author: CRAWLEY, Judge. CRAWLEY, Judge.

text:
    MORRIS CONCRETE, INC. v. Jessie WARRICK d/b/a Speed Tech Automotive, and Bennie Childress.
    2011265.
    Court of Civil Appeals of Alabama.
    May 23, 2003.
    Opinion on Return from Remand July 25, 2003.

      Carroll H. Sullivan and Benjamin C. Heinz of Clark, Scott & Sullivan, P.C., Mobile, for appellant.
    Michael A. Dasinger III of Hoiles, Da-singer & Hollon, P.C., Robertsdale, for appellee Jessie Warrick.
    C. Andrew Harrell, Jr., of Herbert & Harrell, LLC, Gulf Shores, for appellee Bennie Childress.
   CRAWLEY, Judge.

Morris Concrete, Inc., appeals from the trial court’s judgment in favor of Jessie Warrick d/b/a Speed Tech Automotive, and Bennie Childress. We affirm in part, reverse in part, and remand.

Childress, who was at the time an employee of Morris Concrete, purchased concrete from Morris Concrete at an employee-discounted rate and supplied it to Warrick in exchange for Warrick’s waiving a down payment on a pickup truck that he was selling to Childress. Warrick used the concrete as a foundation slab for a metal building, attached to his existing business, that he intended to use as a tire service shop. When Childress ordered the concrete, he specified that it needed to be capable of withstanding 3,000 pounds of pressure per square inch (“PSI”), which was required for the automobile lifts Warrick was going to have installed. After being informed by a representative of the automobile-lift company that there might be a problem with the quality of the concrete, Warrick contacted Morris Concrete. Morris Concrete subsequently employed an engineering company to test the concrete. The testing results indicated that the concrete’s tolerance was well below 3,000 PSI.

Warrick sued Childress and Morris Concrete alleging that he was a third-party beneficiary of the contract of sale between them and seeking damages on counts of breach of contract, breach of express warranty, breach of implied warranties of fitness for a particular purpose and merchantability, and fraud. Childress filed an answer and an amended answer to War-rick’s complaint; he also filed a cross-claim against Morris Concrete, seeking to be indemnified for any amount that the trial court awarded against him to Warrick. Morris Concrete filed an answer to War-rick’s complaint; it also filed a cross-claim against Childress, seeking to be indemnified by him to the extent that the trial court found against it and in favor of War-rick.

Morris Concrete filed a motion requesting the trial court to allow it to enter onto Warrick’s property to test the concrete; that motion was initially granted by the trial court. However, upon receiving a motion to reconsider that ruling by War-rick and a response thereto by Morris Concrete, the trial court conducted a hearing and set aside its previous ruling, thus preventing Morris Concrete from testing the concrete for a second time.

After conducting a bench trial on the parties’ claims, the trial court entered a judgment that stated:

“This cause having come before this Court for a final hearing on June 25, 2002[,] and the parties being present, with counsel, and the Court, on the evidence presented, finds in favor of [War-rick] and against [Childress] on breach of contract, in favor of [Warrick] and against [Morris Concrete] on breach of contract as [Warrick] being a third[-]party beneficiary, and in favor of [Warrick] and against [Morris Concrete] on breach of implied warranty and negligence and awards compensatory damages in the amount of $75,000.00, plus costs of court.
“The Court finds in favor of [Morris Concrete and Childress] and against [Warrick] on fraud and express warranty claims.
“On the cross[-]elaim by Childress against Morris [Concrete] the Court finds in favor of Childress and awards damages in the amount of $75,000.00.
“On the cross[-]claim by Morris [Concrete] against Childress the Court finds in favor of Childress.”

Morris Concrete filed a motion for a new trial or for the trial court to alter, amend, or vacate the judgment. The trial court denied that motion. Morris Concrete filed a notice of appeal to the supreme court. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Morris Concrete argues that the trial court erred by entering judgment in favor of Warrick and Childress because, it says, (1) Warrick was not a third-party beneficiary to a contract between it and Childress; (2) it did not breach the implied warranties of merchantability and fitness for a particular purpose; (3) Warrick provided no evidence to support an allegation of negligence; (4) the amount of damages awarded were excessive; (5) Childress was not entitled to damages in the amount of $75,000 on his cross-claim; (6) the trial court erred by not allowing it to enter onto Warrick’s property to test the concrete; and (7) the trial court erred by denying its motion for a new trial without conducting a hearing on the motion.

The trial court conducted a bench trial on the parties’ claims. Our review is therefore governed by the ore tenus standard of review.

“ ‘We note that under the ore tenus standard of review, the trial court’s findings of fact based on oral testimony, and a judgment based on those findings, are given a presumption of correctness. A judgment based on such findings will not be reversed unless it is shown to be plainly and palpably wrong. The appellate courts are not allowed to substitute their own judgment for that of the trial court if the trial court’s decision is supported by reasonable inferences to be drawn from the evidence. The reason for giving such deference to the trial judge’s findings based on disputed evidence in ore tenus proceedings is that the trial judge has the benefit of observing the witnesses’ manner and demeanor and has the better opportunity to pass upon the credibility of their testimony.’
“Ex parte Pielach, 681 So.2d 154, 154-55 (Ala.1996) (citations omitted). ‘Under the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness and will not be reversed unless found to be plainly and palpably wrong.’ Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992) (citations and internal quotation marks omitted).”

Creel v. Crim, 812 So.2d 1259, 1260-61 (Ala.Civ.App.2001). This court has further stated that:

“However, when the trial court improperly applies the law to facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston [v. Ames], 514 So.2d [877,] 878 [(Ala.1987)]; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). ‘Questions of law are not subject to the ore tenus standard of review.’ Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (‘[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.’).”

City of Prattville v. Post, 831 So.2d 622, 628 (Ala.Civ.App.2002).

I. Third-Party Beneficial

Morris Concrete first argues that the trial court erred by determining that Warrick was a third-party beneficiary to a contract between it and Childress.

“ ‘[I]t has long been the rule in Alabama that one who seeks recovery as a third-party beneficiary of a contract must establish that the contract was intended for his direct, as opposed to his incidental, benefit.’ Mills v. Welk, 470 So.2d 1226, 1228 (Ala.1985). ‘To recover under a third-party beneficiary theory, the complainant must show: 1) that the contracting parties intended, at the time the contract was created, to bestow a direct benefit upon a third party; 2) that the complainant was the intended beneficiary of the contract; and 3) that the contract was breached.’ Sheetz, Aiken & Aiken, Inc. v. Spann, Hall, Ritchie, Inc., 512 So.2d 99, 101-02 (Ala.1987).”

McGowan v. Chrysler Corp., 631 So.2d 842, 848 (Ala.1993).

At trial, Childress testified (1) that he informed Charlie Tolbert, a general manager at Morris Concrete, that he was going to purchase some concrete for War-rick as part of an agreement that they had made to exchange the concrete for a down payment on a pickup truck; (2) that he specified that the concrete needed to be able to withstand 3,000 PSI; and (3) that no one from Morris Concrete told him that he could not purchase the concrete for another person’s use. Warrick also testified that, when he was ready for the concrete to be delivered, he telephoned Morris Concrete’s plant, told the person on the line about his arrangement with Childress, and requested that the concrete be delivered. Morris Concrete subsequently delivered the' concrete to Warrick. There was other evidence to support a finding that there was a contract between Chil-dress and Morris Concrete and that the concrete provided did not meet the 3,000 PSI specification.

Representatives of Morris Concrete testified that it was against company policy for employees to use their employee discount to purchase concrete for other parties; however, that testimony did not tend to dispute Childress’s testimony that he had informed Charlie Tolbert, who did not testify at trial, about his arrangement with Warrick before he purchased the concrete. In light of the testimony presented and the presumption of correctness afforded a trial court’s judgment under the ore tenus standard of review, we cannot say that the trial court erred by determining that Warrick was a third-party beneficiary to the contract between Childress and Morris Concrete.

II. Breach of Implied Warranties

Morris Concrete also argues that the trial court erred by determining that it had breached the implied warranties of merchantability and fitness for a particular purpose. Morris Concrete further contends that it was the “manufacturer” not the “seller” of the concrete, relying on this court’s holding in Tucker v. General Motors Corp., 769 So.2d 895, 901 (Ala.Civ.App.l998)(reversed, in part, on other grounds, Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999)), that those implied warranties apply only to sellers and not to manufacturers. In Ex parte General Motors Corporation, supra, our supreme court noted:

“Implied warranties are governed by Alabama’s version of the UCC, codified in Title 7, Ala.Code 1975. Section 7-2-315, Ala.Code 1975, provides:
“ “Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under Section 7-2-316 an implied warranty that the goods shall be fit for such purpose.’
“... The implied warranty of merchantability is found in § 7-2-314(1), Ala.Code 1975, which provides:
“ ‘Unless excluded or modified (Section 7-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.’
“Subsection (2)(c) of that Code section provides that to be considered merchantable, goods must be ‘fit for the ordinary purposes for which such goods are used.’ As the Court of Civil Appeals held, ‘[t]o establish his claim of breach of the implied warranty of merchantability, [the claimant] must “ ‘prove the existence of the implied warranty, a breach of that warranty, and damages proximately resulting from that breach.’ ” ’ [Tucker v. General Motors Corp.,] 769 So.2d [895,] 901 [(Ala.Civ.App.1998)] (quoting Barrington Corp. v. Patrick Lumber Co., 447 So.2d 785, 787 (Ala.Civ.App.1984), quoting, in turn, Storey v. Day Heating and Air Conditioning Co., 56 Ala.App. 81, 83, 319 So.2d 279, 280 (1975)).”

769 So.2d at 911-12.

The previous discussion and consideration of the trial court’s holding that War-rick was a third-party beneficiary to a contract between Childress and Morris Concrete does not support Morris Concrete’s contention that it is a manufacturer under the facts of this case. Rather, Morris Concrete was the seller of the concrete to Childress, who was, in turn, purchasing it for Warrick’s use. Section 7-2-318, Ala. Code 1975, applies to the circumstances presented in this case; that section states:

“A sellers’ warranty, whether express or implied, extends to any natural person if it is reasonable to expect that such person may use, consume' or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.”

Accordingly, the implied warranties of merchantability and fitness for a particular purpose were available to Warrick, and the trial court properly considered whether Morris Concrete breached those warranties.

A. Implied, Warranty of Merchantability

There was testimony produced at trial by several witnesses which confirmed that there were problems with the concrete supplied by Morris Concrete. Varying testimony as to the cause was provided, i.e., the use of bad sand in the concrete mixture, a high amount of air or water in the concrete mixture, or some combination of those and other factors. Thus, there was testimony from which the trial court could have found that the concrete was not “fit for the ordinary purposes for which such goods are used,” § T—2—314(2)(c); therefore, it did not err by determining that this implied warranty had been breached.

B. Implied Warranty of Fitness for a Particular Purpose

Childress testified at trial, in pertinent part, as follows:

“Q. Now, did you specify to Morris Concrete what strength you wanted?
“A. Yes, sir.
“Q. Did you tell them what this purpose was for?
“A. Yes, sir.
“Q. What did you tell him?
“A. I told him it was going into a tire shop.
“Q. You told them specifically it was going to a tire shop?
“A. Yes, sir, going to a tire shop.”

Although conflicting testimony was also presented as to this issue, based upon Childress’s testimony the trial court could have determined that Morris Concrete was aware of the particular purpose for which the concrete was to be used and that Chil-dress had relied on its skill to provide concrete that met-the 3,000 PSI specification.

III. Negligence

Morris Concrete also argues that Warrick provided no evidence to support an allegation of negligence. As mentioned in note 1, supra, Warrick’s complaint did not clearly contain an allegation of negligence. However, at trial, when the trial court informed the parties’ counsel that it believed the complaint did contain an allegation of negligence within Warrick’s breach-of-warranty claim, counsel for Morris Concrete stated, in pertinent part:

“Your Honor, as the corporate attorney for Morris [Concrete], we filed a cross-claim back against Mr. Childress, and although I’m not going to argue that vehemently at this time, I do want to address what you were asking a minute ago concerning whether there can be more than one count in a claim, Your Honor. I think, generally speaking, we operate as lawyers on notice of pleadings, we look at what the pleading says.
“Also, I think, Your Honor, throughout this trial—first of all, I think Your Honor has the ability to conform to the evidence that’s been put before you. I think at best what has been put before you is potentially negligence on the part of Morris Concrete, if at all, Your Hon- or—I can’t sit here and tell you that my client committed an act as their attorney, but I will say if the testimony put before you is believed, then the testimony was that there were certain problems at the concrete plant that should have come to light and they should have been taken care of and they didn’t, is that negligence? That’s up to you to make that decision, Your Honor.”

Thus, Morris Concrete’s counsel conceded that the testimony presented at trial, if believed by the trial court, could support a count of negligence. Accordingly, it cannot now argue that the trial court’s finding of negligence requires reversal. See Atkins v. Lee, 603 So.2d 937, 945 (Ala.1992)(“A party may not predicate an argument for reversal on ‘invited error,’ that is, ‘error into which he has led or lulled the trial court’ ” (quoting Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971), and citing State Farm, Mut Auto. Ins. Co. v. Humphres, 293 Ala. 413, 418, 304 So.2d 573, 577 (1974))).

IV. Amount of Damages

Morris Concrete next argues that the trial court’s award of $75,000 in damages to Warrick was excessive. At the close of trial, Warrick’s counsel and the trial court engaged in the following discussion:

“[Warrick’s counsel:] We’re asking for the twenty-seven thousand and change that’s there. We’re asking for lost profits. We’ve been back and forth with lost profits whether it’s gross profits, whether it’s gross income, however Your Honor looks at it, if ... twenty-five thousand dollars was the gross profits that were made, not gross sales, in the year ‘99 and 2000, both of them are right around there together, if it’s 40 percent of that, that’s ten thousand dollars a year, and we’ve been 18 months now, giving them the benefit of the doubt. That’s fifteen thousand dollars right off the top with an approximation of 40 percent that he’s due for lost profits.
“And on top of that, he gets to walk by every day and look at a twenty-five thousand dollar project that he can store stuff in. It’s worthless. It’s sitting there right now worthless. That’s something he has to go with and it’s not his fault. It’s something that is Morris Concrete’s fault.
“THE COURT: Is that what you’re asking for is forty-seven thousand dollars?
“[Warrick’s counsel]: Yes, sir. And whatever the Court wishes to consider for mental anguish.
“THE COURT: Okay.”

Because the trial court awarded $33,000 in excess of what Warrick requested (see note 5, supra) Morris Concrete contends that that amount represents the mental-anguish damages awarded by the trial court. It argues that the trial court erred by awarding mental-anguish damages because, subject to limited exceptions not applicable to this case, they are generally not allowed in breach-of-contract actions and that they also are not allowed in negligence actions unless the plaintiff was in a “zone of danger.” It further argues that Warrick failed to present sufficient evidence to support an award for lost profits and that he failed to mitigate his damages.

A. Mental-Anguish Damages in Breach^of-Contract Actions

In Bowers v. Wal-Mart Stores, Inc., 827 So.2d 63 (Ala.2001)(hereinafter referred to as “Bowers II ”), our supreme court observed:

“An award of damages for mental anguish generally is not allowed in breach-of-contract actions in Alabama. Ruiz de Molina v. Merritt & Furman Ins. Agency, 207 F.3d 1351 (11th Cir.2000), citing Vincent v. Blue Cross-Blue Shield, Inc., 373 So.2d 1054, 1056 (Ala.1979).
“ ‘The ground on which the right to recover such damages [for mental anguish] is denied, is that they are too remote, were not within the contemplation of the parties, and that the breach of the contract is not such as will naturally cause mental anguish. “Yet where the contractual duty or obligation is so coupled with matters of mental concern or solicitude, or with the feelings of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering, it is just that damages therefor be taken into consideration and awarded.” ’
“F. Becker Asphaltum Roofing Co. v. Murphy, 224 Ala. 655, 656, 141 So. 630, 631 (1932) (citations omitted). Exceptions to the general rule on the basis noted above have been made in the areas of contracts to construct or repair, or to provide utilities to, a house where the breach impacted the habitability of the house. See Orkin Exterminating Co. v. Donavan, 519 So.2d 1330 (Ala.1988); Alabama Power Co. v. Harmon, 483 So.2d 386 (Ala.1986); B & M Homes, Inc. v. Hogan, 376 So.2d 667 (Ala.1979). Exceptions have also been made for contracts of carriage, see Nashville C.St.L. Ry. v. Campbell, 212 Ala. 27, 101 So. 615 (1924); for breach of a contract to deliver a baby, when the baby was stillborn, see Taylor v. Baptist Med. Ctr., Inc., 400 So.2d 369 (Ala.1981); and for breach of warranty in the sale of a ‘lemon,’ a newly manufactured car that frequently broke down at intersections, see Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301, 1304 (Ala.1991) (‘ “These cases have not required mental anguish to be corroborated by the presence of physical symptoms; the only requirement in such cases is the presentation of evidence of mental anguish. Thereafter, the question of damages for mental anguish becomes a question of fact for the jury to decide.” ’ (quoting B & M Homes, Inc. v. Hogan, 376 So.2d 667, 671 (Ala.1979))).
“... ‘In Alabama the general rule is that mental anguish is not a recoverable element of damages arising from breach of contract.’ B & M Homes, Inc. v. Hogan, 376 So.2d 667, 671 (Ala.1979). Speaking of exceptional cases in which Alabama law does allow mental-anguish claims resulting from a breach of contract, the United States Court of Appeals for the Eleventh Circuit has said, ‘These cases deserve special treatment because it is highly foreseeable that egregious breaches of certain contracts — involving one’s home or deceased loved one, for example — will result in significant emotional distress.’ Ruiz de Molina, 207 F.3d 1351 at 1359-60, citing Sexton v. St. Clair Fed. Sav. Bank, 653 So.2d 959, 962 (Ala.1995). Except for the identified types of emotionally intertwined cases to which the Eleventh Circuit refers, we have declined to extend emotional-distress damages to contract claims. We have, for example, rejected as an inappropriate basis for a mental-anguish claim the breach of a contract to sell a boat. See Wellcraft Marine v. Zarzour, 577 So.2d 414, 419 (Ala.1990). The Eleventh Circuit, relying on Alabama law, rejected a mental-anguish claim stemming from the breach of an insurance contract. See Ruiz de Molina, supra.

827 So.2d at 68-70.

None of the limited exceptions discussed in Boivers II exist in the present case. Accordingly, the trial court could not, as a matter of law, award mental-anguish damages to Warrick based on his breach-of-contract and breach-of-warranty claims.

B. Mental-Anguish Damages in Negligence Actions

In Wal-Mart Stores, Inc. v. Boivers, 752 So.2d 1201 (Ala.1999)(hereinafter referred to as “Boivers I ”), our supreme court observed:

“In negligence actions, Alabama follows the ‘zone-of-danger’ test, which limits recovery of mental anguish damages ‘to those plaintiffs who sustain a physical injury as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct.’ AALAR, Ltd., Inc. v. Francis, 716 So.2d 1141, 1147 (Ala.1998). Accord White Consol. Indus., Inc. v. Wilkerson, 737 So.2d 447, 449 (Ala.1999). In White Consolidated Industries, the plaintiffs’ house burned as the result of a defect in an air conditioner they had recently purchased and installed. They suffered property damage but no physical injury. They sought mental-anguish damages based on a claim made under the Alabama Extended Manufacturer’s Liability Doctrine (‘AEMLD’). This Court, even though the case was an AEMLD case and not a traditional negligence case, applied the zone-of-danger test, holding that, because ‘at the time of the fire [the plaintiff homeowners] were away from home and at their places of employment,’ they were not within the zone of danger. 737 So.2d at 449. Therefore, this Court concluded, the trial court erred in allowing the jury to award mental-anguish damages to the homeowners. Id.
“The Bowerses argue that, in a negligence case, the plaintiff, even if the plaintiff is not in a zone of danger, should be allowed to recover damages for mental anguish resulting from an incident that causes damage to property if the damage to the property is committed under circumstances of insult or contumely. See Reinhardt Motors, Inc. v. Boston, 516 So.2d 509, 511 (Ala.1986). We disagree.
“Under Alabama law, it is well established that damages for mental anguish are not recoverable in tort where the tort results in mere injury to property unless the damage to property is committed under circumstances of insult or contumely....
“The ‘insult-or-contumely’ exception does not, however, apply in cases of ‘mere negligence.’ See Louisville & N.R.R. v. Fletcher, 194 Ala. 257, 259, 69 So. 634, 635 (1915). In Fletcher, this Court explained that a plaintiff cannot recover mental-anguish damages based on damage to property that occurs as the result of negligence:
“ ‘We do not doubt that, in assessing damages for a trespass to property, mental suffering, established by the proof as the proximate and natural consequence of the trespass, and attended with circumstances of insult and contumely, is to be taken into account and compensated as a matter of right. In trespass, damages take a wide range.
“ ‘Where, as in the case before us, the wrong consists in the nondelivery of the baggage of a passenger, the result of mere negligence, the only damages that may be awarded are damages compensating the proximate resulting pecuniary loss — the loss of the baggage at the time of the nondelivery, or at any time subsequent thereto, with interest.’
194 Ala. at 259-60, 69 So. at 635. Thus, in negligence actions involving damage only to property, the ‘insult or contumely’ exception does not apply. Instead, in negligence actions, the applicable test is the zone-of-danger test. See AALAR, Ltd., Inc., 716 So.2d at 1147; White Consol. Indus., 737 So.2d at 449.”

752 So.2d at 1203-04.

Our review of the record fails to show that Warrick produced any evidence that would support a finding that he was in a zone of danger as a result of Morris Concrete’s negligence. See Bowers I. Thus, an award of mental-anguish damages as to this claim would also be erroneous.

C. Lost Profits

In Kirkland & Company of Anniston, P.C. v. A & M Food Service, Inc., 579 So.2d 1278 (Ala.1991), our supreme court observed:

“Lost profits are recoverable where it reasonably appears that they would have been made if the contract had been performed and where it appears that their loss necessarily followed the breach. Paris v. Buckner Feed Mill, Inc., 279 Ala. 148, 182 So.2d 880 (1966).... In Alabama, anticipated profits of an unestablished business may be recovered if such damages are proved with ‘reasonable certainty.’ Super Valu Stores, Inc. v. Peterson, 506 So.2d 317 (Ala.1987); Morgan v. South Central Bell Telephone Co., 466 So.2d 107 (Ala.1985). In Morgan, supra, this Court confirmed that the ‘reasonable certainty’ standard for proving profits of an unestablished business prevails in Alabama:
“ ‘The rule in Alabama concerning proof of lost profits was set forth in Paris v. Buckner Feed Mill, Inc., 279 Ala. 148, 149, 182 So.2d 880, 881 (1966), by Justice Simpson:
“ ‘ . In order that it may be a recoverable element of damages, the loss of profits must be the natural and proximate, or direct, result of the breach complained of and they must also be capable of ascertainment with reasonable, or sufficient, certainty, or there must be some basis on which a reasonable estimate of the amount of the profit can be made; absolute certainty is not called for or required."
“ ‘This general rule is applied in most states, and is referred to as the rule of “reasonable certainty.” The United States Supreme Court, in Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931), stated that this rule precludes only those damages not resulting from the wrong, allowing damages stemming from the wrong but uncertain in amount.
‘“In essence, the rule dictates that recovery will ensue despite the fact damages cannot be calculated with mathematical certainty or without difficulty where they are clearly proximately caused by the wrong.’
466 So.2d at 115-16. (Emphasis added in Morgan). See Super Valu Stores, supra. Thus, verdicts awarding lost profits will be affirmed if the claimant provides a ‘basis from which the jury could, with reasonable certainty, calculate the amount of profits which were lost as a result of [the wrongdoer’s actions].’ Morgan, supra, at 116 (emphasis in original); Super Valu Stores, supra, at 327.”

579 So.2d at 1285-86.

At trial, Warrick testified concerning his anticipated lost profits as follows:

“Q. How long was it after the slab was put down and the building up were you going to get going with the tire shop?
“A. We [were] going to get it going immediately. Like I said, we had already talked to Maco about putting in the lifts and having the tire company who I was — who I buy my tires, from when I buy new tires, about putting in a stock of new tires and rim tire changer and a computer balancer and stuff. We already had this stuff organized to be put in the building on a lease purchase plan.
“Q. You already had everything ready to go?
“A. Yes, sir.
“Q. How many days were you going to have that?
“A. Well, actually, three.
“Q. Three days for you to work on the vehicles?
“A. To change the tires.
“Q. Change tires. Do you have an estimation of how much business you would have gained as a result of the tire shop?
“[Moms Concrete’s counsel]: Your Honor, I object. This is pure speculation.
“THE COURT: You’re going to have to lay some better predicate than that. “BY [Warrick’s counsel]:
“Q. Why do you want to put a tire shop there, Jessie?
“A. Well, we’re in a high traffic area there. Highway 98 has gotten to be a busy place. And if you go down there and look at the amount of construction that’s went on there in the last, few years, Barnwell is not a small community anymore. So we have a lot of people that’s living in that area there with no tire shop within 10 to 15 miles of there.
“Q. Where is the closest tire shop towards the Eastern Shore?
“A. Fairhope Tire.
“Q. Where is the closest tire shop towards Central Baldwin?
“A. It would be Foley.
“Q. How many miles is each one apart would you estimate?
“A. I’m going to guess 30 miles between the two. We’re in the middle.
“Q. With your auto store, automotive repair store, do you do any type of tire work there?
“A. We’ve been repairing tires. We’ve got a tire machine. It’s an older machine, but we can do about 85 to 90 percent of the tires....
“Q. And you weren’t selling new tires were you?
“A. No, sir, not per se, no, sir.
“Q. Not to the general public?
“A. No.
“Q. Based on — did you have conversations with clients and customers?
“A. Yes, everybody just about that we did tire repair for, and we sold a few used tires for spare tires and everybody said why don’t you put in a tire store. If we got a flat tire, we’ve got to go all the way to Foley or Fairhope.
“Q. Based on the conversations and the information that you obtained from your business, did you perceive this to be a profitable jump for you?
“A. Yes, sir.
“Q. Do you have — based on that information, do you have some type of estimation about a percentage of what your gross profit would increase?
“[Morris Concrete’s counsel]: Again, Your Honor, objection, speculation.
“[Warrick’s counsel]: Of course, it’s speculation. The whole thing is’speculation, Judge. He’s entitled to—
“THE COURT: How much were you doing in tire work beforehand?
“[Warrick]: We weren’t doing a whole lot of tire work, you know; maybe five or six thousand dollars a year. But like I said, we were only repairing tires; we [weren’t] selling new tires. We wanted to get into the new tire business and we figured we could sell at least a couple of sets of tires a day.
“[Warrick’s counsel]: That’s what lost profits [are], ... pure speculation.
“By [Warrick’s counsel]:
“Q. What do you estimate your increased revenue would be?
“A. Well, if we could sell a couple of sets of tires a day, which is not really a lot of tires.
“Q. Give me what you believe, based on your income from ‘99/2000, how much it would increase percent-wise.
“A. We felt 40 percent at least.
“Q. That’s what you estimate?
“A. We [were] actually building a building that was bigger than the one we’ve got with a lot more equipment in it.
“Q. Okay. So your estimate is based on 40 percent; is that right?
“A. Yes, sir.”

The trial court further questioned Warrick concerning his anticipated lost profits as follows:

“Q. Let’s talk about this money aspect. If you’re going to get — let me see if I understand what you’re saying. You think your business would increase by 40 percent?
“A. Yes, sir.
“Q. But you know you haven’t given me a number to base this 40 percent on.
“A. Well—
“Q. Are you saying that your gross sales would go up 40 percent, which means from one hundred you would go to one hundred and forty thousand?
“A. I think it would be more than that because you don’t make that much profit on a tire, if you understand what I’m saying.
“Q. How much do you make on the tire?
“A. Basically about 20 percent.
“Q. 20 percent of what?
“A. Of the cost of the tire. If it’s a sixty-dollar tire, you’ve got twelve dollars, plus the mounting and balancing.
“Q. Okay. And you’re talking about twenty percent, you would clear 20 percent after you’ve done the mounting, balancing, the stem, and all that?
“A. It would be a little more than that, because we get twelve dollars to mount and balance them.
“Q. So you figured that in?
“A. Well, no. I figured the 20 percent would be off the sale of the tire.
“Q. The tire itself would be marked up 20 percent?
“A. Yes.
“Q. And then you’re going to do the mounting and balancing which is all labor?
“A. Yes, sir.
“THE COURT: Okay.”

Despite the trial court’s clarification of the amount of money that Warrick would make from each tire he sold, we conclude that the testimony presented failed to meet the “reasonable-certainty” test discussed in Kirkland & Company of Anniston, supra, because Warrick failed to provide any reasonable basis to support his anticipated sale of two sets of tires per day. The basis provided through his testimony- — that there were no tire stores in his immediate area and that from conversations with customers he estimated that if he opened a tire shop he could sell two sets of tires each day — was pure speculation and was acknowledged as such by his counsel. Accordingly, we conclude that the trial court erred by awarding Warrick damages for lost profits.

D. Failure to Mitigate

Morris Concrete also contends that Warrick failed to mitigate his damages because, it says, he was aware that there were problems with the concrete slab before he began the construction of his tire shop. The trial court was presented with conflicting testimony concerning this issue; therefore, in light of the presumption of correctness afforded a trial court’s judgment under the ore tenus standard of review, we cannot conclude that the trial court’s holding on this issue was erroneous.

V. Damages Award on Childress’s Cross-Claim

Morris Concrete next argues that the trial court erred by awarding $75,000 on Childress’s cross-claim, in which he requested that the trial court order that he be indemnified for any amount he was adjudged to be liable to Warrick. The trial court’s order did not make any provision as to the amounts that Childress or Morris Concrete, individually, were obligated to pay Warrick; the order appears to find them jointly responsible. However, in reading the trial court’s judgment in light of what was requested in Childress’s cross-claim, we conclude that Childress is responsible for payment to Warrick in the amount of the judgment, subject to this court’s reversal as to the amount of damages awarded, and Morris Concrete is responsible to indemnify Childress.

VI. Entry onto Warrick’s Property

Morris Concrete also argues that the trial court erred by not allowing it to enter onto Warrick’s property to test the concrete during the discovery phase of this litigation. Our supreme court has stated that “[a] challenge to a trial court’s ruling on a discovery matter attacks the court’s exercise of its broad discretion, and a petition for the writ of mandamus is the correct means for seeking appellate review of a discovery ruling. Ex parte Compass Bank, 686 So.2d 1135 (Ala.1996).” Ex parte Union Sec. Life Ins. Co., 723 So.2d 34, 37 (Ala.1998). However, it has also stated that an adequate remedy is generally available by appeal, unless an exceptional case is presented. See Ex parte Ocwen Fed. Bank, FSB, [Ms. 1002225, March 28, 2003] — So.2d -, - (Ala.2003)(“Generally, an appeal of a discovery order is an adequate remedy, notwithstanding the fact that that procedure may delay an appellate court’s review of a petitioner’s grievance or impose on the petitioner additional expense; our judicial system cannot afford immediate mandamus review of every discovery order.” (footnote omitted)). Accordingly, it is appropriate for us to address this issue.

“Discovery matters are within the trial court’s sound discretion, and this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion.”

Ex parte Ocwen, ■ — ■ So.2d at-(citing Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala.1991)). It was undisputed that Morris Concrete had already had the concrete tested by an engineering and testing firm of its choosing prior to the filing of this lawsuit and that, at trial, Bryan Robertson, an employee of the engineering and testing firm, testified that according to industry standards the concrete in question should have reached its maximum PSI threshold in 28 days; Robertson tested the concrete in question over 75 days after it had been poured. Moreover, the case action summary indicates that the trial court requested that Morris Concrete submit an affidavit in support of its request to enter onto Warrick’s property; the record contains no indication that a supporting affidavit was filed. Under these circumstances, we conclude that the trial court did not err by not allowing Morris Concrete to test the concrete in question for a second time.

VII. Denial of the Motion for a New Trial

Morris Concrete’s last argument is that the trial court erred by denying its motion for a new trial without conducting a hearing. In Bell v. Greer, 853 So.2d 1015, 1019 (Ala.Civ.App.2003), this court noted:

“According to Rule 59(g), Ala. R. Civ. P., postjudgment motions ‘shall not be ruled upon until the parties have had opportunity to be heard thereon.’ Rule 59(g), however, has not been interpreted to require a hearing in all cases. Our Supreme Court has established that
“ ‘the denial of a postjudgment motion without a hearing thereon is harmless error, where (1) there is either no probable merit in the grounds asserted in the motion, or (2) the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.’
“Historic Blakely Authority v. Williams, 675 So.2d 350, 352 (Ala.1995).”

Because we have resolved the issues that were presented in Morris Concrete’s motion adversely to it on all counts, except as to the amount of the trial court’s damages award, we will not hold the trial court in error for its failure to conduct a hearing on Morris Concrete’s motion for a new trial.

VIII. Conclusion

In summary, because there was no basis to support the trial court’s award of damages for mental anguish in this case and because there was not sufficient evidence to support an award of damages for lost profits, we reverse the trial court’s judgment as it relates to its award of damages and remand the cause for it to enter an order detailing the amount of damages it intended to award Warrick as compensation for the demolition and reconstruction of the concrete slab and building. Any amounts that were awarded as damages for mental anguish and lost profits were made in error and the trial court is directed to deduct that amount from its award. The trial court shall return its order to this court within 14 days from the release of this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

MURDOCK, J., concurs in the result.

On Return from Remand

CRAWLEY, Judge.

Pursuant to this court’s directive, the trial court has returned an order awarding compensatory damages to Jessie Warrick solely for the demolition and reconstruction of his building; the award does not include an award for lost profits or mental anguish. Upon review of the findings contained in that order, we conclude that the amount awarded is supported by the evidence and that the judgment is due to be affirmed.

AFFIRMED.

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

      . At trial, after the parties had presented their cases, the trial court determined that War-rick’s complaint contained an allegation of negligence, or that the evidence had at least amended the pleadings to include a negligence count.

      2. Vernon Berga, Jr., a contractor, testified and provided a written estimate that was admitted into evidence indicating that to tear down and replace the existing structure on the concrete slab would cost $27,325. He further testified that his written estimate was more that a year old and that he could no longer do the job for the price he had provided on the estimate.

      3. Warrick testified that he believed that his business's income would have increased 40 percent as a result of the opening of his tire shop; he anticipated that he would have been able to sell two sets of tires per day.

      4. Warrick's 1999 and 2000 tax returns were admitted into evidence. In 1999, he reported $24,928 as gross profit from his business; in 2000, he reported $25,038.

      5. Seemingly, the trial court incorrectly added the amounts Warrick's counsel had requested, $27,000 and $15,000 — which actually total $42,000.

      . In Childress’s brief, he acknowledges that he requested to be indemnified only by Morris Concrete.

      . See also Harrison v. Harrison, 733 So.2d 435, 438 (Ala.Civ.App.1999)(Crawley, J., concurring in part and dissenting in part)(quoting Chris Myers Pontiac-GMC, Inc. v. Lewter, 697 So.2d 478, 485 (Ala.Civ.App.l997)(Crawley, J., concurring in part and dissenting in part)):
      " 'Just because [a party] could have resorted to mandamus as a means of achieving pre-trial review of a trial court's discovery order does not mean that [she] had to resort to mandamus or be precluded from raising the issue on appeal. See, e.g., Rankin v. First Nat'l Bank of Alabama, 437 So.2d 503 (Ala.1983). If that were the case, every discovery issue that was not the subject of a pre-trial extraordinary writ would be barred from post-trial appellate review.’ ”


source: Caselaw Access Project

author: THOMPSON, Judge. MURDOCK, Judge,

license: Public Domain

text:
    T.T.W. v. V.A.
    2011174.
    Court of Civil Appeals of Alabama.
    June 13, 2003.

      Sam Clenney III, Abbeville, for appellant.
    Gregory A. DaGian, Abbeville, for appel-lee.
   THOMPSON, Judge.

On August 9, 2001, T.T.W. (“the father”) filed a dependency petition in which he alleged, among other things, that D.Q.A. (“the child”) had lived with him since the child was nine months old; that V.A. (“the mother”) had dropped the child off at the father’s workplace; and that the mother had told the father that he could keep the child. The trial court granted the father temporary custody of the child on August 9, 2001.

On August 16, 2001, the mother answered and filed a counterpetition in which she sought primary physical custody of the child. On November 2, 2001, the mother filed a motion to dismiss the father’s petition; the trial court granted the mother’s motion to dismiss on November 5, 2001, and restored physical custody of the child to the mother. On November 7, 2001, the trial court rescinded its November 5, 2001, order and ordered the father to submit to genetic testing. The child remained in the temporary custody of the father.

The trial court held a hearing on February 7, 2002, after which it reserved judgment on the issue of dependency; at that time the parties stipulated that the father was the biological father of the child. The trial court ordered home evaluations on the mother and the father. On April 29, 2002, the mother filed a motion for a final hearing. Prior to the final hearing, the mother filed a motion for summer visitation with the child, which was subsequently granted. The trial court held a final hearing on July 24, 2002, after which it determined the child to be dependent. On July 27, 2002, the trial court entered a judgment awarding custody of the child to the mother. The father filed a post-judgment motion on August 12, 2002; the trial court denied the motion on August 14, 2002. The father appealed.

Andrea Martin, a court reporter, prepared the transcript on appeal from audiotapes of the proceedings. On January 23, 2003, the trial court certified the record as complete and accurate pursuant to Rule 28(A)(1)(a), Ala. R. Juv. P. On February 7, 2003, the father filed a motion to withdraw the trial court’s certification of the record; following a hearing on March 7, 2003, the trial court denied the father’s motion on March 21, 2003.

The record indicates that at the time of the hearings in this matter the mother and the father were both 29 years old. When the mother was 18 years old, she met the father and began a one-year romantic relationship with him from which the child was born. The child was nine years old at the time of the hearing in this matter. The mother and father never married, and they eventually ended the relationship.

When the child was nine months old, the father testified, the mother left the child with him at the father’s place of employment. According to the father, he raised the child, placed the child in Penny’s Day Care beginning for a period of two years when the child was four years old, and, thereafter, enrolled the child at Abbeville Elementary School. The child struggled academically in school; the child failed the second grade during the 2001-02 school year. The child also had numerous absences from school. The following school year, the child repeated the second grade at Fort Gaines Elementary School in Georgia. The father testified that he removed the child from Abbeville Elementary because the child was having trouble in school. While in the second grade at Fort Gaines Elementary, the child initially earned failing grades in six of his subjects, but he earned average final grades.

The father testified that he works as a beautician in a beauty salon in Eufaula, Alabama; the father earns approximately $1,100 per month. The father’s immediate family resides in Fort Gaines, Georgia; at the time of the trial, the father resided in Fort Gaines with his maternal grandmother, G.J., while his mobile home was being repaired following a fire. The father testified that he generally works late hours but that G. J. takes care of the child when he is unable to take care of him. Testimony revealed that G.J. is in poor health. Before the father moved to Fort Gaines, L.M.W., the father’s paternal grandmother, helped raise the child. L.M.W. testified that she took care of the child because the father worked late hours. The father stated that the mother took the child to the doctor when necessary and that she took the child to get his required immunizations. The father testified that the mother was a “good mother.”

The father testified that he filed the dependency petition in an effort to gain custody of the child. However, the dispute before the trial court was in the nature of a custody dispute rather than a dependency action. See S.G. v. P.C., 853 So.2d 246 (Ala.Civ.App.2002)(holding that the dispute in that case was a custody dispute and not a dependency action); B.S.L. v. S.E., 826 So.2d 890 (Ala.Civ.App.2002)(finding the action to be in the nature of a custody dispute rather than a dependency action).

The father acknowledged that he did not have legal custody of the child while the child was in his care, but he testified that he had cared for the child since the child was nine months old. The father stated that he never claimed the child for tax purposes but that the mother claimed the child for a tax credit. According to the father, he received one $800 payment in 2001 from the mother after asking for a portion of her income-tax refund. The mother testified that she gave the money to the father to purchase a trampoline for the child. The mother further testified that she did not pay the father child support because the parties shared custody of the child; the mother stated that the child spent 50% of his time with her.

The father testified that he does not own a vehicle and that his driver’s license was suspended for excessive speeding violations. The father has another child from a previous relationship; the father does not have custody of that child. The father is single, in good health, and has no arrest record. Derek Sauls, a caseworker with the Department of Human Resources (“DHR”), conducted a home evaluation on the father at the trial court’s request. At the time the home evaluation was conducted, the father was living with G.J. in Fort Gaines. In his report, Sauls concluded that the father’s home was an adequate placement for the child.

The mother denied dropping the child off at the father’s place of employment when the child was nine months old. According to the mother, she left the child with the father when the child was three years old and she was pregnant with her second child. The mother testified that at the time she left the child with the father she was going into the hospital for one week and needed the father to care for the child. The mother testified that the parties reached an oral agreement whereby the child would stay with the father during the week and the mother would get the child on the weekends, holidays, and during the summer. The mother testified that the informal arrangement gave the parties equal time with the child.

The mother testified that she grew concerned about the child when the child failed the second grade at Abbeville Elementary. The mother testified that she enrolled the child in an elementary school in Eufaula after the father failed to enroll the child in school in Fort Gaines before the start of the next school year. According to the mother, the child was not in school when she picked him up in Fort Gaines even though school was in session.

The mother is employed as a certified nursing assistant and earns approximately $980 per month. In addition to her employment income, the mother receives $317 per month in food-stamp benefits. The mother works an average of 30 hours per week. The mother has medical insurance through her employer, and the child is insured under Alabama Medicaid. The mother has custody of one child from another relationship; that child was six years old at the time of the hearing. The mother testified that the children had bonded. The mother is in good health and has no prior arrest record. The mother stated that she does not smoke, drink, or use illegal drugs. According to the mother, the father smokes marijuana.

Rebecca Roberson, a caseworker with DHR, conducted a home evaluation on the mother at the trial court’s request. At the time the home evaluation was conducted, the mother lived with her grandmother. Roberson noted that the grandmother’s house was adequate, well-furnished, and in a safe neighborhood. Roberson concluded in her report that there was insufficient evidence to indicate that the mother was unfit to parent the child or that the home environment was inadequate.

According to the mother, she should have primary physical custody of the child because she would be a better caregiver to the child. The mother testified that she could offer the child a stable environment and could better supervise the child than the father. The mother further testified that she and the child regularly attend church together and that they had recently gone to Disney World on a family vacation. Lula Holt, the mother’s aunt, testified that she always accompanied the mother when the mother picked the child up for visitation. Holt testified that when the child was picked up the father was rarely with the child.

On appeal, the father argues that the trial court erred in awarding the mother primary physical custody of the child. The determination of an award of custody is within the sound discretion of the trial court. Pierce v. Helka, 634 So.2d 1031, 1032 (Ala.Civ.App.1994). A trial court’s custody determination following the presentation of ore tenus evidence is presumed correct and that judgment will not be set aside on appeal absent a finding that the trial court abused its discretion or that its determination is so unsupported by the evidence as to be plainly and palpably wrong. Pierce v. Helka, supra.

When the trial court makes an initial custody determination, neither party is entitled to a presumption in his or her favor, and the “best-interest-of-the-child” standard will generally apply. Nye v. Nye, 785 So.2d 1147 (Ala.Civ.App.2000); see also Ex parte Byars, 794 So.2d 345 (Ala.2001). In the instant case, the parties had shared joint physical custody of the child. The informal custody arrangement reached by the mother and the father did not prefer either parent with regard to physical custody.

When there is a prior custody judgment, the party seeking a change in custody must meet the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984); however, if custody has not previously been determined, then the appropriate standard to apply is “the best interest of the children.” Ex parte Couch, 521 So.2d 987, 989 (Ala.1988). See also Ex parte Johnson, 673 So.2d 410, 413 (Ala.1994) (“[I]f neither parent has previously been given primary physical custody, then the ‘best interests of 'the child’ standard ■ applies.”); Fitzhugh v. Fitzhugh, 634 So.2d 565 (Ala.Civ.App.1994) (where there was no judicial determination favoring one parent regarding physical custody, the best-interests standard applied); Mardis v. Mardis, 660 So.2d 597 (Ala.Civ.App.1995) (because there was no prior determination regarding physical custody, the best-interests standard applied).

A trial court may consider, in making an initial award of custody based on the best interests of the child, factors such as the “ ‘characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between [the] child and [the] parent.’ ” Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994) (quoting Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981)). Furthermore, the trial court considers such factors as “ ‘the children’s age and sex and each parent’s ability to provide for the children’s educational, material, moral, and social needs.’ ” M.S.H. v. C.A.H., 829 So.2d 164, 168 (Ala.Civ.App.2002) (quoting Tims v. Tims, 519 So.2d 558 (Ala.Civ.App.1987)).

It is clear that both parents love the child and want to have custody of the child. However, it is also clear that the interests of the child would best be served by his being in the primary physical custody of one parent. The mother works during the day as a certified nursing assistant; the mother averages 30 hours of work per week. The mother is responsible for the child’s health care. While in the custody of the mother, the child participates in scheduled activities such as church and goes on family vacations. Also, the child shares a close relationship to his half-brother.

The father works as a beautician and works late hours. While at work, the father places the child in the care of the child’s paternal great-grandmother and other family members. Evidence indicates that the child had suffered academically while in the custody of the father during the school year but that his grades later improved.

The mother and the father each live in their respective grandparents’ home; each have limited means of support. However, both the mother and the father are surrounded by supportive family members. Given the facts of this case, either parent would have been a viable choice as the primary physical custodian for the child. Therefore, we cannot say that the trial court erred in awarding primary physical custody of the child to the mother. See M.S.H. v. C.A.H., supra.

The father also argues on appeal that the trial court erred by denying his motion to withdraw its certification of the record as adequate. Specifically, the father contends that the record was replete with “unintelligible” portions of testimony, including statements made by the witnesses, the trial judge, and the attorneys.

At the March 7, 2003, hearing, the trial court took the testimony of Andrea Martin, the court reporter who transcribed the audiotapes made during the February 7, and July 24, 2002, hearings in this matter. Martin testified that she counted 217 points in the record during which the testimony was inaudible. Our supreme court has held that “such omissions from the record do not make the record inadequate for appellate review.” A.V. v. Morgan County Dep’t of Human Res., 623 So.2d 331, 332 (Ala.Civ.App.1993)(citing Dobbs v. State Dep’t of Pensions & Sec., 484 So.2d 1052 (Ala.1984)).

We have reviewed the record on appeal and find the record adequate for review by this court. Contrary to the father’s assertions on appeal, the record is sufficient and complete for purposes of appellate review. Therefore, the trial court did not err in certifying the record for appeal pursuant to Rule 28(A), Ala. R. Juv. P.

The judgment of the trial court awarding custody of the child to the mother and certifying the record as adequate is due to be affirmed.

AFFIRMED.

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

MURDOCK, J., concurs in the result.

MURDOCK, Judge,

concurring in the result.

The main opinion correctly states that this case involves no prior custody judgment. I write separately merely to note my understanding that, in Ex parte McLendon, 455 So.2d 863 (Ala.1984), our Supreme Court articulated a presumption that is applicable when there has been a prior judgment awarding physical custody to one parent (or a nonparent), or a voluntary relinquishment or forfeiture of the physical custody of a child, and the same has been acted upon to the manifest interest and welfare of the child. 455 So.2d at 865-66. Having said that, I concur in the result reached by the main opinion.


author: CRAWLEY, Judge.

text:
    C.J.L. v. M.W.B.
    2020182.
    Court of Civil Appeals of Alabama.
    June 13, 2003.
    Becki Truscott and Richard Ducote, New Orleans, Louisiana; and Roianne Houlton Conner, Montgomery, for appellant.
    Robert T. Meadows III and David B. Byrne, Jr., of Capell & Howard, P.C., Montgomery, for appellee.
   CRAWLEY, Judge.

C.J.L. (“the mother”) appeals from the trial court’s judgment terminating her visitation with her children, who are in the custody of M.W.B. (“the father”). This is the second time these parties have been before this court. See C.J.L. v. M.W.B., [Ms. 2010703, February 28, 2003] — So.2d-(Ala.Civ.App.2003) (“C.J.L. I.”). In C.J.L. I, this court affirmed the judgment awarding sole custody of the children to the father. Since the trial court entered its judgment in C.J.L. I in January 2002, the mother has moved to Georgia, where the father and the children reside. However, she has continued to litigate the custody judgment in Alabama by filing post-judgment motions, an appeal, and, finally, in July 2002, a Rule 60(b), Ala. R. Civ. P., motion challenging the judgment.

In October 2002, while litigation over the Rule 60(b) motion continued, the father filed what he entitled “An Emergency Motion for Protection and to Terminate the Former Wife’s Custodial Privileges.” In that motion, the father alleged that the wife had suggested to M.E.B., the oldest of the parties’ daughters, that she accuse the father of sexual abuse. The father appended to his motion a letter from Dr. Santo J. Triolo, the children’s psychologist. Dr. Triolo indicated in his letter that he was concerned about the mother and her treatment of the children; he noted that the mother had an extensive history of pathological behaviors, which he characterized as a form of emotional abuse of the children.

The mother filed a motion to dismiss the father’s motion, arguing that the trial court no longer had jurisdiction under the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (“the PKPA”), and Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act, codified at Ala.Code 1975, § 30-3B-101 et seq. (“the UCCJEA”). The trial court denied the mother’s motion, stating that it had continuing jurisdiction. The trial court then, after taking testimony, entered a judgment terminating the mother’s visitation rights and ordering her to attend psychological counseling.

The mother appeals, arguing again that the trial court lacked jurisdiction over the father’s motion. She also argues that the trial court’s order terminating her visitation rights did not comply with Rule 65, Ala. R. Civ. P., and that the evidence fails to establish emergency circumstances or irreparable harm. Because we find that resolution of the jurisdictional issue is dis-positive of this case, we will not address the mother’s other arguments.

In our modern society, divorcing and divorced parents often live in different states. Congress and most state legislatures have passed legislation aimed at determining which of multiple states should litigate and modify child-custody determinations. See 28 U.S.C. § 1738A, and Ala. Code 1975, § 30-3B-101 et seq. The PKPA states that continuing jurisdiction remains in a state that has made a child-custody determination provided that the state continues to have jurisdiction under the state’s laws and the child or at least one “contestant” resides in that state. 28 U.S.C. § 1738A(d); see also Holloway v. Holloway, 519 So.2d 531, 532 (Ala.Civ.App.1987).

Section 30-3B-201 of the UCCJEA outlines when a court of this state has jurisdiction to make an initial custody determination:

“(a) Except as otherwise provided in Section 30-3B-204, a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was . the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and “b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208; or
“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).”

Section 30-3B-202 explains when a court of this state has continuing jurisdiction of a custody case:

“(a) Except as otherwise provided in Section 30-3B-204, a court of this state which has made a child custody determination consistent with Section 30-3B-201 or Section 30-3B-203 has continuing, exclusive jurisdiction over the determination until:
“(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
“(2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.
“(b) A court of this state which has made a child custody determination and does not have continuing, exclusive jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 30-3B-201.”

The mother argues that the trial court lost its continuing exclusive jurisdiction when she, the last family member to reside in Alabama, moved to Georgia to be closer to the children. Indeed, the UCCJEA makes very clear that a court of this state no longer has continuing jurisdiction when neither the child nor his or her parents reside in this state. § 30-3B-202(a)(2); see also Guernsey v. Guernsey, 794 So.2d 1108, 1110 (Ala.Civ.App.1998). Once a court of this state loses continuing exclusive jurisdiction, it may modify its own prior custody determination only if it has jurisdiction to make an initial determination under § 30-3B-201. § 30-3B-202(b). The father does not, and cannot, argue that this state could assume jurisdiction under § 30-3B-201 to make an initial determination.

The father does argue that the trial court in its initial custody judgment reserved jurisdiction to impose supervised visitation should it become necessary. Thus, he argues, the trial court was merely enforcing or effectuating its January 2002 judgment when it terminated the mother’s visitation rights. We disagree. The trial court modified the January 2002 judgment by terminating the visitation awarded in that judgment. The trial court had lost continuing exclusive jurisdiction under § 30-3B-202, and it did not have jurisdiction under § 30-3B-201 to modify its January 2002 judgment.

In addition, the father notes that C.J.L. I was still pending in this court when the trial court entered its November 2002 judgment terminating the mother’s visitation rights, which, he appears to argue, supports a determination that the trial court’s jurisdiction continued because the case had not yet been concluded. Although the Official Comment to § 30-3B-202 states that “^jurisdiction attaches at the commencement of a proceeding” so that, if this state had jurisdiction to modify a judgment at the time the proceeding was commenced, the change of residence of all the parties to that proceeding prior to its conclusion would not divest the court of jurisdiction, the father’s argument is flawed. The father’s “emergency motion” was in effect a modification petition seeking a modification of the visitation provisions of the January 2002 judgment. At the time the modification petition was filed, neither parent and none of the children resided in this state. Therefore, the trial court, having lost continuing exclusive jurisdiction under § 30-3B-202, and not having jurisdiction under § 30-3B-201, had no jurisdiction at the time the modification proceeding was commenced.

Finally, the father argues that the mother, by continuing her postjudgment-motion practice and by litigating the Rule 60(b) motion, has somehow consented to the jurisdiction of the court. However, subject-matter jurisdiction may not be waived; a court’s lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu. See Ex parte Punturo, [Ms. 1000115, February 8, 2002]-So.2d-, - (Ala.2002). Therefore, we conclude that the mother, by her actions in litigating the propriety of the January 2002 judgment, could not have consented to subject-matter jurisdiction in contravention of the PKPA and the UCCJEA.

Accordingly, we conclude that the trial court’s judgment terminating the mother’s visitation with the children was entered without jurisdiction and is therefore void. See Ex parte Punturo, — So.2d at-. A void judgment will not support an appeal. See Carter v. Hilliard, 838 So.2d 1062, 1064 (Ala.Civ.App.2002).

APPEAL DISMISSED.

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


author: YATES, Presiding Judge..

text:
    Ex parte K.L.P. (In re K.L.P. v. S.P. and P.P.).
    2020270 and 2020271.
    Court of Civil Appeals of Alabama.
    June 13, 2003.
    James M. Sizemore, Jr., Montgomery, for petitioner.

      Walter L. Gray III and Jeremy W. Armstrong of Armstrong & Gray, P.C., Phenix City, for respondents.
   YATES, Presiding Judge..

K.L.P., the mother, petitions for a writ of mandamus directing the Russell Juvenile Court to dismiss two petitions for grandparent visitation for lack of subject-matter jurisdiction. Subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Punturo, [Ms. 1000115, February 8, 2002] — So.2d - (Ala.2002); Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000).

“ A writ of mandamus is an extraordinary remedy that requires the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ ”

Ex parte Bruner, 749 So.2d 437, 438 (Ala.1999)(quoting Ex parte McNaughton, 728 So.2d 592, 594 (Ala.1998)).

On December 5, 2002, S.P. and P.P., the paternal grandparents, petitioned the juvenile court for visitation with their three-year-old and one-year-old grandchildren, pursuant to § 30-3-4, Ala.Code 1975. The grandparents contended that the grandchildren were “dependent upon contact” with them and that lack of continued visitation would cause emotional distress to the grandchildren. The grandparents stated that the mother and father had separated in 2001 and that the father had died in April 2001. The grandparents moved for a hearing on pendente lite visitation, seeking visitation over the upcoming Christmas holidays. On December 19, 2002, the mother was served with notice of the hearing set for December 20, 2002. Following the hearing, the juvenile court entered an order granting visitation on Christmas Day. The court also granted visitation on Thursday evenings from 5:30 until 7:30 p.m. and on Saturdays beginning at 12:00 p.m. until Sunday at 10:00 a.m.

On December 24, 2002, the mother moved to stay the visitation, which was granted by this court. The mother argued in her motion that the trial court lacked jurisdiction because there had been “no allegation, evidence or finding that the children were dependent, delinquent or in need of supervision.” That same day, the mother filed a notice of appeal in each of the visitation petitions, arguing that the juvenile court lacked jurisdiction.

On January 7, 2003, this court notified the parties that the appeals would be treated as a petition for a writ of mandamus. The mother was ordered to substitute her appeals with a petition for a writ of mandamus in compliance with Rule 21, Ala. RApp. P., and the grandparents were ordered to file an answer. After receiving the mandamus and the answer to the mandamus, this court granted the petition on February 4, 2003.

On February 11, 2003, this court rescinded its February 4, 2003, order, and ordered the parties to address the issue of whether the juvenile court has jurisdiction to entertain an original petition for grandparent visitation pursuant to § 30-3-4.1. The December 24, 2002, stay of visitation remained in effect. This court also issued a separate stay of the pending final hearing on visitation.

In 1973, the Alabama Constitution was amended to create a unified judicial system consisting of “a supreme court, a court of criminal appeals, a court of civil appeals, a trial court of general jurisdiction known as the circuit court, a trial court of limited jurisdiction known as the district court, a probate court and such municipal courts as may be provided by law.” Amendment No. 328, 6.01(a)(emphasis added). The circuit court “shall exercise general jurisdiction in all cases except as may otherwise be provided by law.” Amend. No. 328, 6.04(b).

In 1975, the Legislature created the juvenile court system, .giving the circuit court and the district court “original concurrent juvenile jurisdiction sitting as the juvenile court.” § 12-15-2(a). Where there is more than one district judge, the presiding circuit judge shall designate a district or circuit court judge to hear juvenile cases. § 12-15-3; see also Ex parte Boykin, 611 So.2d 322, 325 (Ala.1992)(“[C]ircuit courts in our larger judicial circuits may have civil, criminal, juvenile, and family court or domestic relations divisions, if such divisions are lawfully established and maintained.”).

The law governing juvenile proceedings is set out in § 12-15-1 through -176. The purpose of the juvenile court is “to facilitate the care, protection and discipline of children who come within the jurisdiction of the juvenile court ... to preserve the public peace- and security.” § 12-15-1.1. The Legislature limited the jurisdiction of the juvenile courts. § 12-15-30 (jurisdiction over children) and § 12-15-31 (jurisdiction over minors and adults).

Section 12-15-30(a) gives the juvenile court exclusive original jurisdiction over children who are alleged to be “delinquent, dependent, or in need of supervision.” There is nothing in the grandparents’ complaint indicating that the mother is unfit or unwilling or unable to discharge her duties as a parent. The grandparents are simply seeking visitation with the children.

“The line of demarcation between the courts exercising general civil jurisdiction with respect to the care, custody, and control of minors and the juvenile court is well defined. These courts, in dealing with the welfare and interest of minors under a given age, are entirely independent of each other. Where the contest is between the parents, or between a parent and a third person, as to who should have the control and care of the minor, the court exercising general civil jurisdiction is the proper and exclusive tribunal to decide the issue. But where a child is neglected or delinquent, and where the parent contributes to or is responsible for such neglect or delinquency, then the state has the paramount right, in the interest of the welfare of the child, to say who shall have the care, custody, and control of the child, and the juvenile court has been made the special and exclusive tribunal for determining such issue.”

47 Am.Jur.2d Juvenile Courts § 4 (1995).

Section 12-15-30(b) provides that the juvenile court has exclusive original jurisdiction in proceedings to determine custody of a child “when the child is otherwise before the court.” The children in the present case are not before the court on any reason except the grandparents’ petition for visitation. Cf. K.R.D. v. E.D., 622 So.2d 398 (Ala.Civ.App.1993)(the juvenile court had jurisdiction to award grandparent visitation where the child was before the court on the grandparents’ dependency/custody petition and the grandparents subsequently sought visitation in the event that the court did not find the child dependent).

We find persuasive Terry v. Botts (No. E2000-01288-COA-R3-CV, February 22, 2001) (Tenn.App.Ct.2001) (not published in S.W.3d). In Terry, the Tennessee appellate court held that the juvenile court lacked subject-matter jurisdiction:

“While petitions for dependency and neglect, paternity, unruly behavior and delinquency all involve the minor person directly, a Grandparent Visitation Rights Petition is a lawsuit involving the Grandparents and the Parents of the minor children. Even though the children are the heart of the lawsuit, the parties actually involved are adults, as it is the constitutional rights of the parents potentially being affected, not those of the children. Had these children been involved in the juvenile court for matters of delinquency or dependency and neglect, it is logical to conclude that the juvenile court would maintain that jurisdiction to entertain a Grandparent Visitation Petition, but not in this instance.”

Section 12-15-30(c)(l)a. gives the juvenile court original jurisdiction in proceedings where a child is “in a situation subjecting him to physical, mental or emotional abuse or is in clear and present danger of suffering lasting or permanent damage.” The grandparents allege that “lack of continued contact and visitation between the said child and petitioners will cause emotional distress.” This is not in the nature of protecting the children from “abuse” and warranting intervention by the juvenile court. See Ex parte Sumner, 451 So.2d 308 (Ala.Civ.App.l984)(juvenile court had jurisdiction under § 12-15-30(c)(1) to determine whether an emergency situation existed threatening the safety and well-being of a child where the child told his father and social workers that his stepfather had beaten and abused him and bruises and contusions were found on the child); Roberson v. McAliley, 387 So.2d 840 (Ala.Civ.App.l980)(juvenile court -had jurisdiction over petition alleging abuse under § 12 — 15—30(c)(1), even though circuit court had previously granted custody to the grandmother). Rather, this is a domestic dispute between a parent and grandparents belonging in the general jurisdiction of the circuit court. See, e.g., R.S.C. v. J.B.C., 812 So.2d 361 (Ala.Civ.App.2001) (original petition for grandparent visitation filed in the domestic relations division of the circuit court).

The petition for a writ of mandamus is granted and the juvenile court is ordered to dismiss the grandparents’ original visitation petition for lack of jurisdiction.

WRIT GRANTED.

CRAWLEY and PITTMAN, JJ., concur.

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

      . The grandparents filed a separate petition for each child.

      . Section 30-3-4 was repealed in 1999. Section 30-3-4.1, adopted in 1999, governs grandparent visitation.

      . Although the grandparents' two petitions are entitled “Petition for Visitation and/or Dependency,” the nomenclature of the pleading is not controlling. Rather, it is the relief sought within the pleading that controls. Garris v. Garris, 643 So.2d 993 (Ala.Civ.App. 1994). Here, the grandparents are seeking visitation. Furthermore, the grandparents have not complied with the procedures for filing a dependency petition. § 12-5-50, et seq.; Rule 12, Ala. R. Juv. P.