author: MURDOCK, Judge. CRAWLEY, Judge, PITTMAN, Judge,

text:
    Janet S. Phillips WHITEHEAD v. Gary M. PHILLIPS.
    2020314.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2003.

      W. Scears Barnes, Jr., of Barnes & Rad-ney, P.C., Alexander City; Larry W. Morris of Morris, Haynes & Hornsby, Alexander City, for appellant.
    Lister H. Proctor of Proctor & Vaughn, L.L.C., Sylacauga, for appellee.
   MURDOCK, Judge.

This is a child-custody-modification case. Janet S. Phillips Whitehead, the mother, appeals from a judgment of the Coosa Circuit Court awarding custody of the parties’ three children to Gary M. Phillips, the father.

The parties were divorced in December 1997. Pursuant to the divorce judgment, the mother was awarded custody of their three children, two sons and a daughter. In March 2002, the mother filed a “Petition to Modify and [for a] Rule Nisi” alleging that there had been a change of the father’s financial circumstances and requesting that the trial court increase the father’s child-support obligation. The petition also requested that the father be held in contempt for an arrearage on his child-support obligation and that he be required to pay the arrearage, plus interest. The father filed a motion to dismiss the mother’s petition. He also filed a counterclaim against the mother, alleging that a material change in circumstances had occurred since the last custody order and that he should be awarded custody of the children.

The trial court held a hearing on the parties’ claims in September 2002. At the time of the hearing, the parties’ sons were approximately 17 years old and 14 years old, and their daughter was 12 years old. After receiving documentary evidence and ore tenus testimony from the mother and the father, the trial court entered a judgment denying the mother’s “petitions for modification of child support and [for] a rule nisi” and awarding the father custody of the children. The trial court awarded the mother visitation. As to the custody award, the trial court made the following findings:

“The Court finds overwhelming evidence that since the parties’ divorce on December 3, 1997, the father has exhibited extraordinary love and fatherly support for his children while living 600 miles from them. The father has only missed one visitation weekend in Alabama with his children since his divorce. The father has provided most, if not all, of the financial support for his children’s schooling, health and ordinary living expenses.
“The father has, through extraordinary work habits, achieved a standard of living that would allow his children to have separate bedrooms in his new home while at the same time being exposed to excellent educational opportunities and growth that they would not have living in Coosa County, Alabama.
“The evidence indicates the mother’s lifestyle is characterized by an indifference to the children’s educational growth, health and social well-being. In contrast to the father’s stable and successful employment, the mother has at best had a shaky work record. The example she set in her home for her children is not conducive to their health and emotional well-being. Five children were sharing two bedrooms in her mobile home. The 12 year old daughter had been sleeping in the same room with a teenage brother and two stepbrothers. This does not exhibit a stable home environment for her children. The mother smoking while in the presence of the children shows her indifference to their health. The evidence also clearly showed that the mother exhibited an indifference to the children’s ability to have normal communications with their father who tried to call them every night from 600 miles away.
“The mother being arrested and charged with shoplifting causing her to spend the weekend in jail without caring for her children is further evidence of her inability to care for her children. The evidence showed that the children learned of this incident from other school children.”

The mother filed a postjudgment motion requesting that the trial court either amend its judgment or grant her a new trial. In her postjudgment motion, the mother alleged that the evidence did not support the trial court’s modification of custody. The mother also alleged that the trial court had “failed to consider any evidence or take testimony from the children of the marriage even though the children were all of an age that required the Court to consider their testimony”; she attached to her postjudgment motion a sworn affidavit from each child and a sworn affidavit from a teacher in the Coosa County School System in which the children attend school and who is familiar with the children. The mother’s postjudgment motion was denied by operation of law. See Rule 59.1, Ala. R. Civ. P. The mother appeals.

On appeal, the mother argues that the trial court’s judgment is due to be reversed because the trial court did not receive any testimony from the parties’ children. She also argues that the trial court’s findings were not supported by the evidence and that the father failed to present sufficient evidence to satisfy his burden of proof for a modification of custody under Ex parte McLendon, 455 So.2d 863 (Ala.1984).

As to the failure of the trial court to receive any testimony from the children at the September 2002 hearing, the mother did not attempt to call the children as witnesses at trial. “This Court cannot put a trial court in error for failing to consider evidence or accept arguments that, according to the record, were not presented to it.” Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala.1990).

The father has filed a motion to strike those portions of the mother’s appellate brief that refer to information contained in the affidavits from the children and the teacher filed in support of the mother’s postjudgment motion. As we have stated before, “[t]his court in this instance, as in all instances, only considers relevant matters as shown by the record,” Roussel v. Payne, 352 So.2d 1364, 1370 (Ala.Civ.App.1977). We have not considered the affidavits filed in support of the mother’s postjudgment motion in rendering our opinion in this case.

The mother next argues that the trial court’s findings were not supported by the evidence and that the father failed to present sufficient evidence to satisfy his burden of proof for a modification of custody under Ex parte McLendon, 455 So.2d 863. A judgment of a trial court based on ore tenus evidence is presumed correct. Anderson v. Lee, 621 So.2d 1305 (Ala.1993). An appellate court will not disturb the trial court’s conclusions on issues of fact unless the conclusions are clearly erroneous and against the great weight of the evidence. See Raidt v. Crane, 342 So.2d 358 (Ala.1977). The ore tenus rule recognizes that the trial court is better able than the appellate court to determine the credibility of witnesses. Based upon the trial court’s unique position to personally observe the parties and witnesses, it has the discretion of accepting or rejecting testimony and of giving appropriate weight to testimony. See James v. James, 532 So.2d 1031 (Ala.Civ.App.1988).

In Ex parte McLendon, 455 So.2d 863, our Supreme Court recognized that where there has been a voluntary forfeiture of custody or a judgment awarding custody of a child and the custodian has “ ‘acted upon’ ” his or her newfound custody “ ‘to the manifest interest and welfare of the child, the parent [seeking custody] will not be permitted to reclaim the custody of the child, unless [he or she] can show that a change of the custody will materially promote [the] child’s welfare.’ ” 455 So.2d at 865 (quoting Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1947)). The Supreme Court explained this material-promotion requirement, which is often referred to as the “McLendon standard” or the “McLendon presumption,” as

“ ‘a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child’s healthy growth into adolescence and adulthood. The doctrine requires that the party seeking modification prove to the court’s satisfaction that material changes affecting the child’s welfare since the most recent decree demonstrate that custody should be disturbed to promote the child’s best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child.’ ”

Ex parte McLendon, 455 So.2d at 865-66 (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)). It is not enough that the parent seeking custody show that he or she has reformed his or her lifestyle or improved his or her financial position; the parent seeking custody must show that a change in custody would materially promote the best interests and welfare of the child. See Ex parte McLendon, 455 So.2d at 866.

The mother testified that since the entry of the last custody order, she had stopped working. She stated that she was “under a doctor’s care” and that she had “filed for disability because she had degenerative bone disease” in her back. When asked about her employment prospects, the mother responded that “[n]o one’s going to hire me if I can’t stand or sit lengths of time” and that the inability to stand or “sit for lengths of time” were symptoms that she suffered from. However, there was no evidence that the mother’s physical limitations had detrimentally affected the care of her children.

At the time of the hearing, the mother received $900 per month as child support from the father, and, apparently, she had no other source of income, although her husband was employed. She stated that, based on her income and her husband’s income, the children qualified for and received “reduced lunches.” The father did not approve of his children receiving “reduced lunches.” However, there was no evidence that the children had not received adequate nutrition or that receiving “reduced lunches” had detrimentally affected them.

When asked what the children wanted in regard to custody, the mother testified, without objection by the father, that “[t]hey want us to have equal time together when they are out of school or vacation time.” She also testified that the children had not “gotten in any kind of trouble,” that they were “straight A” students, and that they were on the honor role. The father likewise testified that the children performed well in school and that they always had. Further, the mother stated that she traveled to all of the children’s school activities, practices, and games.

The mother testified that she, her husband, and the parties’ three children resided in a manufactured home that had three bedrooms. She also testified that her husband had two sons, who were 6 years old and 8 years old, and that they stayed with them diming the husband’s “weekly visitation.” She testified that she and her husband had a bedroom, that her daughter had a bedroom to herself, and that the boys shared a bedroom. The mother testified that her parents resided next door to her residence. There was no evidence that the children’s living arrangement with the mother had a detrimental effect on them.

The mother testified that she and her husband smoked in their home, in the presence of the children. However, she stated that none of her children suffered from allergies or had respiratory problems. The father objected to the mother’s smoking in the presence of the children.

The ' mother testified that during the year before the hearing, her telephone service had been “cut off’ for a few days on two or three occasions because she had not paid the bill. The father testified that the mother’s telephone service had been disconnected “probably” half of the time that he had tried to call the children. The father testified that the mother’s telephone-service problems had interfered with his telephone visitation with the children, but he also stated that he called the children almost daily and that he sometimes managed to reach the children at a relative’s home when the mother’s telephone service was disconnected.

The mother admitted that she had been arrested for shoplifting in 1999, but she stated that it was a false arrest and that the charges had been dismissed. She testified that when she got home from her incarceration following the arrest, the children were at school but that other children attending the children’s school had heard about her arrest over the radio and had told her children about the incident. The maternal grandparents had cared for the children while the mother was incarcerated. The mother testified that she and the father had discussed the alleged shoplifting incident and that he was present when the charge against her was dismissed. Although the alleged shoplifting incident occurred in 1999, the father apparently did not complain of it until 2002. There was no evidence that the children had been detrimentally affected by this incident.

The mother testified that the children attended Ray Baptist Church with her approximately two Sundays each month and “every Wednesday night ... if they do not have school homework.” She admitted that she did not insist that the children attend church if they did not want to attend. The mother also stated that she had no problems with the children, but that when a problem arose they discussed it “one on one.” The father also testified that the children were not “getting in any kind of trouble” and that he and the mother had been “pretty strict” with them. There was no evidence that either party used inappropriate disciplinary procedures.

The father testified that he had resided in Indianapolis, Indiana, since the entry of the divorce judgment and that his gross annual income was approximately $170,957, substantially more than he had been making when the parties divorced. He stated that he was employed as a computer programmer manager. He also stated that, in addition to paying child support, he had paid approximately $21,811 since the entry of the divorce judgment for clothes, educational supplies, activity fees, medical care, and other additional expenses for the children. In addition, the father testified that he and his wife provided court-ordered health insurance for the children. He testified that he did not believe the mother had properly spent the children’s child support, but he offered no evidence as to how the child support might have been misspent.

The father testified that in the divorce judgment he had been awarded visitation with the children every other weekend. The father stated that he had only missed one weekend visitation since the parties had been divorced, despite having to drive 600 miles each way for visitation on most occasions; sometimes the father traveled by air.

The father testified that he and his wife resided in a three-bedroom home, but that they were “in the process of trying to complete a new home” that would have six bedrooms. He stated that his wife had two children, who would each have their own bedroom. The father also testified that, until approximately six months before trial, the parties’ daughter had lived in the bedroom with “the three boys” at the mother’s manufactured home and that his oldest son had a bedroom by himself. However, he acknowledged that the mother had given the daughter a bedroom of her own because she was “getting older for one thing.” It does not appear that the mother’s husband’s two sons resided with him and the mother. Thus, the daughter apparently shared a bedroom with the younger of her two brothers until she was approximately eleven and one-half years old. There was no evidence, however, that anything improper had occurred because of the children’s living arrangement.

As to the children’s educational prospects in Indiana, the father testified:

“Q. You feel like you have a good home for these children to live in?
“A. Yes, sir, I do.
“Q. Good school—
“A. Yes, sir.
“Q. —facilities?
“A. Yes, sir.”

This court recognizes the ore tenus presumption in favor of the trial court’s decision; however, “we are not constrained to affirm a judgment of the trial court when the evidence fails to support the findings upon which that judgment is based.” Sloane v. McQuinn, 836 So.2d 908, 910 (Ala.Civ.App.2002). While it is not disputed that the father is better able to provide financially for the children and that the children would have a more comfortable living arrangement in Indiana, there was no evidence that the children’s current living arrangement had a detrimental effect on them. Further, there was not substantial evidence from which the trial court could conclude that the father would provide the children with “excellent educational opportunities and growth that they would not have living in Coosa County, Alabama.” Likewise, there was not sufficient evidence to support the trial court’s conclusion that the mother had exhibited “an indifference to the children’s educational growth, health and social well-being” or that “the example she set in her home for her children [wa]s not conducive to their health and emotional well-being.”

There is no indication in the record that the mother has failed in her parental duties toward the children. Our review of the record reveals that both parents love the children and each desires to provide them with a loving home. From the evidence, it appears that the children had resided in Alabama at least since the entry of the divorce judgment in December 1997 and that both parties’ extended families lived in Alabama and had been involved in the children’s lives.

From a careful review of the record, we must conclude that the father did not offer substantial evidence tending to show that “[t]he positive good brought about by the modification [of custody would] more than offset the inherently disruptive effect caused by uprooting the children” from their current home, family, friends, school, activities, and familiar surroundings. Given the ages of the children and the lack of evidence offered by the father, we fail to see how the trial court could have concluded that the father met his burden of proof under Ex parte McLendon. Compare Hermsmeier v. McCoy, 591 So.2d 508 (Ala.Civ.App.1991).

The trial court’s judgment awarding custody to the father is reversed, and the cause is remanded to the trial court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

CRAWLEY, J., concurs in the result, with writing, which YATES, P.J., joins.

THOMPSON J., concurs in the result, without writing.

PITTMAN, J., dissents, with writing.

CRAWLEY, Judge,

concurring in the result.

Like Judge Pittman, I disagree with language in the main opinion indicating that the McLendon standard requires a showing that the current custodial arrangement has produced a “detrimental effect” on the children. Unlike Judge Pittman, however, I agree with the main opinion that the father failed to meet his burden under Ex parte McLendon, 455 So.2d 863 (Ala.1984). In McLendon, our supreme court stated:

“In view of the evidence going to show that the father and stepmother are in all respects equipped to minister to the needs of the children in an adequate home where they are loved and cared for, we cannot believe that it would be to the best interest of the children that they be uprooted again and taken to Huntsville to the home of their mother and her present husband, although it is clear that the present husband, as well as the mother, love the children and perhaps could afford them more of the luxuries of life than their father.”

Ex parte McLendon, 455 So.2d at 865 (quoting Carter v. Harbin, 279 Ala. 237, 240, 184 So.2d 145, 148 (1966)).

YATES, P.J., concurs.

PITTMAN, Judge,

dissenting.

It was not the father’s burden to adduce, in the language of the main opinion, “evidence that the children’s current living arrangement had a detrimental effect on them.” See Ex parte McLendon, 455 So.2d 863, 866 (Ala.1984) (holding that a noncustodial parent seeking a change in custody must show that a change of custody materially promotes” a childs best interests and welfare, and rejecting proposition that the parent seeking custody has the burden of showing a change in circumstances that “adversely affect” child’s welfare). In my view, evidence of the father’s improved financial and living situation, coupled with, among other things, evidence of the mother’s living conditions and her deteriorated health is sufficient to support the trial court’s custody judgment. See Terry v. Ragland, 666 So.2d 539 (Ala.Civ.App.1995), and Skinner v. Hargett, 494 So.2d 652 (Ala.Civ.App.1986). Because our review is “limited to whether there was evidence to support the trial court’s judgment,” Ex parte Patronas, 693 So.2d 473, 475 (Ala.1997), I respectfully dissent.

      . The mother did not request a hearing in her postjudgment motion. She later filed a "Motion to Shorten Time and Request for Stay” requesting, in part, that her postjudgment motion be set for a hearing. The trial court did not hold a hearing on the mother’s motion to shorten time or on her postjudgment motion. However, the mother has not argued that the trial court erred by failing to hold a hearing on her motions.

      . Noting the affidavits attached to her post-judgment motion, the mother alleged in that motion that "[t]he children are all excellent students academically. They are all active in school activities and have demonstrated leadership and healthy school involvement.” The mother offered no explanation for why she failed to call the children as witnesses at trial and made no request that the trial court reopen the trial record for the inclusion of additional evidence.


source: Caselaw Access Project

author: MURDOCK, Judge. CRAWLEY, Judge,

license: Public Domain

text:
    Barry ARGO v. Charles W. WALSTON.
    2020496.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2003.

      F. Patrick Loftin of Loftin, Loftin & Hall, Phenix City, for appellant.
    Jack M. Ivins of Cornett & Ivins, Phenix City, for appellee.
   MURDOCK, Judge.

Barry Argo appeals from a judgment entered against him and in favor of Charles Walston in which Walston was awarded $25,000 in damages on claims relating to a defectively installed pond. We reverse and remand.

In May 2000, Argo offered to construct a one-acre lake with a dam on Walston’s property for $5,000. Walston agreed, with his only stipulations being that Argo “do a good job” and that Argo not cut down all of the trees on the north end of Walston’s property. Argo worked on the lake through June and completed it in July 2000. While he was working, Argo complained to Walston that he was losing money on the job and that he did not know how he was going to pay the bills for it; however, Argo did not ask Walston for more money to complete the project. Nonetheless, Walston testified that, in response to Argo’s complaints, he gave Argo another $2,500 “out of the kindness of my heart.” After Argo completed the project, Walston stocked the lake with fish at a cost of $295, and he placed pea gravel in the lake at a cost of $886.44.

Soon after the lake was completed, a heavy rain fell on Walston’s property and the lake overflowed its dam, washing out Walston’s neighbor’s road. Walston called Argo and complained; Argo sent workers to the site to “level off’ the dirt on the road. However, it rained again some days later and the lake overflowed its dam for a second time, again washing out the neighbor’s road. On this occasion, Argo refused to come fix the road or to repair the problems with the lake, despite requests from Walston. Argo never visited the site again.

Walston filed suit against Argo on April 24, 2001, alleging breach of contract and fraud. Specifically, Walston requested $25,000 in damages based on his allegation that Argo breached the contract by failing to construct the lake in a workmanlike manner. Walston also requested $200,000 in compensatory and punitive damages based on his allegation that Argo misrepresented that he “was skilled at the construction of lakes.”

Walston was the only witness to testify at the trial that was held on May 9, 2002. He described the continuing problems with the lake overflowing and introduced into evidence several pictures of his property and his neighbor’s property showing the damage done from the flooding. Over a hearsay objection from Argo’s counsel, Walston testified that he had been told by experts that it would cost from $10,000 to $15,000 to fix the lake. The trial court permitted the testimony, noting that Wal-ston had the engineer who gave Walston this estimate present at the trial to testify if necessary. The trial court then recommended that the parties settle the dispute and adjourned the proceedings for the parties to work out an agreement.

On September 5, 2002, the trial court issued an order rendering judgment in favor of Walston and awarding him $25,000. Argo appeals the judgment as to the amount of damages awarded.

“Where evidence is presented ore tenus, as in this instance, the trial court’s judgment is presumed correct unless it is so unsupported by the evidence that it is plainly and palpably wrong.” Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990).

Argo contends that there was not sufficient competent evidence to support the judgment of the trial court with regard to the damages awarded. Citing Fidelity & Guaranty Insurance Co. v. Sturdivant, 622 So.2d 1279 (Ala.1993), for the principle that there must be “ ‘evidence to justify a finding of the amount for which judgment was rendered,’ ” 622 So.2d at 1280 (quoting Holcombe & Bowden v. Reynolds, 200 Ala. 190, 190, 75 So. 938, 938 (1917) (reversing a damages award made by a trial court sitting without a jury)), Argo argues that there was no basis for an award of $25,000 in damages. Argo points out that Walston paid only $5,000 for the construction of the lake, and the only evidence presented concerning how much it would cost to repair the lake was Walston’s testimony that it would cost $10,000 to $15,000. Argo points out that he objected to this testimony on the basis of hearsay and on the basis that Walston was not qualified to render an opinion on the subject. Thus, Argo contends that the trial court’s judgment should be reversed because it is not supported by competent evidence.

At the trial, when Argo’s counsel objected to Walston’s testifying to how much it would cost to fix the lake, the trial court answered:

“I’m going to let him go ahead and answer. I want to go ahead and finish this up. I’m going to be quite candid with you. What I’ve seen here — and I understand you had a bad rain, but you’ve got a lake that’s not built right. Now, that’s the bottom line from the pictures and from the testimony. And I really think you ought to get together and try to settle it.
“I think Mr. Argo has assets at his disposal that he can remedy this a whole lot quicker than I can render a judgment against him and order somebody else to pay it. Now, if y’all want to take a few minutes and discuss this a little bit more, you know, that’s fine. But my background, my raising with fish ponds and that kind of stuff, you’ve got to take that drainage into consideration and apparently — a lot of times it’s easy to build a pond when everything is real dry and not realize the lay of the land.
“So I really think y’all need to get together. I’ll give you about ten minutes if y’all want to work this out.”

After Walston answered the question, Argo’s counsel again objected to the court allowing such hearsay testimony. The trial court responded:

“Well, [Walston will] have an expert come in here in a minute. But like I said, if you’ve got the equipment, you can fix it a whole lot cheaper than that, let me put it that way. But if you have to go hire somebody to do it, that’s keeping with what it costs to fix something like this if you’ve got to go hire it to be done.”

The court then took a recess for the parties to discuss whether an agreement could be reached and it did not reconvene. There is no settlement agreement in the record, but the trial court’s judgment reads, in its entirety:

“This court after hearing in this cause on the 9th of May 2002 was notified that an agreement had been reached. The defendant having failed to carry out his obligation under the agreement, it is [ojrdered that judgment is rendered in favor of Plaintiff, Charles W. Walston, and against the Defendant, Barry Argo, in the amount of $25,000, together with the cost therein.
“Done this the 5th day of September 2002.”

In answering his counsel’s question regarding what it would cost to fix the lake, Walston specifically stated: ‘Well, from what I gather from the sources that have been out there and looked at it, they say at least 10, $15,000.” In other words, Walston based his cost estimate on what others had related to him, which is hearsay as defined by Rule 801, Ala. R. Evid., and does not fit within any exception to the hearsay rule. See Rules 803 and 804, Ala. R. Evid. As the trial court’s comments ruling on Argo’s objections to this testimony indicate, Walston had an expert present at trial to testify regarding the amount it would cost to fix the lake, but the expert never testified. Instead, it seems that the trial court based the amount of the damages awarded on Walston’s hearsay testimony, which should have been excluded, and on the trial court’s personal knowledge about fishing ponds, which is also not a permissible basis for a judgment.

Walston contends that the damages award was supported by the evidence if punitive damages for the fraud claim are factored into the trial court’s judgment. However, no evidence of intentional fraud such as would justify an award of punitive damages was presented at trial. Walston merely testified to the fact that he contracted with Argo to construct the lake and that the lake was defective because it overflowed the dam when it rained. To justify an award of punitive damages, one must prove “by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff.” § 6-ll-20(a), Ala.Code 1975. As used in § 6 — 11—20(a), “fraud” means “[a]n intentional misrepresentation, deceit, or concealment of a material fact the concealing party had a duty to disclose, which was gross, oppressive, or malicious and committed with the intention on the part of the defendant of thereby depriving a person or entity of property or legal rights or otherwise causing injury.” § 6-11-20(b)(1), Ala.Code 1975. The evidence presented in this case regarding Argo’s promise that he would construct a lake for $5,000, and the subsequent result that the lake was defective, does not satisfy the requirements imposed by § 6-11-20. Thus, the amount of the trial court’s damages award cannot be justified by Wal-ston’s fraud claim.

“The plaintiff has the burden of producing sufficient evidence of his loss to allow the fact-finder to calculate the damages without operating from guesswork.” Aldridge v. Dolbeer, 567 So.2d 1267, 1270 (Ala.1990). Here, the trial court considered testimony that, had it been competent, would have helped the plaintiff satisfy his burden. In admitting that testimony, the court acknowledged the availability of an expert witness to testify concerning the same matter, but it thereafter adjourned the proceedings for the parties to work out a settlement. The judgment eventually entered by the trial court based on the record developed at the hearing must be reversed as to the amount of damages awarded because of our holding today that the trial court erred in considering the plaintiffs incompetent testimony. We therefore remand the cause for a new trial as to the issue of damages. See Aldridge v. Dolbeer, 567 So.2d 1267.

REVERSED AND REMANDED.

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

CRAWLEY, J., concurs specially.

CRAWLEY, Judge,

concurring specially.

The record makes it very clear that, when Argo’s counsel objected to Walston’s testifying about how much it would cost to fix the lake, the trial judge overruled the objection, stating that he knew the proposed testimony was hearsay but that he would allow the testimony because he understood that Walston had an expert witness waiting “to testify on that.” I believe the court’s action was analogous to admitting evidence conditionally, subject to its later being “connected up,” or made competent, by other evidence.

“The trial court has discretion to conditionally admit evidence of a fact on the pledge that additional evidence will be introduced to make the first evidence competent. Gamble, McElroy’s Alabama Evidence, (3d ed.), § 13.01; Minto v. State, 8 Ala.App. 306, 62 So. 376 (1913). If additional evidence is not introduced to make the first competent, then error results unless the trial court excludes that which was conditionally admitted. Tennessee Coal, Iron and R. Co. v. Kimball, 209 Ala. 466, 96 So. 329 (1923).”

Thomas v. State, 370 So.2d 1066, 1068 (Ala.Crim.App.1978) (emphasis in original).

. I agree with the main opinion that the trial court erred in considering Walston’s incompetent testimony because, when the trial was halted and the “additional evidence” from Walston’s expert was not introduced, error resulted from the court’s admission of Walston’s hearsay testimony. As the main opinion points out, a “plaintiff has the burden of producing sufficient evidence of his loss to allow the factfinder to calculate the damages without operating from guesswork.” 885 So.2d at 184 (citing Aldridge v. Dolbeer, 567 So.2d 1267, 1270 (Ala.1990)). Walston did not meet his burden.

When Argo failed to satisfy his obligation under the parties’ settlement agreement, Walston should have moved the court to reconvene the trial to hear evidence from his expert relating to damages. Because Walston did not do so, the trial court was left with no legal evidence of damages.

Damages are an essential element of a breach-of-contract claim. Reynolds Metals Co. v. Hill, 825 So.2d 100 (Ala.2002). When a party fails to prove actual damages in a breach-of-contract case, he may recover only nominal damages. See Cor- son v. Universal Door Systems, Inc., 596 So.2d 565, 569 (Ala.1991); James S. Kemper & Co. Southeast, Inc. v. Cox & Associates, Inc., 434 So.2d 1380, 1385 (Ala.1983). See generally 11 Williston on Contracts, § 1339A at 206, 208 (3d ed.1968). Accordingly, although it might be assumed that a judgment for nominal damages only should be rendered in favor of Walston, in Al-dridge v. Dolbeer, supra, our supreme court decided that, when the trial court awarded damages that were not supported by the evidence, the plaintiff was entitled to a new trial on the issue of damages. Because this court is bound by the holding in Aldridge v. Dolbeer, I concur.

      . No evidence was introduced, and no request was made for any damages, relating to the cost of repairing Walston’s or his neighbor’s property, with the exception of the cost of correcting the problems that existed with the lake itself.

      . Citing Garrett v. Sun Plaza Development Co., 580 So.2d 1317 (Ala.1991), and other cases, for the proposition that damages for breach of a contract should return the injured party to the position he would have been in had the contract been fully performed, but not in a better position, Argo also contends that the $25,000 award is excessive, even based on the $10,000 to $15,000 repair cost testified to by Walston. We pretermit discussion of this issue.

      . Except as provided in Rule 801(d), Ala. R. Evid., hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), Ala. R. Evid.

      . "It is well established that a court may take judicial notice of matters of common knowledge without suggestion of counsel and without proof thereof. However, a court may not take judicial notice of a fact which might be disputed by competent evidence.” Jim Walter Res., Inc. v. Hall, 576 So.2d 673, 675 (Ala.Civ.App.1991) (citation omitted).


author: MURDOCK, Judge.

text:
    The CIT GROUP/EQUIPMENT FINANCING, INC. v. George ROBERTS and Good Hope Wrecker & Service, Inc.
    2020548.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2003.

      Scott W. Ford and Donald D. Knowlton of Najjar Denaburg, P.C., Birmingham, for appellant.
    Thomas A. Smith, Jr., of Smith & Smith, LLP, Cullman, for appellees.
   MURDOCK, Judge.

The CIT Group/Equipment Financing, Inc. (“CIT”), appeals from a judgment entered against it and in favor of George Roberts and Good Hope Wrecker & Service, Inc. (“Good Hope”), by the Cullman Circuit Court for unpaid storage fees concerning certain vehicles. We reverse and remand.

This case was submitted to the circuit court on stipulated facts together with briefs and affidavits submitted by the parties. Thus, unless otherwise noted, the following facts have been stipulated by the parties.

B.R. Armstrong, Inc. (“the debtor”), a company operated by its namesake, became indebted to CIT pursuant to three conditional sales agreements providing security interests in several pieces of equipment. Pursuant to a conditional sales agreement dated October 15, 1997, the debtor granted Liberty Truck Sales, Inc. (“Liberty”), a first priority security interest in a freightliner tractor (“the tractor”). Liberty subsequently assigned its rights and interest in the October 15, 1997, conditional sales agreement to Newcourt Financial USA, Inc. (“Newcourt”). Newcourt perfected its security interest in the tractor by applying for and obtaining a certificate of title to it from the State of Alabama.

Pursuant to a conditional sales agreement dated October 16, 1997, the debtor granted Freightliner Trucks of Dothan, Inc. (“Freightliner Trucks”), a first priority security interest in two 1995 Hyundai dry van trailers (“Trailer 904” and “Trailer 906”). Freightliner Trucks assigned its rights and interest to the October 16,1997, conditional sales agreement to Newcourt. Newcourt perfected its security interest in Trailer 904 and Trailer 906 by applying for and receiving certificates of title to them from the State of Alabama.

Pursuant to a' conditional sales agreement dated November 7, 1997, the debtor granted Freightliner Trucks a first priority security interest in three more Hyundai dry van trailers (“Trailer 903,” “Trailer 905,” and “Trailer 907”) (the tractor, Trailer 903, Trailer 904, Trailer 905, Trailer 906, and Trailer 907 are hereinafter collectively referred to as “the equipment”). Freightliner Trucks assigned its rights and interest to the November 7, 1997, conditional sales agreement to Newcourt. Newcourt perfected its security interest in Trailer 903, Trailer 905, and Trailer 907 by applying for and receiving certificates of title to them from the State of Alabama.

Newcourt perfected its security interests in the equipment before the debtor placed the equipment with Good Hope to be stored. Newcourt’s address on all the certificates of title for the equipment was 1979 Lakeside 450, Tucker, Georgia. CIT is the successor in interest to Newcourt; Newcourt’s office in Tucker, Georgia, was closed after CIT took control of Newcourt.

On or about February 11, 2000, the debtor filed a petition for bankruptcy under Chapter 11, Title 11 of the United States Code, 11 U.S.C. § 101 et seq. (“the Bankruptcy Code”), in the United States Bankruptcy Court for the Northern District of Alabama, Southern Division (“the Bankruptcy Court”). Good Hope was not a party to the debtor’s bankruptcy and was not listed as a creditor in the petition. After commencement of the debtor’s bankruptcy case, the debtor remained in possession of the equipment and continued to operate its business pursuant to applicable provisions of the Bankruptcy Code. Pursuant to 11 U.S.C. § 541, the filing of the debtor’s bankruptcy petition created a bankruptcy estate comprised of all legal or equitable interests in the debtor’s property, and under 11 U.S.C. § 362(a), the filing of the bankruptcy petition operated as a stay against “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.” The stay prohibited CIT from repossessing the equipment.

In August 2000, the debtor placed the equipment along with several other pieces of property in a storage yard owned and operated by Good Hope. Good Hope is owned and operated by George Roberts. Roberts and Good Hope claim in their brief to this court that the debtor placed the equipment and other property in storage because it was closing down its business; however, that alleged fact was not stipulated to and there is no evidence that CIT knew that the debtor was closing down its business at that time because it had continued to operate even after it filed for bankruptcy. George Roberts agreed that he would not charge storage fees for the equipment and other property until after September 1, 2000. Thereafter, he expected to be paid storage fees for the equipment and other property that remained at the storage facility. The debtor intended for the respective finance companies holding liens on the equipment and other property stored with Good Hope to remove their property from Good Hope’s premises. However, CIT was not notified in August 2000 that the equipment was placed on the business premises of Good Hope.

On or about December 4, 2000, the debt- or’s Chapter 11 bankruptcy proceeding was converted to a Chapter 7 proceeding under the Bankruptcy Code. During the fall of 2000, B.R. Armstrong was in bankruptcy court on more than one occasion; on those occasions, he informed all parties present where he had stored the equipment and other property of the debtor.

On January 11, 2001, after conversion of the bankruptcy proceeding, attorneys for the debtor and CIT negotiated an agreement pertaining to a termination of the stay and a surrender of the equipment. The bankruptcy judge entered an order based on that agreement in the bankruptcy proceeding on January 16, 2001. Following the lifting of the stay, CIT discovered that the equipment was located on Good Hope’s premises. CIT then demanded that Good Hope surrender the equipment. Good Hope failed or refused to surrender the equipment, citing a debt due for the towing of the equipment to and the storage of the equipment at Good Hope’s storage facility.

In April 2001, Good Hope obtained a certificate of title from the State of Alabama to the tractor. The Alabama Department of Revenue sent a letter to Newcourt’s Georgia address advising it of the change in title, but, as was noted above, Newcourt’s Georgia office was closed when CIT assumed control of Newcourt. Roberts and Good Hope allege in their brief to this court that CIT did not provide a forwarding address in place of Newcourt’s Georgia office address, but this alleged fact was not stipulated to and the record contains no evidence concerning it.

The parties agree that Roberts and Good Hope do not have a statutory or common-law lien for unpaid storage charges under Alabama law. They also agree that the debtor “told unidentified persons at some point in time during the pendency of his bankruptcy cases where certain collateral was located” but that “[tjhere is no evidence that CIT was told the location of the collateral.” B.R. Armstrong admitted that his first conversation with CIT concerning the location of the equipment occurred in May 2001, and CIT and Roberts did not have any conversations before May 2001 concerning the equipment. The parties also agree that CIT never explicitly agreed to pay Roberts and Good Hope any storage charges.

On May 31, 2001, CIT filed a complaint against George Roberts and Good Hope in the Cullman Circuit Court; on the same date, CIT filed a motion for writ of seizure concerning the equipment. Roberts and Good Hope answered and filed a counterclaim against CIT for recovery of the storage charges. On September 10, 2001, CIT and Roberts and Good Hope entered into an agreed order for a writ of seizure that required Roberts and Good Hope to surrender the equipment to CIT. Roberts and Good Hope reserved the right to pursue the claim for storage charges.

Roberts and Good Hope claimed storage fees for 334 days on the equipment. The rate for the tractor was $20.00 per day, and the rate for the five trailers was $15.00 per day; the total claim for the storage fees was $31,730. Affidavits were submitted from George Roberts, William Chaffin,' and Donald Ponder on the reasonableness of the rates. Each is in the wrecker business and stores vehicles for the public; Chaffin and Ponder charge the same rates that Roberts and Good Hope claimed as the charges for storage of the tractor and the trailers in this case. CIT submitted an affidavit from Rosemarie Chambless, a CIT vice president in charge of sales and remarketing of repossessed equipment in Alabama, who stated that a reasonable rate would be $15.00 per day for the tractor and $10.00 per day for trailers.

After the trial court denied a motion for a summary judgment filed by CIT, the parties agreed to submit the case on the stipulated facts provided above, the affidavits concerning the reasonableness of the alleged storage fees, and the parties’ trial briefs. On February 4, 2003, the trial court entered a judgment in favor of Roberts and Good Hope. In its judgment, the trial court highlighted the fact that George Roberts “expected to be paid storage fees after September 1, 2000, for units left and stored at his location.” It concluded that the storage fees claimed by Roberts and Good Hope were “reasonable” and that “the knowledge of B.R. Armstrong as to the location of the five trailers and one tractor at [Good Hope’s] shop is imputed to CIT.” Upon so concluding, the trial court awarded Roberts and Good Hope $28,230.20 in storage fees for 272 days, covering the period from September 1, 2000, to May 31, 2001, and including interest from May 31, 2001, at the statutory rate of 6 percent. CIT appeals.

“[W]hen a trial court sits in judgment on facts that are undisputed, an appellate court will determine whether the trial court misapplied the law to those undisputed facts. Furthermore, where the trial court sits without a jury and hears evidence in the form of stipulations, briefs, and writings of the parties, then an appellate court will sit in judgment on the evidence.”

Craig Constr. Co. v. Hendrix, 568 So.2d 752, 756 (Ala.1990) (citations omitted). Thus, no presumption of correctness is afforded to the trial court’s judgment.

CIT first contends that the trial court erred in finding CIT liable for the storage fees because, it argues, no express or implied contract existed between the parties and CIT had no knowledge of the location of the equipment until May 2001. Roberts and Good Hope concede that there was no express contract between the parties, but they contend that the trial court’s ruling was justified on the theory of quantum meruit to prevent the unjust enrichment of CIT.

“ ‘Both of these theories for equitable relief [work and labor done and quantum meruit] are methods of avoiding unjust enrichment, and both require the existence of a contract, either express or implied. See United States ex rel. Eastern Gulf, Inc. v. Metzger Towing, Inc., 910 F.2d 775 (11th Cir.1990); and G.S. Gothard & Son Contractors, Inc. v. Mansel, 611 So.2d 1101 (Ala.Civ.App.1992).
“ ‘ “There are two kinds of implied contracts — those implied in fact and those implied in law. Contracts implied in law are more properly described as quasi or constructive contracts where the law fictitiously supplies the promise [to pay for the labor or services of another] to prevent a manifest injustice or unjust enrichment.”
‘Green v. Hospital Bldg. Auth. of the City of Bessemer, 294 Ala. 467, 470, 318 So.2d 701, 704 (1975). “The rule is that if one knowingly accepts services rendered by another, and the benefit and result thereof, the law implies a promise on the part of the one who so accepts with knowledge, to pay the reasonable value of such services rendered.” Richards v. Williams, 231 Ala. 450, 453, 165 So. 820, 823 (1936). In order to succeed on a claim of unjust enrichment, the plaintiff must show that he had a reasonable expectation of compensation for his services. Utah Foam Prods., Inc. v. Polytec, Inc., 584 So.2d 1345, 1350 (Ala.1991).’ ”

Associates Commercial Corp. v. Roberts, 844 So.2d 1256, 1261 (Ala.Civ.App.2002) (quoting Phillips v. Fuller, 814 So.2d 885, 888 (Ala.Civ.App.2001)).

Because no express contract existed between CIT and Roberts and Good Hope and because the stipulated facts reveal no evidence of an implied contract in fact between the parties, in order to rule in favor of Roberts and Good Hope the trial court had to find that an implied contract in law existed between CIT and Roberts and Good Hope by virtue of Roberts and Good Hope’s providing storage for the equipment in which CIT had a first priority security interest. See Green v. Hospital Bldg. Auth. of Bessemer, 294 Ala. 467, 470, 318 So.2d 701, 704 (1975). In other words, the trial court had to rule that Roberts and Good Hope rendered a service for which Roberts and Good Hope had a reasonable expectation of being compensated for by CIT. See Utah Foam Products, Inc. v. Polytec, Inc., 584 So.2d 1345, 1350 (Ala.1991); Richards v. Williams, 231 Ala. 450, 453, 165 So. 820, 823 (1936). Therefore, the trial court apparently reasoned, the law must imply that CIT promised to pay a reasonable value for the service rendered, i.e., the storage of the equipment.

However, in order to reach this result it must be concluded that CIT knowingly accepted the service provided by Roberts and Good Hope. The rule quoted in Associates Commercial Corporation, supra, from Richards v. Williams — that “if one knowingly accepts services rendered by another, and the benefit and result thereof, the law implies a promise on the part of the.one who so accepts with knowledge, to pay the reasonable value ,of such services rendered,” 231 Ala. at 453, 165 So. at 823 (emphasis added) — has been reiterated on numerous occasions in Alabama cases. See, e.g., Hendrix, Mohr & Yardley, Inc. v. City of Daphne, 359 So.2d 792, 795-96 (Ala.1978); Nix v. Purnell, 267 Ala. 430, 432, 103 So.2d 331, 332 (1958); and Frank Crain Auctioneers, Inc. v. Delchamps, 797 So.2d 470, 474 (Ala.Civ.App.2000). Thus, it is clear that knowledge that the service is being rendered is key to a court being permitted to imply a contract in law between parties where none exists in fact.

The trial court concluded that CIT knowingly accepted the service rendered by Roberts and Good Hope through imputed knowledge: it ruled that B.R. Armstrong’s knowledge that the equipment was located at Good Hope’s facility was “imputed” to CIT. If CIT can be charged with knowing where the equipment was located from September 1, 2000, to May 31, 2001, then it is reasonable to imply that CIT accepted the storage services provided by Roberts and Good Hope.

However, there is no basis — either in the stipulated facts or in the law — for imputing B.R. Armstrong’s knowledge to CIT. The trial court cites no authority for its ruling, Roberts and Good Hope fail to cite any authority in support of this ruling in their brief to this court, and this court is unaware of any authority that permits an imputation of knowledge under these facts.

Knowledge of one person is generally only imputed to another where there exists a special legal relationship between the two, such as where the knowledge of an agent may be imputed to the principal, see, e.g., Williams v. Fundaburk, 237 Ala. 30, 32, 185 So. 383, 384 (1938), the knowledge of an attorney is imputed to his or her client, see, e.g., Ball v. Vogtner, 362 So.2d 894, 898 (Ala.1978), or the knowledge of one partner in a partnership is imputed to all the partners, see, e.g., 59A Am.Jur.2d Partnership § 209 (2003). Even in those relationships, though, imputation of knowledge may only be found under certain circumstances. See, e.g., Williams v. Fundaburk, 237 Ala. at 32, 185 So. at 384 (“The knowledge of an agent may be imputed to the principal as a matter of law, creating an incontestable presumption; but that arises only when the agent acquires the knowledge as an incident to the transaction of the business of the principal.”); Ball, 362 So.2d at 898 (“Our cases hold that for knowledge of the attorney to be imputed to the client, the knowledge must have come to the attorney while engaged in a service for his client after the attorney-client relationship began.”).

In describing the theory behind imputed knowledge between a principal and an agent, one bankruptcy court explained:

“The theory, known as the ‘imputed knowledge rule,’ upon which imputation of knowledge from an agent to its principal rests is that, when the agent acts within the scope of the agency relationship, there is identity of interests between principal and agent. The presumption upon which imputation rests is that the agent will perform his duty and communicate to his principal the facts that the agent acquires while acting within the scope of the agency relationship. 3 Fletcher Cyc. Corp. § 390 (rev. ed.1994).”

Waswick v. Stutsman County Bank (In re Waswick), 212 B.R. 350, 353 n. 3 (Bankr.D.N.D.1997) (emphasis added). Under the facts of this case, including the debtor’s cessation of business operations and its pending bankruptcy, we cannot conclude that an “identity of interests” existed between B.R. Armstrong or the debtor and CIT concerning whether CIT would pick up the equipment from Good Hope’s storage facility.

Even though none of the authorities cited above speak directly to the issue in this case, those authorities on imputed knowledge are sufficient to show that the trial court’s action in this case was unwarranted. B.R. Armstrong’s knowledge of the location of the equipment may not be imputed to CIT. Without such knowledge, it is apparent that CIT did not knowingly accept the storage services provided by Roberts and Good Hope, and, therefore, no contract between Roberts and Good Hope and CIT may be implied in law in this case. In the absence of a contract, there is no basis for ordering CIT to pay Roberts and Good Hope fees for storing the equipment. Accordingly, the trial court’s judgment in favor of Roberts and Good Hope is reversed, and the case is remanded to the trial court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

CRAWLEY, J., dissents, without writing.