinion concerning whether Andrea Megan Miller was psychologically traumatized as a result of the wrongful cremation of Matthew Miller’s body” (Akins’s brief in case no. 1020198, p. 25), and that Davidson “was not qualified to testify that [Teresa Miller] suffered from post-traumatic stress disorder as a result of the wrongful cremation of Matthew Miller’s body,” and that Davidson “was not qualified to testify that Teresa Miller would not live as long as a result of the wrongful cremation.” (Akins’s brief in case no. 1020224, pp. 23-24.) Akins also argues that Davidson was not qualified to testify that “Andrea Megan Miller had the potential for a re-emergence of problems later in life.” (Akins’s brief in case no. 1020198, p. 25.) Akins also argues that Davidson testified that Megan Miller experienced a physical injury as a result of Matthew’s cremation.

A close examination of the record, however, does not completely support Akins’s characterization of Davidson’s testimony or Akins’s conclusions as to that testimony. Regarding Teresa Miller, Davidson testified as follows:

“Q. Now when you first met — I’m going to break this down. When you first met with Teresa, what were your clinical findings at that time?
“A. She was suffering from severe post-traumatic stress disorder.”

After Akins objected on the basis that Davidson was not qualified to make a medical diagnosis and after voir dire examination of the witness, the following occurred:

“The Court: ... The question was, I believe, did you find that Teresa Miller was suffering from post-traumatic stress disorder; is that correct?
“The Court: I believe she is qualified to testify to that. I’m going to allow it....”

Davidson then testified to the symptoms she had found applicable to Teresa Miller and on which she based her conclusion that Teresa Miller satisfied all the categories of post-traumatic stress disorder. She testified that the factors that exacerbated Teresa Miller’s loss included not being able to see her son’s body and thus to confirm his death, her financial inability to “simply write a check, you know, to have the permission that she thought she needed to see her son’s remains,” the fact that Matt was cremated, which was against Teresa Miller’s religious beliefs. Davidson then testified that, “She’s going to need long-term intensive therapy and I doubt that she will ever be able to go off her antidepressants and antianxiety medication. Stress can kill you. I anticipate that Teresa will not live as long as she could have if this had not occurred to her.”

Regarding Andrea Miller, Davidson testified that Andrea has experienced flashbacks in the form of intrusive thoughts and nightmares as a result of the cremation. She also testified as follows:

“Q. I asked you about Teresa and the physical injury. Do you think that Megan experienced a physical injury because of her husband being cremated as opposed to experiencing a normal burial?
“A. The trauma literature says that is true. It’s a matter of severity. With Megan, or with Teresa, they’re vulnerable for the rest of their lives. Any additional trauma could push them back to a lower level of functioning. I just see Megan functioning at a higher level than Teresa.”

Applying the standard of review applicable in this case and considering the facts and Davidson’s testimony, this Court cannot say that the trial court exceeded the limits of its discretion in allowing Davidson to testify as an expert. Her education in the field of grief counseling and in the traumatic effects induced by loss is extensive.

II.

Akins’s second issue is whether the compensatory damages awarded by the jury are excessive. Akins argues that there was inadequate testimony of mental anguish to support the compensatory-damages awards. In the case of Teresa Miller, Akins argues that the compensatory-damages award of $200,000 was excessive in view of the fact that the only “medical” testimony concerning Teresa was Davidson’s testimony, and that but for Davidson’s testimony, the jury would have concluded that Teresa Miller’s emotional distress was the result of the loss of her son, rather than the fact that he was cremated as a result of a mistake in identity. In the case of Megan Miller, Akins argues that the jury’s compensatory-damages award of $450,000 was excessive because Megan Miller “has not sought any type of psychiatric treatment or counseling as a result of Matthew Miller’s body being cremated”; Megan “did not have a religious preference against cremation”; no medical bills were introduced as a result of Megan’s emotional distress; and Megan “is able to live on her own with her child.” (Akins’s brief in case no. 1020198, pp. 30-31.)

Akins cites Foster v. Life Insurance Co. of Georgia, 656 So.2d 333 (Ala.1994), and McCann v. Lee, 679 So.2d 658 (Ala.1996), in support of its contention that the compensatory damages in this ease were excessive.

In McCann, this Court stated:

“ ‘ “[T]here is no yardstick by which compensatory damages for pain and mental suffering can be measured, and the ascertainment of the amount the plaintiff was due as compensation for these elements of damage must of necessity be left to the sound discretion of the jury, subject only to correction by the court for clear abuse or passionate exercise.” ’
“Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So.2d 812, 820 (Ala.1988), quoting W.S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 603, 165 So.2d 375 (1963).”

679 So.2d at 660.

In Foster v. Life Insurance Co. of Georgia, 656 So.2d 333 (Ala.1994), this Court held that a jury’s award ■ of $250,000 in compensatory damages for emotional distress and mental anguish, caused by the plaintiffs realization that she had paid for an insurance policy that turned out to be worthless, was excessive. Because she sued the company two months after she discovered that the policy was worthless, this Court held that the $250,000 compensatory-damages award was excessive because the plaintiff had endured only two months of anguish and reduced the damages by $200,000.

The Millers argue that “the defendant’s arguments merely emphasize the few facts in the record that might support [Akins’s] repeated refrain that it did nothing wrong.” The Millers point out that Akins, “made the same claim at the trial and the jury found that defense incredible,” and that “the jury found that Akins committed the acts complained of and [Akins] has not formally challenged that finding on appeal.” The Millers also point out that AMns “does not challenge the sufficiency of the evidence supporting any of the causes of action or claims on which the verdict’s correctness could be questioned.” (Teresa Miller’s brief, pp. 52-53.)

Applying the legal principles that govern our review of the award of compensatory damages, this Court is unwilling to hold that the trial court erred when it declined to reduce the compensatory damages awarded to Teresa Miller and Megan Miller. It appears to us that some of the cases AMns relies on heavily to support its argument for a remittitur are distinguishable from these cases. Here, the Millers were not compensated for two months of mental distress over money wasted on worthless insurance, as was the case in Foster v. Life Insurance Co. of Georgia; they were compensated for a lifetime of distress and anguish resulting from not being allowed to view the body of a son and husband and the wrongful cremation of that body as a result of that refusal.

III.

We now address Akins’s argument that the punitive-damages awards of $150,000 for each plaintiff were excessive. As noted earlier, in Orkin Exterminating Co. v. Jet-er, supra, this Court set out the standard of review of a punitive-damages award and stated:

“Recently, in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001), the United States Supreme Court addressed the question whether an appellate court should review a trial court’s punitive-damages award by applying an abuse-of-discretion standard or by applying a de novo standard. Reasoning that the guideposts established in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589,134 L.Ed.2d 809 (1996) (‘BMW’), ‘will acquire more meaningful content through case-by-case application at the appellate level,’ the Supreme Court held that ‘courts of appeals should apply a de novo standard of review when passing on [trial] courts’ determinations of the constitutionality of punitive damages awards.’ Cooper Industries, 532 U.S. at 436, 121 S.Ct. at 1685-86. In Acceptance Insurance Co. v. Brown, 832 So.2d 1 (Ala. 2001), we recently embraced that standard, holding that our review of a trial court’s punitive-damages award is de novo.
“In reviewing a punitive-damages award for excessiveness, this Court considers the ‘guideposts’ established in BMW and the factors set out in Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989). See Employees’ Benefit Ass’n v. Grissett, 732 So.2d 968, 978 (Ala.1998).”

832 So.2d at 39.

Of the four guideposts established in BMW of North America v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), AMns argues that the first guidepost, the reprehensibility of the defendant’s conduct, is not satisfied in this case. In Orkin, this Court stated:

“ ‘Perhaps the most important indici-um of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.’ BMW [of North America v. Gore], 517 U.S. [559] at 575, 116 S.Ct. 1589 [ (1996) ]. Although the Supreme Court did not provide any particular yardstick by which to measure reprehensibility, it did acknowledge that trickery and deceit are more reprehensible than negligence, and that acts of affirmative misconduct, such as making deliberate false statements, are more reprehensible than making innocent misrepresentations. Id. at 575-76, 517 U.S. 559, 116 S.Ct. 1589. The Supreme Court also recognized that economic damage inflicted upon a financially vulnerable plaintiff might well support a large punitive-damages award. Id. at 576, 517 U.S. 559, 116 S.Ct. 1589.”

832 So.2d at 39.

Akins argues that Megan Miller did not ask to view the body and that Teresa Miller’s testimony regarding Akins’s refusal to let her see the body until she had paid one-half of the costs of the funeral is “not conclusive.” Akins quotes a portion of Teresa Miller’s testimony that Akins argues is inconclusive as to whether Akins would not let her see the body or rather merely would not schedule a viewing at the church until one-half of the funeral expenses had been paid.

This argument however, is, as the Millers argue, merely an argument going to the sufficiency of the evidence; it is not a comment on the degree of the reprehensibility of the defendant’s conduct. In addition, any question of whether Teresa Miller testified conclusively that Akins would not allow her to see the body of her son at the funeral home was cleared up when Teresa Miller testified as follows:

“Q. Was there any question in your mind, when you were talking about viewing the body that you were talking about viewing it then and there at the funeral home?
“A. No, it wasn’t. I wanted to see him right then. I wanted to say goodbye to him.
“Q. And what you asked him to do was let you look at the body then and there?
“A. Yes.
“Q. That’s what he refused?
“A. Yes.”

Akins argues that the funeral director, Raymond Vernon, testified that if asked, he would have allowed Teresa Miller to view the body, and that, “[i]n fact, Raymond Vernon believes that if a funeral home refused to allow a family member to view a body for money, it would be terrible.” (Akins’s brief, p. 34.) Again, this argument goes to the sufficiency of the evidence, and the jury apparently did not believe Vernon’s testimony. In addition, Vernon’s statement that it would be “terrible” if a funeral home did not allow a family member to view a body because of nonpayment seems to support the jury’s finding that Akins’s conduct in this case was reprehensible and justifies the punitive-damages awards it made in these cases.

Akins argues that one of the seven Hammond/Green Oil factors weighs against an award of punitive damages in these cases: the requirement that punitive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant’s conduct as well as to the harm that actually has occurred.

In Orkin, supra, this Court stated:

« < “punjtive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant’s conduct as well as to the harm that actually has occurred. If the actual or likely harm is slight, the damages should be relatively small. If grievous, the damages should be much greater.” ’ Green Oil [Co. v. Hornsby], 589 So.2d [218] at 228 [ (Ala.1989) ] (quoting Aetna Life Ins. Co. v. Lavoie, 505 So.2d 1050, 1062 (Ala.1987) (Houston, J., concurring specially)).”

832 So.2d at 41. Akins argues that the actual or likely harm to Megan Miller and Teresa Miller from its conduct was slight and that there was no medical evidence that either suffered emotional distress.

Akins also mentions, in passing, other of the Hammond/Green Oil factors, stating:

“Further, there is no harm likely to occur with Akins Funeral Home’s conduct because it even acknowledges that to demand money simpl[y] to see a body[] is not appropriate. Raymond Vernon even considers such conduct reprehensible. Moreover, Akins Funeral Home did not profit from the misconduct. Akins Funeral Home never received any payment from the Miller family for the funeral of Matthew Miller. The punitive-damages award was excessive and should be remitted.”

(Akins’s brief, p. 36.) Again, we find this argument to be primarily a suffieiency-of-the-evidenee argument and an argument denying that Akins committed any wrong. The jury obviously reached a different conclusion on this issue.

Under our de novo standard of review, we find that the trial court did not err in refusing to remit the punitive-damages awards in these consolidated cases because they were excessive.

Conclusion

Based on the foregoing, the judgment of the trial court is due to be affirmed.

This opinion was prepared by retired Justice Hugh Maddox, sitting as a Justice of this Court pursuant to § 12-18-10(e), Ala. Code 1975.

AFFIRMED.

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

      . The thrust of the Millers' cases against Akins is that Akins employees refused to permit family members to view the body at the funeral home, at a time when the fact that the body at Akins Funeral Home was not Matt's could have been discovered and the mistake rectified.

      . The plaintiffs also sued Kilgore-Green, but Kilgore-Green entered into a pro tanto settlement with the plaintiffs and the action against it was dismissed on March 6, 2002.

      . These code provisions now appear at § 34-26 — 1(b)(1) and (2). The wording in § 34-26-1(b)(1) is substantially the same, and a sentence has been added that reads: "The practice of psychologists specifically includes the use of projective assessment techniques, the diagnosis of mental disorders, and psychotherapy.” The emphasized portion of paragraph (b) above has been removed from what is now § 34-26-1 (b)(2) and replaced with the following: "A psychologist shall not attempt to diagnose, prescribe for, treat, or advise a client with reference to problems or complaints falling outside the boundaries of psychological practice.”

      . Footnote 8 of Teresa Miller’s brief to this Court states:
      "The evidence established that the cremation of Matt Miller's body was begun at 2:00 p.m. on the afternoon of January 21, 2000. The evidence also established that had the mix-up been discovered when Teresa Miller asked [Akins] to see Matt’s body that morning, the cremation could have been prevented.”

      . See Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Horns-by, 539 So.2d 218 (Ala.1989).


source: Caselaw Access Project

author: BROWN, Justice.

license: Public Domain

text:
    UNIVERSITY FEDERAL CREDIT UNION v. Madalene GRAYSON.
    1020042.
    Supreme Court of Alabama.
    Sept. 26, 2003.

      Lewis W. Page, Jr., and Will J. Parks III of Page Law Firm, LLC, Birmingham, for appellant.
    Stephen D. Heninger of Heninger, Burge, Yargo & Davis, LLP, Birmingham, for appellee.
   BROWN, Justice.

University Federal Credit Union (“UFCU”) appeals from the certification of a class in an action brought by the plaintiff, Madalene Grayson. We vacate the class-certification order and remand.

Facts and Procedural History

Grayson is an employee of the University of Alabama at Birmingham, where she works as an administrative associate in the biology department. Grayson is also a member of UFCU and has maintained various accounts with UFCU since 1985.

Among other things, UFCU offers its members loans for the purchase of automobiles. Since 1984, UFCU has required, in connection with “direct” automobile loans, a one-time charge of $2.50. This charge was used to cover internal administrative expenses incurred in maintaining the borrower’s file and in ensuring the vehicle’s title was correct. Before 1993, this charge was disclosed on the promissory notes evidencing the loans as a “prepaid finance charge.” Subsequently, UFCU changed the form of the promissory note and denoted the $2.50 charge as a “filing fee.” The promissory note did not explain the nature of this charge. Grayson obtained automobile loans from UFCU in 1990, 1992, 1993, and 1998. With each loan, Grayson paid the $2.50 charge.

UFCU also allows its members to pay their automobile loan in monthly payments that are deducted automatically from their UFCU account. One such plan, used by Grayson, allowed individual members to make deposits into their accounts through automatic deductions from the member’s biweekly paycheck. At the end of the month, the monthly loan payment was then deducted from the member’s account.

On March 30, 2001, Grayson sued UFCU seeking certification of her action as a class action under Rule 23, Ala. R. Civ. P., and asserting numerous claims: breach of contract, breach of fiduciary duty, fraud, malicious conversion, deceit, deceptive trade practices, and negligence/negligent supervision. Specifically, the complaint alleged that UFCU wrongfully charged Grayson and other members of the credit union the $2.50 fee because, the complaint alleged, the fee was not used to file anything. Additionally, Grayson alleged that UFCU’s method of deducting automobile loan payments from members’ accounts was improper. Grayson thus sought certification of two different classes: one made up of UFCU members who had paid the $2.50 charge, and the other made up of customers enrolled in the biweekly payroll-deduction plan.

On December 14, 2001, the trial court conducted a class-certification hearing. At the hearing, the trial court heard testimony from Grayson and UFCU’s vice president, Glenn Bryan. The trial court also received into evidence numerous exhibits, the affidavits of six other UFCU members, and the deposition testimony of both Bryan and Grayson.

On August 27, 2002, the trial court issued its class-certification order. Although the trial court denied certification for Grayson’s payroll-deduction class, it did certify the following Rule 23(b)(3) class: “Those members [of UFCU] who have made automobile loans with the defendant and who were charged, in connection with those loans, a $2.50 filing fee.” UFCU appeals.

Discussion

I.

In order to obtain class certification, Grayson must establish all of the criteria set forth in Rule 23(a) and at least one of the criteria set forth in Rule 23(b). Ex parte AmSouth Bancorporation, 717 So.2d 357, 362 (Ala.1998). Rule 23(a) provides:

“(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”

Rule 23(b) provides, in pertinent part:

“(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
“(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.”

In reviewing a class-certification order, this Court looks to see whether the trial court exceeded its discretion in entering the order; however, we review de novo the question whether the trial court applied the correct legal standard in reaching its decision. Reynolds Metals Co. v. Hill, 825 So.2d 100, 104 (Ala.2002).

“We note that an abuse of discretion in certifying a class action may be predicated upon a showing by the party seeking to have the class-certification order set aside that ‘the party seeking class action certification failed to carry the burden of producing sufficient evidence to satisfy the requirements of Rule 23.’ Ex parte Green Tree Fin. Corp., 684 So.2d 1302, 1307 (Ala.1996). Thus, we must consider the sufficiency of the evidence submitted by the plaintiff customers.”

Compass Bank v. Snow, 823 So.2d 667, 672 (Ala.2001). If Grayson failed to meet the evidentiary burden as required by Rule 23, then the trial court exceeded its discretion in certifying a class action. Smart Professional Photocopy Corp. v. Childers-Sims, 850 So.2d 1245, 1248 (Ala.2002).

II.

As noted above, Rule 23(b)(3) requires a finding that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” This requirement “ ‘tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’ ” Reynolds Metals, 825 So.2d at 104 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). In making this determination, “[cjourts .examine the substantive law applicable to the claims and determine whether the plaintiffs presented sufficient proof that common questions of law or fact predominate over individual claims.” Voyager Ins. Cos. v. Whitson, 867 So.2d 1065, 1071 (Ala. 2003). “When individual issues predominate over the common claims, manageability of the action as a class is not possible.” Voyager Ins., 867 So.2d at 1077. Therefore, this Court must determine whether Grayson presented sufficient evidence that common questions of law or fact predominate over individual issues as to each of Grayson’s claims.

A. Fraud Claim

Grayson alleges that UFCU committed fraud by representing the $2.50 charge as a “filing fee” when UFCU filed nothing with a governmental agency. (Grayson’s brief at 15.) The elements of a fraud action are:

“ ‘(a) that the defendant made a false representation concerning a material fact; (b) “which (1) the defendant [either] knew was false when made, or (2) was made recklessly and without regard to its truth or falsity, or (3) was made by telling [the] plaintiff that [the] defendant had knowledge that the representation was true while not having such knowledge”; (c) which the plaintiff [reasonably] relied upon; and (d) “damage to the plaintiff proximately resulting from his reliance.” ’ ”

Reynolds Metals, 825 So.2d at 105 (quoting Ex parte Household Retail Servs., Inc., 744 So.2d 871, 877 (Ala.1999), quoting in turn Cato v. Lowder Realty Co., 680 So.2d 378, 381 (Ala.1993)) (bracketed language added in Reynolds).

This Court has previously noted that fraud actions are often not well suited for class-action certification. See, e.g., Ex parte Green Tree Fin. Corp., 723 So.2d 6, 10 n. 2 (Ala.1998) (“We note that the difficulties posed by attempting to certify a class where the claims require proof of subjective factors are typical in fraud cases; thus, courts have been reluctant to find fraud claims suitable for class certification.”) Courts are reluctant to certify fraud claims for class-action treatment because many fraud cases involve numerous misrepresentations and varying kinds or degrees of reliance, all of which create individualized issues. Id. However, this Court has also stated: “Whether a fraud claim is suitable for class-action treatment depends on the degree of similarity between the representations made to the class members.... Courts have often found that cases involving written misrepresentations distributed to all members of the class are suitable for class treatment.” Ex parte Household Retail Servs., 744 So.2d at 877; see also Ex parte AmSouth Bancorporation, 717 So.2d 357, 365 (Ala. 1998) (“questions of fraud based on documents are more typically suited for class-action determination”). Grayson argues, and the trial court noted, that the alleged fraud in this case stems from a common, uniform “core” or nucleus of facts, namely, that a uniform misrepresentation was made to each and every member of the putative class: i.e., that they were paying a $2.50 “filing fee” when, in fact, nothing was actually filed with a government agency. Because this alleged misrepresentation is uniform, Grayson argues, common issues predominate.

Even if the alleged misrepresentations in a fraud case are uniform or have a “common core,” the action may still be unsuited for class-action treatment if the degree of reliance varies among the persons to whom the representations were . made. See Alfa Life Ins. Corp. v. Hughes, 861 So.2d 1088, 1097 (Ala.2003) (“Even if numerous representations have a ‘common core,’ an action may still be unsuited for class-action treatment if material variations exist in the representations or if the degree of reliance varies among the persons to whom the representations were made.” (emphasis added)); see also Committee Comments, Rule 23(b)(3), Fed. R.Civ.P. (“although having some common core, a fraud case may be unsuited for treatment as a class action if there was material variation in the representations made or in the kinds or degrees of reliance by the persons to whom they were addressed”). In Hughes, an insurance policyholder alleged that his insurer, Alfa Life Insurance Corporation, had made certain fraudulent misrepresentations to him and to members of a class of policyholders. Hughes, 861 So.2d at 1098. This Court stated:

“Even if we were to find that the misrepresentations the Alfa agents made to the plaintiff policyholders were uniform, the issue of each class member’s ‘reasonable reliance’ precludes class certification of the fraudulent-misrepresentation claim. See Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala. 1997). The plaintiff policyholders contend that there was common reliance by the class members and that ‘[ejveryone acted the same.’ Plaintiff policyholders’ brief, p. 62 n. 22. The trial court agreed and concluded that because of the objective ‘reasonable reliance’ standard, individualized inquiries would not be necessary. However, a determination of each class member’s reliance would require individualized inquiry as to whether that reliance was reasonable ‘ “based on all of the circumstances surrounding [the] transaction, including the mental capacity, educational background, relative sophistication, and bargaining power of the parties.” ’ Reynolds Metals [Co. v. Hill], 825 So.2d [100] at 108 [(Ala.2002)] (quoting Foremost Insurance, 693 So.2d at 421)).”

861 So.2d at 1100. See also Voyager Ins., 867 So.2d at 1070 (recognizing that the plaintiffs failure to prove whether class members had relied on misrepresentations or omissions made class certification inappropriate).

UFCU maintains that class-action certification is improper in this case in light of the individualized inquiries that would be necessary to prove each class member’s reliance on the alleged misrepresentation. Specifically, UFCU claims that Grayson failed to present evidence indicating that any borrower had relied on the representation that the $2.50 charge was to be used to pay for filing documents with a government agency. In support of this contention, UFCU filed in the trial court six affidavits of borrowers who claimed that they had, between 1985 and 2001, executed a promissory note with UFCU, that it did not matter to them what UFCU called the $2.50 charge, and that they would have borrowed from UFCU the money to purchase their vehicles no matter how the charge was described in the promissory note. In addi-

tion, Grayson testified as follows at the certification hearing:

“Q. [UFCU’s counsel:] Now, do you have or are you offering the Court today any information about how people other than you perceived what was meant by filing fee?
“A. [Grayson:] Do I have what?
“Q. Are you offering the Court today any information as to what other members of the class understood the words ‘filing fee’ to mean?
“A. No.
“Q. And you’re aware that we filed affidavits from people saying that they did not believe it was a governmental filing fee, or do you know that one way or another?
“A. I knew there were some affidavits, yes.
“Q. Okay. Now, let me ask you this, if the credit union had said here’s $2.50 and it’s pure profit, would you have taken out the loan anyway, even if they wanted another $2.50 pure profit?
“A. I don’t know. I don’t know that I would.
“Q. Are you telling the Court in truth that you would have turned down a loan for that Cadillac [automobile] over $2.50, regardless of what they got?
“A. I don’t know. I might just in principle. There’s other lending institutions besides the credit union.
“Q. But you certainly can’t tell the Court that other people would have acted — would have turned that loan down regardless of — -over $2.50?
“A. No. And neither can you.”

UFCU argues that this testimony demonstrates not only that Grayson did not prove that other members had relied on the alleged misrepresentation, but also that Grayson did not prove her own reliance on the alleged misrepresentation. We agree.

Based upon the record before us, we hold that Grayson failed to produce sufficient evidence tending to show that any of the putative class members (including herself) relied on the alleged misrepresentation in this case. Therefore, Grayson has failed to demonstrate that the “questions of law or fact” regarding the essential element of reliance are “common to the members of the class [and] predominate over any questions affecting only individual members.” Rule 23(b)(3). See Reynolds Metals, 825 So.2d at 105 (holding that because the class representatives did not testify that they relied on the defendant’s alleged misrepresentations, the plaintiffs failed to satisfy their burden of proving that common issues as to the element of rebanee predominated over individual issues). In fact, the evidence here instead demonstrates that there are material variations in the degree of reliance of the class members. Because Grayson failed to produce evidence indicating that the common issues predominate over the individual issues with regard to the element of reliance, the trial court exceeded its discretion in certifying this claim for class-action treatment. See Castano v. American Tobacco Co., 84 F.3d 734, 745 (5th Cir.1996) (“a fraud class action cannot be certified when individual reliance will be an issue”).

B. .Fraudulent-Suppression Claim

To establish a claim of fraudulent suppression, the plaintiff must produce substantial evidence showing:

“(1) that the' defendant had a duty to disclose an existing material fact; (2) that the defendant suppressed that existing material fact; (3) that the defendant had actual knowledge of the fact; (4) that the defendant’s suppression of the fact induced the plaintiff to act or to refrain from acting; and (5) that the plaintiff suffered actual damage as a ■ proximate result.”

State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 323-24 (Ala.1999).

UFCU argues that Grayson failed to produce sufficient evidence indicating that UFCU owed a duty to any putative class member to disclose or that any class member was induced to secure an automobile loan by UFCU’s actions. Additionally, UFCU claims that the trial court would be forced to make a detailed inquiry as to each and every class member to determine whether UFCU owed that member a duty to' disclose and whether UFCU had induced each individual to act. This, UFCU maintains, makes the class unmanageable. We agree.

In Ex parte Government Employees Insurance Co., 729 So.2d 299 (Ala.1999), the trial court was asked to certify a class in an action brought by certain policyholders alleging suppression. In holding that the claim was unsuited for class-action certification, this Court stated:

“Alabama caselaw emphasizes that in a case alleging fraudulent suppression the trial court must examine the facts to determine whether the defendant had a duty to disclose; this element of duty to disclose, applicable in the case alleging suppression, is analogous to the element of reliance applicable in the case alleging a misrepresentation. Mack v. General Motors Acceptance Corp., 169 F.R.D. 671, 677 (M.D.Ala.1996). ‘The impact of this law, however, on the class certification decision, is fatal.’ Id. The district court in Mack determined that before it could determine the threshold liability of the defendant, GMAC, to a particular class member, it would have to examine all of the facts and circumstances relating to that individual class member to determine if under Alabama law the defendant had had a duty to disclose. Id. In the ordinary fraud action, there must be proof of reliance. Id. at 678. Resolving the issue of reliance would require the court to examine the representations made by [the defendant insurer] to each of its policyholders regarding the uninsured-motorist coverage and the medical-payments provision. Id. ‘There is a seemingly endless permutation of facts which the court will have to examine to determine the validity of each class member’s claim.’ Id. It would be overly time-consuming and factually overwhelming to resolve each class member’s reliance or lack thereof. To make this essential fraud analysis in this present case would require the court to examine over 36,000 individual policy claims to determine, in each individual situation, the presence of ‘reliance’ or a ‘duty to disclose.’ ”

Government Employees Ins. Co., 729 So.2d at 306. Similarly, the trial court in this case will be required to examine the circumstances of each individual class member in order to determine whether UFCU undertook a duty to disclose, the nature of the $2.50 “filing fee” to each member. Such inquiries are “individual issues that are inappropriate for class certification.” Compass Bank v. Snow, 823 So.2d at 674.

Additionally, as noted in Part U.A., Grayson failed to demonstrate that common questions regarding reliance predominate over individualized questions. In the same vein, Grayson has thus failed show that common questions regarding the analogous issue, whether the putative class members were “induced” to act, predominate over ' individual questions. See Household Retail Servs., 744 So.2d at 879 (holding that class certification was inappropriate in an action alleging suppression where the plaintiff failed to demonstrate that the class had relied on the defendant’s nondisclosure). Because Grayson presented no evidence indicating that UFCU had a duty to disclose and has failed to prove that the putative class members were induced by UFCU to act, the trial court exceeded its discretion in certifying the suppression claim for class-action treatment.

C. Breach-of-Fiduciary-Duty Claim

Traditionally, the creditor-debtor relationship between a bank and its customer does not impose a fiduciary duty of disclosure on a bank. Faith, Hope & Love, Inc. v. First Alabama Bank of Talladega County, N.A., 496 So.2d 708, 711 (Ala.1986). On the other hand, a fiduciary duty may arise when a customer reposes trust in a bank and relies on the bank for financial advice, or in other special circumstances. K & C Dev. Corp. v. AmSouth Bank, N.A., 597 So.2d 671, 675 (Ala.1992); Baylor v. Jordan, 445 So.2d 254, 256 (Ala. 1984). Moreover, a fiduciary or confidential relationship has been defined as one in which

“ ‘one person occupies toward another such a position of adviser or counselor as reasonably to inspire confidence that he will act in good faith for the other’s interests, or when one person has gained the confidence of another and purports to act or advise with the other’s interest in mind; where trust and confidence are reposed by one person in another who, as a result, gains an influence or superiority over the other; and it appears when the circumstances make it certain the parties do not deal on equal terms, but, on the one side, there is an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed; in both an unfair advantage is possible. It arises in cases in which confidence is reposed and accepted, or influence acquired, and in all the variety of relations in which dominion may be exercised by one person over another.’ ”

Holdbrooks v. Central Bank of Alabama, N.A., 435 So.2d 1250, 1252 (Ala.l983)(quot-ing 15A C.J.S. Confidential (1967)); see also K & C Dev. Corp., 597 So.2d at 675.

Grayson claims that a fiduciary duty arose in this case because, she says, UFCU undertook a duty to disclose the nature of the $2.50 charge to the putative class members. As evidence of this duty, Grayson points to Bryan’s testimony, in which Grayson claims that Bryan “acknowledged that [UFCU] had an obligation to inform the customer about the ‘filing fee.’ ” (Grayson’s brief at 20.) The record, however, reveals that Bryan actually testified that he believed UFCU had a duty only to inform its customers that the charge existed, which Bryan claimed UFCU satisfied, and not a duty to explain the details of the charge. There is no other evidence in the record indicating that UFCU undertook a duty to disclose or that it had any other fiduciary relationship with any member of the putative class.

We find that Grayson presented no evidence to indicate that UFCU owed the putative class members a fiduciary duty. In fact, there is no evidence of a relationship other than that of debtor-creditor, which imports no presumption of a fiduciary or confidential relationship. The trial court will thus be required to conduct individual inquiries into each class member’s relationship with UFCU in order to determine whether the class members reposed trust in UFCU, whether the members relied on UFCU for financial advice, or whether other special circumstances existed between the member and UFCU. These individualized questions outweigh and predominate over common questions, thus making the breach-of-fiduciary-duty claim improper for class certification under Rule 23(b)(3).

D. Negligence/Negligent-Supervision Claim

UFCU maintains that the trial court erred in certifying Grayson’s negligence/negligent-supervision claim for class-action treatment. We note that a party alleging negligent supervision and hiring must prove the underlying wrongful conduct of the defendant’s agents. Voyager Ins. Cos. v. Whitson, 867 So.2d at 1073 (citing Stevenson v. Precision Standard, Inc., 762 So.2d 820 (Ala.1999)). In Voyager Insurance, the plaintiff customers alleged that the defendant, Voyager, negligently hired and/or supervised its agents, resulting in wrongful conduct in the sale of credit-property and credit-life insurance. 867 So.2d at 1073. Additionally, the customers argued that common issues predominated over individualized issues, because their claim was based on Voyager’s common course of conduct in charging customers premiums on contracts with Voyager’s agents. Id.

This Court noted that the alleged underlying wrongful conduct of Voyager’s agents—fraud, suppression, and deceit— required proof of the element of reliance. Voyager Ins., 867 So.2d at 1073. We held that the customers failed to show that common questions of fact regarding this element predominated over individual issues. Id. Therefore, the customers failed to meet their burden under Rule 23(b)(3), and class certification of the negligent-hiring claim was inappropriate. Id.

In this case, Grayson alleges that UFCU was negligent “by allowing, condoning or instructing its employees to do improper and/or illegal acts,” namely, “charging non-existent filing fees.” While Grayson does not explain the nature of these improper and/or illegal acts, she does incorporate, by reference, the rest of her complaint. We take this to be an allegation by Grayson that UFCU’s employees are guilty of the other torts she alleges in her complaint.

As noted above, Grayson’s fraud, fraudulent-suppression, and breaeh-of-fiduciary-duty claims are not suitable for class-action certification because individual issues predominate over common issues as to those claims, making the class unmanageable. Because the alleged wrongs underlying Grayson’s negligent-supervision claim would require individualized determinations, the negligence/negligent-supervision claim likewise is unsuited for class-action certification. Therefore, the trial court exceeded its discretion in certifying the negligence/negligent-supervision claim for class-action treatment. See Voyager Ins., supra.

E. Breach-of-Contract Claim

Grayson claims that UFCU breached its contract with those who executed promissory notes because the “filing fee” was not used to pay for filing documents with a governmental agency. UFCU, on the other hand, claims that the idea that the fee was used to file documents with a governmental agency is Grayson’s own subjective interpretation of the contract, which Grayson did not prove was shared by other borrowers. In support of this claim, UFCU argues that Grayson, when asked during the class-certification hearing if the other class members shared her interpretation, stated:

“[UFCU’s counsel:] ... [W]hat do you understand the filing fee to mean?
“[Grayson:] I assume that they were filing something with the State or someone.
“Q. It doesn’t say that, though, does it?
'“A. No.
“Q. You just assumed that?
“A. When you pay a filing fee, it’s paid to have a — somebody file something to get a title of an automobile.
“Q. Normally, it’s not $2.50, it’s—
“A. Well, yes, you’re right, it’s usually 16.50.
“Q. So you can’t tell us how — what anyone else thought that meant, can you?
“A. No, I’m sorry. I can’t read the minds of strangers.
“Q. And you can’t tell us one way or the other whether a different disclosure would have made any difference to them, can you?
“A. No.”

Grayson’s testimony, UFCU argues, demonstrates that the term “filing fee” is, at best, ambiguous.

“When a trial court [in a class action] is [faced] with a contract issue, it is important for the trial court to determine as soon as practicable the ‘threshold issue’ whether the contract is ambiguous. If the trial court determines that there is no ambiguity, it must ‘ “determine the force and effect of the terms of the contract as a matter of law.” ’ Cherokee Farms, Inc. [v. Fireman’s Fund Ins. Co.], 526 So.2d [871] at 873 [(Ala. 1988)], quoting Wigington v. Hill-Soberg Co., 396 So.2d 97, 98 (Ala.1981). However, if the trial court finds the contract to be ambiguous, it ‘must employ established rules of contract construction to resolve the ambiguity.’ Voyager Life Ins. Co. v. Whitson, 703 So.2d 944, 948 (Ala.1997). If the application of such rules is not sufficient to resolve the ambiguity, factual issues arise:
“ ‘If one must go beyond the four corners of the agreement in construing an ambiguous agreement, the surrounding circumstances, including the practical construction put on the language of the agreement by the parties to the agreement, are controlling in resolving the ambiguity.’
“Id. at 949. Where factual issues arise, the resolution of the ambiguity becomes a task for the jury. McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853 (Ala.1991).
“It is particularly important for the trial court to determine whether the contract is ambiguous before deciding whether to certify a class. Under some circumstances, this Court has held that the conclusion that a contract was ambiguous was fatal to a claim for class certification. Mann v. GTE Mobilnet of Birmingham, Inc., 730 So.2d 150, 155 (Ala.1999) (failure to ‘satisfy the commonality requirement of Rule 23(a)(2) as to questions of fact, because the evidence necessary to resolve those questions of fact will vary from case to case’). See also Lackey v. Central Bank of the South, 710 So.2d 419 (Ala.1998) (trial court did not abuse its discretion in de-certifying a class, when it determined that the evidence of an ambiguity rendered class certification improper on a breach-of-contract claim) (plurality opinion).”

Alfa Life Ins. Corp. v. Johnson, 822 So.2d 400, 404-05 (Ala.2001)(emphasis added). Additionally, because resolving an ambiguity forces the finder of fact to determine how each individual class member interpreted the ambiguous language, an ambiguity may foreclose the conclusion that common issues predominate over individual issues. General Motors Acceptance Corp. v. Dubose, 834 So.2d 67, 72-73 (Ala. 2002).

The trial court exceeded its discretion by certifying a Rule 23(b)(3) class action without first determining the “threshold issue” whether the promissory note is ambiguous. Johnson, 822 So.2d at 405. Therefore, on remand, the trial court should determine if the requirement in.the promissory note that the party to the note pay a “filing fee” is ambiguous. If so, the trial court should determine what effect the ambiguity has on whether class certification is appropriate. Johnson, supra.

III.

The trial court’s order indicates that it certified Grayson’s malicious-conversion claim for treatment as a class action. Grayson’s complaint stated this claim as follows:

“30. The above and foregoing paragraphs are incorporated hereby referenced and are made apart hereof [sic].
“31. The defendant, UFCU, has failed and refused to refund certain monies to the plaintiff, previously wrongfully deducted from her account, representing the amount of interest charged to her account and UFCU failed and refused to apply these payments to the loan balance, thus providing defendant UFCU additional interest which was not earned.
“32. Such actions on the part of defendant UFCU constitutes malicious conversion.”

Grayson’s malicious-conversion count is specific: it alleges that only UFCU’s biweekly payroll-deduction plan, not the $2.50 filing fee, amounted to conversion. The trial court, as noted above, did not certify a class as to Grayson’s payroll-deduction claim.

Nothing in the record indicates that the complaint was ever amended to allege that UFCU’s charging $2.50 as a “filing fee” also amounted to conversion. See Rule 15, Ala. R. Civ. P. Furthermore, it is axiomatic that a trial court may not certify a class as to a claim not alleged in the complaint. See Allstate Ins. Co. v. Ware, 824 So.2d 739 (Ala.2002). Because Grayson did not claim that UFCU’s charging the $2.50 “filing fee” amounted to a conversion, the trial court exceeded its discretion in certifying that claim for class-action treatment.

IV.

UFCU claims that the trial court exceeded its discretion in finding that Grayson would fairly and adequately protect the interests of the class. See Rule 23(a)(4). Specifically, UFCU argues that Grayson’s interests are in conflict with the class because her husband, who is an attorney, entered into a referral fee agreement with Grayson’s class counsel in this case. Thus, UFCU concludes, Grayson has an interest in maximizing the attorney fees in this case instead of the class’s award.

Some courts have held that a conflict of interest occurs when a class representative is the spouse of the class counsel. See, e.g., Stull v. Pool, 63 F.R.D. 702 (S.D.N.Y. 1974); but see Sweet v. Bermingham, 65 F.R.D. 551, 554 (S.D.N.Y.1975) (holding that the class representative, who was the spouse of a member of class counsel’s firm, did not have interests antagonistic to the class). It is unclear from the record, however, the specific nature of the agreement between Grayson’s husband and her class counsel in this case. Class counsel testified at the certification hearing that he planned to pay Grayson’s husband a referral fee, but only if the court permitted it. Under these scant facts, we cannot hold that the trial court exceeded its discretion in finding that Grayson could adequately represent the class.

Conclusion

We hold that the trial court erred in certifying a class action as to Grayson’s fraud, suppression, breach-of-fiduciary-duty, malicious-conversion, and negligence/negligent-supervision claims. As to Grayson’s breach-of-contract claim, the trial court should determine on remand whether the promissory note is ambiguous and address the impact of its finding on whether Grayson’s breach-of-contract action is suited for class certification.

ORDER VACATED; CAUSE REMANDED.

SEE, LYONS, HARWOOD, and STUART, JJ., concur.

      . “Direct” automobile loans are loans that are initiated by the borrower at the UFCU branch. When it makes a direct loan, UFCU applies for the certificate of title for the financed automobile.

      . UFCU claims in its brief that the trial court did not certify Grayson's deceptive-trade-practices claim. However, we note that the trial court’s order states that Grayson alleged deceptive trade practices as to both of her proposed class actions, and that the trial court certified the “filing fee” class without excepting any of Grayson's causes of action. Neither of the briefs discuss this issue. While it is not clear whether the trial court intended to certify the deceptive-trade-practices claim, we hold that the trial court exceeded its discretion if it did so. See Ala.Code 1975, § 8-19-10(f) (“A consumer or other person bringing an action under this chapter may not bring an action on behalf of a class....”); Ex parte Exxon Corp., 725 So.2d 930, 933 (Ala.l998)("Alabama law does not allow consumers to bring class actions based on deceptive trade practices.").

      . UFCU argues that the trial court’s certification order is unclear as to whether the certified class includes UFCU members who entered into promissory notes before 1993, in which the $2.50 charge was denoted as a "pre-paid finance charge” instead of as a filing fee. However, we believe it is clear that the trial court certified claims relating only to members who entered into the new promissory notes, because the trial court's order states it was certifying the claims of those members who had paid a "filing fee.” Moreover, certifying a class for members who paid what was denoted as a "prepaid finance charge” would be incongruent with Grayson’s theory of the case, namely, that UFCU charged a filing fee although it never filed anything with a governmental agency.

      . While the record indicates that the trial court determined that the payroll-deduction plan contract was unambiguous, it made no such determination regarding the promissory note.


text:
    CITY OF FOLEY BOARD OF ADJUSTMENTS AND APPEALS v. H & S SOUTHERN GRAPHICS SYSTEMS, INC.
    1020730.
    Supreme Court of Alabama.
    Sept. 26, 2003.

      J. Casey Pipes of Helmsing, Leach, Her-long, Newman & Rouse, P.C., Mobile, for appellant.
    Daniel G. Blackburn and Cynthia J. Sherman of Blackburn & Conner, P.C., Bay Minette; and Edgar P. Walsh of En-gel, Walsh & Associates, Mobile, for appel-lee.
   MADDOX, Retired Justice.

This appeal involves a dispute between a municipal board of adjustment and a company that owns advertising billboard structures; the question presented is whether changes the company made in two of its billboards violated a municipal zoning ordinance that prohibited changes that prolonged or enhanced the useful life of the billboard or that increased its size, shape, location, angle, or height. Based on the record before us, we conclude that, as a matter of law, the changes the company made in the billboards violated the ordinance; therefore, we reverse and remand.

H & S Southern Graphics Systems, Inc. (“Southern Graphics”), a company that owns advertising billboard structures, appealed from a decision of the City of Foley Board of Adjustments and Appeals (“the Board”) holding that changes Southern Graphics had made in two of its billboards located along the Foley Beach Express, a toll road in Baldwin County, violated an ordinance of the City of Foley.

The case was tried before a jury, and at the close of Southern Graphics’ case-in-chief, the Board moved for a judgment as a matter of law; it renewed the motion at the close of all the evidence. The trial court denied both motions. The jury returned a verdict for Southern Graphics, and the trial court entered a judgment on that verdict. The Board appealed. We reverse and remand.

Facts

In 2000, Southern Graphics applied for and received sign permits and building permits from the City of Foley to construct two “double stack” billboards along the Foley Beach Express. Each permit allowed Southern Graphics to erect a billboard consisting of two 10 1/2-foot by 36-foot stacked sign faces, that is, one on top of the other, in each direction of travel. Southern Graphics’ application for the permits and its engineering plans stated that the billboards would contain a total of 756 square feet of advertising space in each direction of travel. The stacked signs were designed to be, and were originally constructed to be, separated by a four-foot gap, and each of the two sign faces had lights, a catwalk, and an apron attached to the bottom. Both permits were issued on March 27, 2000, and construction of the billboards began soon thereafter.

On July 3, 2000, the City of Foley passed a zoning ordinance that specifically addressed outdoor advertising along the Foley Beach Express. The two billboards Southern Graphics had been issued permits for violated the provisions of the new ordinance because they were located within 660 feet of the Foley Beach Express and they were visible from the Foley Beach Express. The ordinance, however, “grandfathered in” existing billboard structures as legal nonconforming signs and they were allowed .to remain, but with certain restrictions. Some of those restrictions read, as follows:

“(B) A legal nonconforming billboard may not be:
“(1) Structurally altered, amended or repaired so as to prolong or enhance the useful life of the billboard;
“(2) Altered, changed or moved in any manner that increases its size, shape, location, angle, or height ....

(Emphasis added.)

On February 22, 2001, the City of Foley received a complaint that work was being performed on several of Southern Graphics’ billboards on the Foley Beach Express. Southern Graphics had not applied for or obtained a building or sign permit to do work on the billboards. Consequently, the zoning administrator and building inspector for the City of Foley, Chuck Lay, met with Robert Griffin of Southern Graphics to advise him to stop work on the billboards. Despite being told that he could not alter the signs without a building permit and despite being told that the intended changes to the signs violated the zoning ordinance, Southern Graphics proceeded to make changes to the two billboard structures. The changes included removing the lights, apron, and catwalk that serviced the top sign of the stacked sign and filling in the four-foot gap between the two signs to join the two sign faces into one larger sign face.

In making these changes, Southern Graphics increased the total square footage of the sign face on the stacked signs from 756 square feet to 900 square feet. By making these changes, Southern Graphics also changed the shape of the sign from two 10 1/2-foot by 36-foot signs to one 25-foot by 36-foot sign.

The zoning administrator determined that the changes to the billboards violated the ordinance. Southern Graphics then appealed that determination to the Board and requested a variance; the Board found that the changes Southern Graphics had made to the billboard structures violated the ordinance and denied Southern Graphics’ request for a variance on September 12, 2001. Southern Graphics then appealed the Board’s decision to the Baldwin Circuit Court, and a jury found that it had not violated the provisions of the ordinance. The trial judge entered a judgment based on the jury verdict. The Board appealed.

Many of the above-stated facts are undisputed, and Southern Graphics states in its brief that it “is satisfied with the Statement of the Facts set forth by the Board” in its brief to this Court, except that Southern Graphics “objects to the Board’s statement as fact that ‘[ojbsolescence is a factor in determining the “useful life” of a structure under this ordinance.’ ” (Southern Graphics’ brief, pp. 1-2.) Southern Graphics says that the ordinance does not define or refer to “obsolescence” and does not define “useful life,” “[n]or does it set forth any factors to be used to determine ‘useful life.’ ” (Southern Graphics’ brief, p. 2.) Southern Graphics also “objects to the Board’s statement [in its brief,] as fact that Southern Graphics made these changes to their billboards in an attempt to help market the signs and make them more attractive to companies interested in advertising on billboards.” (Southern Graphics’ brief, p. 2.)

Standard of Review

In view of the fact that the parties substantially agree as to all of the facts that are pertinent to determining whether the billboards violated the provisions of the ordinance, our standard of review is de novo. See Ex parte Norwood, 615 So.2d 1210, 1212 (Ala.Civ.App.1992) (“‘[construction of a zoning ordinance is a question of law1 ”); see also Civitans Care, Inc. v. Board of Adjustment of Huntsville, 437 So.2d 540 (Ala.Civ.App.1983); and Burnham v. City of Mobile, 277 Ala. 659, 174 So.2d 301 (1965).

Although this case was heard by a jury and although the law provides that a jury’s findings of fact are presumed correct, that presumption has no application when the trial court has been shown to have improperly applied the law to the facts. Cf. Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992), and Smith v. Style Adver., Inc., 470 So.2d 1194 (Ala.1985). See also Beavers v. County of Walker, 645 So.2d 1365 (Ala.1994); Justice v. Arab Lumber & Supply, Inc., 533 So.2d 538 (Ala.1988); First Nat’l Bank of Mobile v. Duckworth, 502 So.2d 709 (Ala.1987); Barrett v. Odom, May & DeBuys, 453 So.2d 729 (Ala.1984).

Discussion

With the above-stated standard of review firmly in mind, and because this appeal involves the interpretation of a municipal zoning ordinance, we begin our opinion by stating some general principles of law that this Court recently set forth in Ex parte Lamar Advertising Co., 849 So.2d 928 (Ala.2002). This Court stated:

“This Court recognizes ‘that a municipality may establish a comprehensive land-use plan and effectuate that plan through a scheme of comprehensive zoning regulations.’ Budget Inn of Daphne, Inc. v. City of Daphne, 789 So.2d 154, 158 (Ala.2000). However, a city ordinance is subject to the same general rules of construction as is an act of the Legislature, S & S Distrib. Co. v. Town of New Hope, 334 So.2d 905 (Ala. 1976). In John Deere Co. v. Gamble, 523 So.2d 95, 99-100 (Ala.1988), this Court, quoting Clark v. Houston County Comm’n, 507 So.2d 902, 903-04 (Ala. 1987), set out the following general rule of statutory construction, which applies to the construction of a municipal ordinance:
“ ‘ “The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985); League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). If possible, the intent of the legislature should be gathered from the language of the statute itself. Advertiser Co. v. Hobbie, supra; Morgan County Board of Education v. Alabama Public School & College Authority, 362 So.2d 850 (Ala.1978).” ’
“In Ex parte Pfizer, Inc., 746 So.2d 960, 964 (Ala.1999), this Court stated:
“ ‘ “When the language of a statute is plain and unambiguous, ... courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning — they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature.” Ex parte T.B., 698 So.2d 127, 130 (Ala.1997). Justice Houston wrote the following for this Court in DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270 (Ala.1998):
“ ‘ “In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
“ ““ ‘Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ”” ”

849 So.2d at 930. In Moore v. Pettus, 260 Ala. 616, 71 So.2d 814 (1954), this Court stated:

“The intention of zoning laws as regards a use of nonconforming property is to restrict rather than extend it. Fulford v. Board of Zoning of City of Dothan, 256 Ala. 336, 54 So.2d 580 [(1951)]. The objective is the gradual elimination of the nonconforming use by obsolescence or destruction by fire or the elements. Given the objective of zoning to eliminate nonconforming uses, courts throughout the country generally follow a strict policy against their extension or enlargement. San Diego County v. McClurken, 37 Cal.2d 683, 234 P.2d 972 [(1951)], and cases cited there. The whole purpose and spirit of the zoning ordinance would be defeated if an owner is permitted to substitute permanent brick walls for rotted exterior walls, put in new flooring in place of rotted flooring, put on a new roof and build a new addition, as this would extend or prolong indefinitely the life of the nonconforming building. Selligman v. Von Allm[e]n Bros., 297 Ky. 121, 179 S.W.2d 207 [(1944)].”

260 Ala. at 627, 71 So.2d at 824-25 (emphasis added). As stated above, the ordinance in this case, which permitted a nonconforming use, nevertheless contained the following restrictions:

“(B) A legal nonconforming billboard may not be:
“(1) Structurally altered, amended or repaired so as to prolong or enhance the useful life of the billboard;
“(2) Altered, changed or moved in any manner that increases its size, shape, location, angle, or height....”

The Board argues that although Southern Graphics’ billboard structures were “grandfathered in” under the ordinance as it existed before the new ordinance was enacted and were therefore “legal nonconforming billboard[s],” Southern Graphics structurally altered the billboards to enhance their useful life in violation of the zoning ordinance. We need not decide that issue, because it is clear that the changes Southern Graphics made to the billboard structures violate the restriction in the ordinance that a sign could not be “[a]ltered, changed or moved in any manner that increases its size, shape, location, angle, or height.” It is quite obvious that the signs were altered or changed to increase their size. That was not true in Lamar Advertising. As stated in footnote one of that opinion, the newly installed trivision sign did not change the square footage of advertising displayed. That is not true in this case. Here, it is undisputed that Southern Graphics changed its billboards so that the total advertising space was increased by 144 square feet — from 756 square feet to 900 square feet in each direction of travel. As stated above, Southern Graphics’ application and engineering plans stated that the billboards would contain a total of 756 square feet of advertising space in each direction of travel.

The judgment of the trial court, holding that Southern Graphics’ alteration of its billboards did not violate the new zoning ordinance, is reversed and the case remanded for proceedings consistent with this opinion.

This opinion was prepared by retired Justice Hugh Maddox, sitting as a Justice of this Court pursuant to § 12-18-10(e), Ala.Code 1975.

REVERSED AND REMANDED.

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

      . Although Southern Graphics' notice of appeal from the decision of the Board referred to the Board’s denial of its request for a variance, this issue was not litigated. The case was tried only on the issue of the Board’s determination that an improper change in the existing billboards had been made in violation of the ordinance. In fact, Southern Graphics did not challenge the validity of the zoning ordinance, but merely challenged whether its actions were prohibited by the terms of the ordinance.

      . This objection appears to lack merit in view of the testimony of Griffin that Southern Graphics "thought it would be good to incorporate one ad on the double sign as opposed to two,” and that “[f]rom a sales standpoint, it's easier to sell one ad than two ads.” Griffin further testified that Southern Graphics "wanted to try [the changes] on a couple of them to see what sort of response we got from the advertising community.”


author: YATES, Presiding Judge.

text:
    E.D.G. v. M.S.
    2020401.
    Court of Civil Appeals of Alabama.
    Oct. 24, 2003.

      Michael J. Cartee, Tuscaloosa, for appellant.
    Robert H. Turner, Jr., Marion, for ap-pellee.
   YATES, Presiding Judge.

The Juvenile Court of Hale County entered an order on August 14, 2002, awarding M.S. custody of his two minor stepchildren. On August 28, 2002, E.D.G. (“the father”) filed a postjudgment motion to alter, amend, or vacate the judgment. The father then filed his notice of appeal to this court on January 21, 2003.

On appeal, the father contends that this case was incorrectly styled as a juvenile court proceeding and that his appeal should be treated as an appeal from a circuit court proceeding. He argues that a circuit judge’s involvement in juvenile cases is unusual in Hale County. The father argues that the proceeding was not a juvenile court proceeding governed by the Alabama Rules of Juvenile Procedure; rather, he argues that the Alabama Rules of Civil Procedure govern the proceeding.

In Alabama, both juvenile courts and circuit courts have original jurisdiction with respect to child-custody issues raised in actions in those respective courts’ jurisdiction. See Ex parte Lipscomb, 660 So.2d 986 (Ala.1994). Here, the father’s notice of appeal was untimely filed under Rule 4 of the Alabama Rules of Appellate Procedure whether the action was a juvenile court proceeding or a circuit court proceeding. If the action was a juvenile court proceeding, his notice of appeal should have been filed no later than September 25, 2002; if the action was a circuit court proceeding, the father would have had to perfect an appeal on or before January 7, 2003. The father’s notice of appeal filed on January 21, 2003, is untimely whether the case is treated as a juvenile court proceeding or as a circuit court proceeding; therefore, it is not necessary to determine whether the trial court was acting as a juvenile court.

Because the father’s notice of appeal was untimely filed, this court lacks jurisdiction; therefore, the appeal is dismissed. See Rule 2(a)(1), Ala. R.App. P.

APPEAL DISMISSED.

CRAWLEY, THOMPSON, and MURDOCK, JJ., concur.

PITTMAN, J., concurs in the result.