author: JOHNSTONE, Justice.

text:
    John Mack SESSIONS v. Charles NONNENMANN and Charles Nonnenmann d/b/a Nonnenmann Enterprises.
    1000628.
    Supreme Court of Alabama.
    Aug. 16, 2002.

      Nat Bryan and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for appellant.
    Malcolm W. McSwean and Grady A. Reeves of Cervera, Ralph & Butts, Troy, for appellee.
   JOHNSTONE, Justice.

The plaintiff, a plumbing subcontractor, sued the general contractor for damages resulting from severe injuries the plaintiff suffered when he fell through an opening for a stairwell in the second floor of the building the parties were constructing. The plaintiff appeals from a summary judgment in favor of the defendant. We affirm.

The plaintiff first argues that the summary judgment is erroneous because, he says, the defendant’s motion for summary judgment failed to contain the narrative summary of undisputed material facts required by Rule 56(c)(1), Ala. R. Civ. P. The plaintiff cites Moore v. ClaimSouth, Inc., 628 So.2d 500 (1993), Hale v. Union Foundry Co., 673 So.2d 762 (Ala.Civ.App.1995), and Thompson v. Rehabworks of Florida, Inc., 727 So.2d 807 (Ala.Civ.App.1997).

The defendant’s motion for summary judgment, however, did incorporate by reference and attachment the narrative summary of undisputed facts contained in another motion for summary judgment filed by another party who is not before us in this appeal. The defendant who is before us supplemented the incorporated narrative with additional, though not extensive, facts. Rule 56(c)(1) allows attachments and does not prohibit incorporation by reference. The record before us reveals the materials incorporated in, or attached to, the defendant’s motion for summary judgment, in conjunction with the defendant’s own additional narration, constitute adequate compliance with Rule 56(c)(1).

The plaintiff next argues that the record contains substantial evidence that the defendant owed the plaintiff a duty, breached it, and thereby proximately caused his injuries. Specifically, the plaintiff argues that the defendant owed him a duty to provide him a safe workplace, that the defendant breached this duty by faihng to erect barricades around the open stairwell, and that this breach proximately caused the plaintiffs injuries.

On the one hand, the record does contain substantial evidence that the open stairwell was unguarded. On the other hand, the record contains abundant undisputed evidence that the hazard of the unguarded stairwell was open and obvious.

“In [a] premises-liability case, the elements of negligence ‘ “are the same as those in any tort litigation: duty, breach of duty, cause in fact, proximate or legal cause, and damages.” ’ ” Ex parte Harold L. Martin Distrib. Co., 769 So.2d 313, 314 (Ala.2000)(quoting E.R. Squibb & Sons, Inc. v. Cox, 477 So.2d 963, 969 (Ala.1985), quoting in turn David G. Epstein, Products Liability: Defenses Based on Plaintiffs Conduct, 1968 Utah L.Rev. 267, 270 (1968)). Breeden v. Hardy Corp., 562 So.2d 159 (Ala.1990), states the general duty a general contractor owes a subcontractor on a job site:

“ ‘As invitor, ... the general contractor, was under a duty to have the premises free from danger, or if they were dangerous, to give its invitee ... [the subcontractor], sufficient warning to enable him, through the exercise of reasonable care, to avoid the danger. This duty includes the duty to warn the invitee of danger of which the invitor knows or ought to know, and of which the invitee does not know.
“ ‘A general contractor is not responsible to a subcontractor for injury from defects or dangers which the subcontractor knows of, or ought to know of. “If the defect or danger is hidden and known to the owner, and neither known to the [subcontractor, nor such as he ought to know, it is the duty of the owner [general contractor] to warn the [subcontractor and if he does not do this, of course, he is liable for resultant injury.”
“ ‘The duty to keep an area safe for invitees is limited to hidden defects which are not known to the invitee and would not be discovered by him in the exercise of ordinary care. All ordinary risks present are assumed by the invitee, and the general contractor or owner is under no duty to alter the premises so as to [alleviate] known and obvious dangers. The general contractor is not liable to an invitee for an injury resulting from a danger that was obvious or that should have been observed in the exercise of reasonable care. The entire basis of an invitor’s liability rests upon his superior knowledge of the danger that causes the invitee’s injuries. If that superior knowledge is lacking, as when the danger is obvious, the invitor cannot be held liable.’
“... A plaintiff may not recover if the injury he receives is caused by an obvious or known defect in the premises.”

Breeden, 562 So.2d at 160. (Emphasis added; first bracketed language added; citations omitted.) See also Ex parte Kraatz, 775 So.2d 801, 803 (Ala.2000) (holding “ ‘[t]he premises owner has no duty to warn the invitee of open and obvious defects in the premises, which the invitee is aware of or should be aware of through the exercise of reasonable care’ ” (emphasis added) (quoting Woodward v. Health Care Auth. of Huntsville, 727 So.2d 814, 816 (Ala.Civ.App.1998))).

Therefore, openness and obviousness of a hazard, if established, negate the general-contractor invitor’s duty to eliminate the hazard or to warn the subcontractor invitee of the hazard; and this negation of duty, in and of itself, defeats the subcontractor’s injury claim without the operation of any affirmative defense such as contributory negligence or assumption of risk. In other words, in this context, openness and obviousness, if established, negate the duty, defeat the claim, and pretermit any issue of the effect of openness and obviousness on the affirmative defenses of contributory negligence and assumption of risk. Only if the subcontractor plaintiff can establish some special duty on the general contractor to protect the subcontractor from open and obvious hazards, as distinguished from the general contractor’s general duty as stated by Breeden, which does not require such protection, and only if the subcontractor plaintiff can likewise establish a breach of such special duty and proximately resulting damages, might the issue of the effect of the openness and obviousness on the affirmative defenses of contributory negligence and assumption of risk become critical.

This incidence of the issue of openness and obviousness in premises-liability cases differs from the incidence of the same issue in cases of claims based on the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD):

“ ‘[w]hether a danger [is] “open” and “obvious” does not go to the [legal] issue of the duty of the defendant under the AEMLD. Instead, “open” and “obvious” danger relates to the affirmative defense of assumption of the risk, the alleged “defectiveness” of the product, and the issue of causation.’ ”

Bean v. BIC Corp., 597 So.2d 1350, 1353 (Ala.1992) (emphasis added, but bracketed language added in King and Bean (quoting King v. S.R. Smith, Inc., 578 So.2d 1285, 1287 (Ala.1991), quoting Entrekin v. Atlantic Richfield Co., 519 So.2d 447, 450 n. 5 (Ala.1987)). This difference is an advantage to defendants in premises-liability cases because of restrictions our law imposes on summary judgments and judgments as a matter of law grounded on the affirmative defenses of contributory negligence and assumption of risk.

“To establish contributory negligence as a matter of law, a defendant seeking a summary judgment must show that the plaintiff put himself in danger’s way and that the plaintiff had a conscious appreciation of the danger at the moment the incident occurred. See H.R.H. Metals, Inc. v. Miller, 833 So.2d 18 (Ala.2002); see also Hicks v. Commercial Union Ins. Co., 652 So.2d 211, 219 (Ala.1994). The proof required for establishing contributory negligence as a matter of law should be distinguished from an instruction given to a jury when determining whether a plaintiff has been guilty of contributory negligence. A jury determining whether a plaintiff has been guilty of contributory negligence must decide only whether the plaintiff failed to exercise reasonable care. We protect against the inappropriate use of a summary judgment to establish contributory negligence as a matter of law by requiring the defendant on such a motion to establish by undisputed evidence a plaintiffs conscious appreciation of danger. See H.R.H. Metals, supra.”

Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839, 860-61 (Ala.2002)(emphasis added). In contrast, in order for a defendant-invitor in a premises-liability case to win a summary judgment or a judgment as a matter of law grounded on the absence of a duty on the invitor to eliminate open and obvious hazards or to warn the invitee about them, the record need not contain undisputed evidence that the plaintiff-invitee consciously appreciated the danger at the moment of the mishap. While Bree-den, supra, does recite that “[a]ll ordinary risks present are assumed by the invitee,” 562 So.2d at 160, this recitation cannot mean that the invitor’s duty before a mishap is determined by the invitee’s subjective state of mind at the moment of the mishap. This Court has expressly rejected the notion that an invitor owes a duty to eliminate open and obvious hazards or to warn the invitee about them if the invitor “should anticipate the harm despite such knowledge or obviousness.” Ex parte Gold Kist, Inc., 686 So.2d 260, 261 (Ala.1996) (emphasis added). Gold Kist apparently overrules sub silentio the contrary language in Sisk v. Heil Co., 689 So.2d 1363, 1365 (Ala.1994).

In the case now before us, the undisputed evidence that the hazard of the open stairwell was open and obvious negates any general duty in the defendant general contractor to barricade the stairwell or to warn the subcontractor plaintiff of the hazard. This negation defeats the plaintiffs claim grounded on a breach of that general duty, without any operation or analysis of the defendant’s affirmative defense of contributory negligence.

The plaintiff makes a conclusory argument that the defendant breached a special duty, as distinguished from the general duty we have already discussed. Specifically, the plaintiff argues that, pursuant to the federal Occupational Safety and Health Act (OSHA), a regulation cited by the plaintiff as 29 C.F.R. § 1926.1052(c)(12) required the defendant to barricade the open stairwell, that the defendant disobeyed this requirement, and that this noncompliance constituted a breach of duty which proximately caused the plaintiffs injuries. The plaintiff does not quote the regulation or cite the pages in the record which contain it. The plaintiff does not identify whom the regulation binds and benefits— whether employers and their employees, general contractors and their subcontractors, or other categories of obligors and obligees. The plaintiff does not explain how an OSHA requirement would translate into a duty recognized by Alabama law — whether as a matter of evidence or as a matter of law. Finally, the plaintiff does not cite any Alabama authority for this breach-of-OSHA-regulation argument. Thus, we are unable to predicate any appellate relief on this argument. See Rule 28(a)(10), Ala. R.App. P., and Spradlin v. Spradlin, 601 So.2d 76, 78-79 (Ala.1992).

The plaintiff-appellant has not demonstrated any “genuine issue as to any material fact” that prevents the defendant-ap-pellee from being “entitled to a judgment as a matter of law,” Rule 56(c)(3), Ala. R. Civ. P. Accordingly, the summary judgment in favor of the defendant-appellee must be affirmed.

AFFIRMED.

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

      . The Breeden Court reversed the summary judgment rendered in favor of the defendant-contractor invitors. The rationale of the Breeden Court was that summary judgment was inappropriate because the defendants' affirmative defenses of contributory negligence and assumption of risk presented factual issues to be resolved by a jury. This rationale, in the context of the law stated by the Bree-den Court governing the existence vel non of a duty on the defendant-contractor invitors in the first place, implies that the Breeden Court, rightly or wrongly, did not think the evidence of openness and obviousness was conclusive so as to negate the essential element of the defendants’ duty and thereby to defeat the plaintiff’s cláim and to pretermit the defendants' affirmative defenses. The Breeden dissent, 562 So.2d at 161-62, supports this analysis of the majority rationale. Had the Breeden Court deemed the particular hazard in that case to be open and obvious as a matter of law, the only logical course consistent with the law governing the defendants' duty would have been for the Court to have affirmed the summary judgment in favor of the defendants on the ground of the absence of a duty to remedy or to warn and for the Court to have pretermitted any discussion of the defendants’ affirmative defenses of contributory negligence and assumption of risk.


source: Caselaw Access Project

author: HOUSTON, Justice.

license: Public Domain

text:
    Eric T. CAMPBELL v. NAMAN’S CATERING, INC.
    1011207.
    Supreme Court of Alabama.
    Aug. 16, 2002.

      John W. Parker, Mobile, for appellant.
    Mark J. Everest of Galloway, Smith, Wettermark & Everest, L.L.P., Mobile, for appellee.
   HOUSTON, Justice.

Eric T. Campbell appeals from a summary judgment in favor of his former employer, Naman’s Catering, Inc., on Campbell’s claims of breach of contract, fraud, and conversion. We affirm in part, reverse in part, and remand.

I. Standard of Review

We review de novo a trial court’s summary judgment; therefore, we examine the evidence in the same manner as the trial court:

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

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

II. Facts

Viewed in the light most favorable to Campbell, the nonmoving party, the facts of the case are as follows. Campbell was employed by Naman’s from January 1999 to October 2000. During his employment, Campbell elected to have Naman’s withhold approximately $65 per month from his earnings to pay the premiums for life and disability insurance. His insurance coverage began in March 1999, but lapsed in February 2000, because, without Campbell’s knowledge, Naman’s had ceased paying the premiums in October 1999. Although Naman’s discontinued paying the premiums, it continued to withhold $65 per month from Campbell’s pay through May 2000.

In June 2000, Campbell discovered that Naman’s had ceased paying the premiums on his insurance. On October 25, 2000, after Campbell had retained an attorney, Naman’s reimbursed Campbell $518.06, which represented the premium payments it had withheld from his earnings but had not paid to the insurer plus interest at the rate of 10%.

In addition to the premium payments, Campbell had elected in January 2000 to have Naman’s withhold $50 per week from his earnings to be deposited into a Christmas Club savings account. While Na-man’s initially made several deposits into the account, no deposits were made to the account from the end of March 2000 to the end of October 2000. Campbell admits that, before he filed his complaint, Na-man’s had reimbursed Campbell all of the money it had withheld for his Christmas Club account; however, that reimbursement included no amount representing interest.

III. Analysis

A. Breachr-of-Contmct Claim

In order for Campbell’s breaeh-of-eontract claim to survive Naman’s summary-judgment motion, Campbell must produce substantial evidence of “(1) the existence of a valid contract binding the parties in the action, (2) his own performance under the contract, (8) the defendant’s nonperformance, and (4) damages.” Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala.1995). The arguments of the parties focus solely on the issue of damages.

As to the insurance premium payments, it is undisputed that all of the money withheld by Naman’s was returned to Campbell (plus interest at the rate of 10%), and that, while he did not have coverage for a time, Campbell filed no insurance claim during that time that could have been paid under the policies. Because Campbell has provided no evidence of damages stemming from the failure to pay the insurance premiums, summary judgment was proper.

Campbell’s harm with respect to his Christmas Club account appears to be only that he was not paid interest on the amounts that were withheld from his pay but that were not deposited to the account. Naman’s responds that the fact that Campbell was not paid interest is not substantial evidence of damages because, it argues, Campbell has not produced evidence as to the appropriate amount of interest. However, it is undisputed that “simple interest” in some amount was to accrue on the Christmas Club account. Therefore, we hold that Campbell has produced substantial evidence of damages— namely, the interest that he lost when the money withheld from his paycheck was not deposited into Campbell’s Christmas Club account — sufficient to survive Naman’s summary-judgment motion.

B. Fraud Claim

While Campbell frames his fraud claim in terms of fraudulent misrepresentation, his assertions — that Naman’s promised to use the withheld moneys to pay premiums on his insurance and to fund his Christmas Club account — -more accurately allege promissory fraud. A plaintiff asserting a claim of promissory fraud must prove two elements generally not required in a usual claim of fraud:

“The elements of fraud are (1) a false representation (2) of a material existing fact (8) reasonably relied upon by the plaintiff (4) who suffered damage as a proximate consequence of the misrepresentation. To prevail on a promissory fraud claim such as that at issue here, that is, one based upon a promise to act or not to act in the future, two additional elements must be satisfied: (5) proof that at the time of the misrepresentation, the defendant had the intention not to perform the act promised, and (6) proof that the defendant had an intent to deceive. See Russellville Production Credit Ass’n v. Frost, 484 So.2d [1084,] 1085-87 [ (Ala.1986) ]. Furthermore, ‘[t]he failure to perform a promised act is not in itself evidence of intent to deceive at the time a promise is made. If it were, the mere breach of a contract would be tantamount to fraud.’ Id. at 1086 (citation omitted).”

Padgett v. Hughes, 535 So.2d 140, 142 (Ala.1988).

Campbell’s affidavit testimony that Naman’s failed to pay the insurance premiums and to fund the Christmas Club account would not alone be substantial evidence indicating that Naman’s intended to deceive or not to perform those acts. However, Campbell also submitted affidavits of several other employees of Na-man’s; those affidavits can be read as indicating that Naman’s had made it a practice to promise its employees that it would withhold money from the employees’ paychecks and use the withheld moneys to pay insurance premiums and to fund Christmas Club accounts but would then, at some point, cease releasing the withheld moneys for those purposes. We hold that these affidavits constitute substantial evidence, i.e., “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence,” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), of the intent necessary for Campbell’s promissory-fraud claim to survive a summary-judgment motion.

C. Conversion Claim

Campbell correctly argues that the fact that Naman’s refunded to him the money it originally withheld does not negate an action for conversion. See Gunite Contracting Co. v. Mize, 341 So.2d 694, 695 (Ala.1977) (stating that “the law in Alabama is that, if evidence is presented to the jury which shows that a party has converted property in known violation of the owner’s rights and in violation of the law, punitive damages may be assessed”). However, Naman’s correctly argues that Campbell has not produced substantial evidence indicating that the money Campbell claims he is entitled to is “specific money capable of identification,” as required when one asserts a claim of conversion of money:

“Generally, an action will not lie for the conversion of money. However, if the money at issue is capable of identification, then a claim of conversion may be appropriate. In Lewis v. Fowler, 479 So.2d 725, 726 (Ala.1985), this Court discussed at length the circumstances under which an action for conversion will lie to recover a sum of money:
“ ‘ “ ‘[TJrover lies for the conversion of “earmarked” money or specific money capable of identification, e.g., money in a bag or coins or notes which have been entrusted to defendants’ care.’ ” Hunnicutt v. Higginbotham, 138 Ala. 472, at 475, 35 So. 469, at 470 (1903) (quoting from 21 Enc.Pl. & Prac., 1020, 1021). See also Moody v. Keener, 7 Port. 218 (Ala.1838), and Humana of Alabama, Inc. v. Rice, 380 So.2d 862 (Ala.Civ.App.1979), cert. denied, 380 So.2d 864 (Ala.1980).
“ ‘Money in any form is generally regarded and treated as property, and it is well settled that an action will lie for the conversion thereof, where there is an obligation to keep intact and deliver the specific money in question, and where such money can be identified. Moody v. Keener, supra (money sealed up in a particular letter); Hunnicutt v. Higginbotham, swpra ($180 in $20 gold pieces and $102 in paper money which was “wrapped up to itself’ and placed in a safe). In England, it was first held that money could not be converted so as to support an action in trover unless it was in a “bag or chest.” Holliday v. Hicks, 78 Eng.Rep. 878, 900 (1599).
“ ‘The requirement that there be “earmarked money or specific money capable of identification” before there can be a conversion has been complicated as a result of the evolution of our economic system.
“‘Now, in conversion cases, the courts are not confronted so much with a particular piece of money, i.e., a coin or a bill, but with identified or segregated sources from which money has come or types of accounts into which money has been deposited.
“ ‘Money paid by an insurance company to a hospital which had been assigned to the hospital by the plaintiff has been determined as a matter of law not to be specific property which would support an action of conversion. Humana of Alabama, Inc. v. Rice, supra. Shares in a “Ready Assets Trust Account” which must be redeemed for cash and on which checks can be written have been held to be sufficiently identifiable to support an action in conversion. Limbaugh v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 732 F.2d 859 (11th Cir.1984) (citing Alabama law).
“ ‘Section 7 of the Annotation, “Nature of property or rights other than tangible chattels which may be subject of conversion,” 44 A.L.R.2d 927 [(1955)], lists numerous cases in which attempts have been made to recover for the conversion of money.
“ ‘In this case, the Court is being asked to determine whether money which was withheld from wages of an employee by an employer in response to a garnishment filed against the employer by a creditor of the employee is specific property which will support an action in conversion. Clearly, there is no identifiable coin or bill, and nothing that has been sealed up in a particular letter, “wrapped up to itself,” or placed in a bag or chest. There is no evidence that this money was placed in a special account. It is merely money which was not paid to an employee or to the creditor of an employee, but was withheld from an employee’s wages in response to a garnishment.’ ”

Greene County Bd. of Educ. v. Bailey, 586 So.2d 893, 898-99 (Ala.1991).

Here, as in Bailey, there is no substantial evidence indicating that the money forming the basis for Campbell’s conversion claim was held in any sort of special account; instead, it was “merely money which was not paid to an employee ... but was withheld from an employee’s wages.... ” We hold that the trial court did not err in entering a summary judgment in favor of Naman’s with respect to Campbell’s conversion claim.

IV. Conclusion

Based on the above, we affirm the trial court’s summary judgment in favor of Na-man’s with respect to 1) Campbell’s breach-of-contract claim insofar as it is based on the failure to pay insurance premiums, and 2) Campbell’s conversion claim. We reverse the summary judgment and remand the case with respect to 1) Campbell’s breach-of-contract claim insofar as it is based upon Naman’s failure to include interest on the Christmas Club account in the amount it refunded to Campbell, and 2) Campbell’s promissory-fraud claim.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Campbell also alleges that when he was hired Naman's promised to pay him a bonus of $500 per month for each month during which Campbell worked 80 or more hours in a week. However, we do not address this claim because it was never properly raised before the trial court, a defect that was addressed in the trial court's summary-judgment order:
      "This Court finds that [Campbell] failed to articulate a claim for the $500.00 a month bonus allegedly promised to [Campbell] by [Naman’s], which [Campbell] argues in his Opposition to [Naman’s] Motion for Summary Judgment. This Court notes that such a claim is conspicuously absent from [Campbell’s] Complaint, [Campbell] failed to file a Motion for Leave to File an Amended Complaint and failed to file an Amended Complaint setting forth such aclaim. See Martin v. [Fidelity & Casualty Co. of Newq

        York], 421 So.2d 109 (Ala.1982) (holding that the plaintiff failed to state claims for trespass and negligence, the Court stated that 'it is for the plaintiff and not the court to articulate the claims forming [a] basis for relief ..

      . Naman's does not address those affidavits in its brief to this Court.


author: MONROE, Judge CRAWLEY, Judge,

text:
    Michael Blois PEARSON v. Lisa Carol Pearson MASTERS.
    2990425.
    Court of Civil Appeals of Alabama.
    Sept. 1, 2000.
    Rehearing Denied Oct. 27, 2000.
    Marl D. Owsley, Talladega, for appellant.
    Steven D. Adcock, Talladega, for appel-lee.
   MONROE, Judge

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App.P.; Ex parte Patranos, 693 So.2d 473 (Ala.1997); Brown v. Brown, 719 So.2d 228, 231 (Ala.Civ.App.1998); and Hall v. Hall, 391 So.2d 122 (Ala.Civ.App.1980).

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

CRAWLEY, J., concurs in part and dissents in part.

CRAWLEY, Judge,

concurring in part and dissenting in part.

I concur except as to the affirmance of the visitation provision; I dissent from that affirmance. “[T]he child’s wishes are given consideration in custody [and visitation] situations; however, they are not controlling.” Hermsmeier v. McCoy, 591 So.2d 508, 509 (Ala.Civ.App.1991); Patterson v. Patterson, 345 So.2d 1364 (Ala.Civ.App.1977).

I think there is a critical difference between the 1996 order “giving consideration to the child’s wishes,” in regard to visitation, which is permissible, and the 1998 order awarding visitation “according to the child’s wishes,” which I believe is impermissible. The wording of the 1998 order .permits the father’s visitation rights to hinge on the son’s wishes and, thus, allows the son’s preference to control.


author: THOMPSON, Judge.

text:
    Tommy H. TAYLOR, as attorney in fact for Mr. and Mrs. Claude Morris v. Lewis ROLLINS et al.
    2990988.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2001.
    R.M. Woodrow, Anniston, for appellant.
    John S. Casey and Patrick P. Casey, Heflin, fpr appellees.
   THOMPSON, Judge.

Tommy H. Taylor, as attorney in fact for Mr. and Mrs. Claude Morris, filed an action alleging that Lewis Rollins; Tommy Rollins; and David Bryant, individually and d/b/a Foothills Timber Co., wrongfully cut down and removed timber from the Morrises’ property. Taylor, on behalf of the Morrises, sought damages for alleged trespass and for the damage to the Mor-rises’ property. The defendants answered, and Lewis Rollins and Tommy Rollins (“the Rollinses”) counterclaimed, seeking a determination of the boundary between the Morrises’ property and the Rollinses’ property.

After receiving ore tenus evidence, the trial court entered a judgment in which it purported to establish a boundary line between the Morrises’ property and the Rol-linses’ property. The trial court found for the defendants on the remaining claims. Taylor filed a postjudgment motion; the trial court denied it. Taylor appealed to the Supreme Court of Alabama, which transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975. Because we must remand this case for a clarification of the judgment as it relates to the determination of the boundary line, we address only that claim.

The Rollinses’ property abuts the northern border of the Morrises’ property. The dispute concerns the location of the boundary line between those properties. All of the deeds to the two parcels of property name the “Chulafinee Creek” as forming the boundary between the properties.

At one time, Chulafinee Creek ran from west to east in an essentially straight path that, according to the testimony of some witnesses, would be along the north side of the property now in dispute. In the mid-1940s, the Morrises allowed the State to excavate gravel from the disputed area. The record indicates that during the excavation, Chulafinee Creek, because of either man-made or natural causes, changed course, so that Chulafinee Creek now flows in a west-to-southeast course along the south side of the disputed area.

The boundary-line dispute between the parties at trial was essentially a question of which of the two creek paths forms the boundary between the properties — the old creek path or the current creek path. Although several maps of the property were presented, the defendants presented the only survey of the disputed area; that survey was performed by John L. Ratley, Jr. The Ratley survey designates an “existing ditch, road bed, and drainage ditch,” the “old creek channel,” and the “Chulafi-nee Creek channel in 1996.” There was some testimony indicating that the “existing ditch” referred to on the Ratley survey was, in fact, the old course of the Chulafi-nee Creek.

The trial court referred to and incorporated the Ratley survey in its judgment. The judgment purported to establish the boundary line as follows:

“[T]he dividing fine between the property of the [Rollinses] on the North and the [Morrises] on the South extends along an old ditch line from the Janice G. Rollins property as identified on the survey by [John L. Ratley, Jr.], filed as an exhibit in this cause. The Court further finds that the line extends down the old ditch to its intersection with the ‘old run’ of the Chulafinee Creek; thence in an easterly direction along the old creek run of the Chulafinee Creek to its intersection with the east line of the said Southwest 1/4 of Section 12, Township 17, Range 9.”

On the Ratley survey, the “existing ditch, road bed, and drainage ditch” does not intersect the path designated as the “old creek channel.” Further, the path designated as the “old creek channel” does not intersect with the east line of the property, as the trial court states in its judgment. The parties, in their briefs on appeal, seem to assume that the trial court interpreted the “existing ditch, road bed, and drainage ditch” to be the “old run” of the Chulafinee Creek and that its judgment, therefore, established the boundary between the properties along that line. However, this court cannot discern the true boundary line between the properties by comparing the express terms of the trial court’s judgment with the survey referenced and incorporated in that judgment. Therefore, we remand this case to the trial court, which has 60 days to clarify that portion of its judgment regarding the location of the boundary line between the two properties.

REMANDED WITH INSTRUCTIONS.

ROBERTSON, P.J., and YATES, MONROE, and CRAWLEY, JJ., concur.


author: PER CURIAM. CRAWLEY, Judge, THOMPSON, Judge,

text:
    PLANTATION SOUTH CONDOMINIUM ASSOCIATION, INC. v. PROFILE MANAGEMENT CORPORATION, INC.
    2000678.
    Court of Civil Appeals of Alabama.
    Oct. 5, 2001.
    Rehearing Denied Dec. 21, 2001.

      Elizabeth T. Cvetetic, Huntsville, for appellant.
    Michael R. Lunsford and W. Perry Webb of Porterfield, Harper & Mills, P.A., Birmingham, for appellee.
   PER CURIAM.

This is the second appeal in this matter. The procedural history of this case is set forth in Plantation South Condominium Ass’n, Inc. v. Profile Management Corp., 788 So.2d 838 (Ala.Civ.App.2000), as follows:

“Profile Management Corporation, Inc. (‘Profile Management’), sued Plantation South Condominium Association, Inc. (‘Plantation South’), in the District Court of Madison County. In its complaint, Profile Management sought damages of $820 for services it claimed to have rendered under a contract between the parties. Plantation South answered the complaint; it also counterclaimed for damages in excess of the district court’s jurisdiction. The district court transferred the action to the Madison County Circuit Court (the ‘trial court’).
“In the trial court, Plantation South amended its counterclaim. Profile Management amended its complaint to include counts alleging breach of contract, unjust enrichment, and fraud, and a count seeking damages under the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala.Code 1975. Plantation South filed a motion to strike Profile Management’s amended complaint; the trial court did not rule on that motion.
“Profile Management then moved for a summary judgment as to all of Plantation South’s claims against it. Plantation South filed a response in opposition to the summary-judgment motion. Both parties moved to strike various eviden-tiary submissions of the other party on the summary-judgment issues.
“On March 30, 2000, the trial court entered á summary judgment for Profile Management as to all of Plantation South’s counterclaims. In that order, the trial court determined that it no longer had jurisdiction over the action and purported to remand the action to the district court. Plantation South appealed from the summary judgment to the Supreme Court of Alabama, which transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.
“The trial court did not rule on the counts contained in Profile Management’s complaint and amended complaint; those claims are still pending. ‘ “A final judgment is a terminal decision by a court of competent jurisdiction which demonstrates there has been a complete adjudication of all matters in controversy between the litigants within the cognizance of that court.” ’ Wilson v. Wilson, 736 So.2d 633, 634 (Ala.Civ.App.1999) (citation omitted). An order that adjudicates fewer than all of the parties’ claims or the rights of fewer than all of the parties is ‘subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.’ Rule 54(b), Ala. R. Civ. P. Such an order is interlocutory, unless the trial court certifies it as final pursuant to Rule 54(b). Nothing in the trial court’s summary-judgment order indicates an intent to make the order final pursuant to Rule 54(b). See Schneider Nat’l Carriers v. Tinney, 776 So.2d 753 (Ala.2000).
“This appeal was taken from an interlocutory order. This court does not have jurisdiction to consider appeals from interlocutory orders. Lunceford v. Monumental Life Ins. Co., 641 So.2d 244 (Ala.1994); Crane v. American Cast Iron Pipe Co., 682 So.2d 1389 (Ala.Civ.App.1996). An appeal ordinarily lies only from a final judgment. § 12-22-2, Ala.Code 1975; Bean v. Craig, 557 So.2d 1249 (Ala.1990). We must dismiss this appeal as being from a nonfinal order. See Owens v. Owens, 739 So.2d 511 (Ala.Civ.App.1999); Bacadam Outdoor Adven, Inc. v. Kennard, 721 So.2d 226 (Ala.Civ.App.1998).
“After the release of this court’s September 22, 2000, opinion dismissing its appeal, Plantation South filed a motion asking this court to vacate the dismissal and to allow Plantation South to supplement the record on appeal. We have elected to treat Plantation South’s motion as an application for rehearing.
“Plantation South seeks to supplement the record with an order of the trial court dated September 28, 2000. Plantation South argues that that order ‘clarifies’ the trial court’s March 30, 2000, summary-judgment order and indicates that the trial court’s March 30 order was a final judgment. The trial court’s order, entered six days after this court had released its original opinion, states:
“ ‘This cause came before the court on [Plantation South’s] Motion to Strike or Dismiss [Profile Management’s] First Amended Complaint. Upon review and [Profile Management] having consented thereto, the court is of the opinion that the motion is due to be and is hereby GRANTED. [Profile Management’s] claims as alleged in the Amended Complaint are hereby DISMISSED.’
“On September 28, 2000, the date on which the trial court entered that order, this court had not yet issued its certificate of judgment; therefore, the judgment of this court was not yet final and this court still had jurisdiction over this matter. See Rule 41, Ala. R.App. P. We conclude that the order of September 28, 2000, was void because the trial court lacked jurisdiction to enter that order. Ex parte Tiongson, 765 So.2d 643 (Ala.2000).”

Plantation South Condo. Ass’n, Inc. v. Profile Mgmt. Corp., 783 So.2d at 839-41.

On March 7, 2001, the trial court entered an order that dismissed Profile Management’s claims against Plantation South. The March 7, 2001, order disposed of the remaining claims pending between the parties, and, therefore, that order constituted a final judgment that would support an appeal. See Oliver v. Townsend, 534 So.2d 1038,1046 (Ala.1988).

The record indicates that Plantation South is a condominium association. Profile Management entered into separate annual contracts to perform administrative and management services for Plantation South for the 1994 and 1995 calendar years. In late 1995, Profile Management again contracted to manage the Plantation South condominiums, this time for a two-year term comprising the 1996 and 1997 calendar years (hereinafter the “1996-97 contract”). It is the 1996-97 contract that is at issue in this appeal.

The 1996-97 contract provides in relevant part:

“ARTICLE IX. INSURANCE AND CONTRACT SERVICES.
“[Profile Management] will provide an oversight of all contracts for goods or services which are provided to the Association. All contracts of ten thousand dollars ($10,000) or more will be let by bid and a recommendation provided to the Board. All such contracts shall be supervised by [Profile Management] and work and financial reports shall be presented to the Board before final approval.
[Profile Management] may charge a fee not to exceed eight percent (8%) of the amount of any contract of ten thousand dollars or more.”

In September 1996, Plantation South contracted with ABC Building & Roofing Company (hereinafter “ABC Roofing”) for the replacement of the roofs of the condominium buildings. Plantation South paid Profile Management 8% of the value of its contract with ABC Roofing to supervise the roofing project.

In late 1997, construction work was performed at a Plantation South condominium unit. Plantation South did not pay Profile Management a fee for supervising that construction project, and Profile Management sued Plantation South, seeking an $820 supervisory fee for supervising the project. Plantation South answered, denying liability. Plantation South also counterclaimed, alleging, among other things, that. Profile Management had breached its contract to supervise the 1996 roofing project and that Profile Management had improperly combined several small subcontracts in order to create a contract with a value in excess of $10,000, which would invoke the supervisory-fee clause of Article IX of the 1996-97 contract.

The trial court, in its March 30, 2000, order, granted Profile Management’s motion for a summary judgment on all of Plantation South’s counterclaims. Plantation South appeals only as to the summary judgment on its breach-of-contract claims. Profile Management has dismissed its claim seeking an $820 supervisory fee for the 1997 construction project; therefore, that claim is not at issue in this appeal.

A motion for a summary judgment is properly granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56; Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988). Evidence must be viewed in a light most favorable to the nonmoving party, and all reasonable doubts concerning the existence of a genuine issue of material fact must be resolved in favor of the nonmovant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). After the moving party makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmoving party to present evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). To carry that burden, the nonmoving party is required to present substantial evidence, i.e., “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

I.

Plantation South first argues that the trial court erred in entering a summary judgment on its claim that Profile Management breached its contract by allegedly combining subcontracts to “ ‘create’ a contract to invoke the supervisory-fee clause [contained in Article IX of the management contract].” In order to defeat Profile Management’s motion for a summary judgment on its breach-of-eon-tract claim, Plantation South was required to present evidence of “(1) the existence of a valid contract binding the parties in the action, (2) [its] own performance under the contract, (3) [Profile Management’s] nonperformance, and (4) damages.” Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala.1995). In its brief on appeal, Plantation South does not address the elements of a breach-of-contract claim with regard to its allegation that Profile Management improperly combined subcontracts in order to receive a supervisory fee; it merely states that if Profile Management had not combined the subcontracts, Profile Management could not have qualified for the fee for supervising those subcontracts.

Profile Management maintains that Plantation South’s claim as to this issue is in the nature of a fraud claim and that it is not a breach-of-contract claim. The elements of a fraud claim are: a false representation concerning a material existing fact, reliance on the false representation, and damage occurring as a proximate result of the reliance. Carter v. Innisfree Hotel, Inc., 661 So.2d 1174 (Ala.1995). We conclude that the substance of Plantation South’s claim as to this issue is that Profile Management falsely represented several subcontracts as being one larger contract in order that it could receive a supervisory fee. Thus, Plantation South’s claim as to this issue is in the nature of a fraud claim; it is not a claim that alleges a true breach of contract.

The record is not clear as to the exact dates of the subcontracts Profile Management is alleged to have “combined” into one larger contract, but it does indicate that those subcontracts were performed in 1997. Plantation South filed its amended complaint containing its claim related to the alleged combination of subcontracts in late November 1999. Plantation South seems to concede that a claim of fraud related to the alleged improper combining of subcontracts would be barred by the Statute of Limitations. Plantation South states in its brief on appeal that “[although what Profile Management did is certainly fraudulent, due to potential problems with that (2 year) statute of limitations, only breach of contract is claimed.”

Plantation South does not argue in its brief on appeal that a fraud claim on this issue would be timely; it argues only that this claim constitutes a breach-of-contract claim. We cannot agree; we conclude that the trial court properly entered the summary judgment as to this part of Plantation South’s “breach-of-contract” claim. We affirm as to this issue.

II.

Plantation South also argues that the trial court improperly entered a summary judgment on its claim of breach of contract related to Profile Management’s supervision of the 1996 roofing project. Plantation South claims that Profile Management breached the 1996-97 contract by failing to ensure that ABC Roofing had the requisite licenses and permits and by failing to ensure that the work on the roofs was completed in a workmanlike manner, contending that the roofs leak and are in need of repair.

Profile Management argued to the trial court, as it does to this court, that Plantation South’s claim regarding its supervision of the 1996 roofing project, and its evidence submitted in support of that claim, establish only a claim that it negligently performed its obligations under the 1996-97 contract, not that it actually breached the contract. However, our supreme court has held that a breach of contract may occur by misfeasance. Berry v. Druid City Hosp. Bd., 333 So.2d 796, 800 (Ala.1976) (also discussing a line of cases determining whether the plaintiff had stated a cause of action in tort where he or she clearly stated an action for breach of contract). Thus, we conclude that Plantation South could maintain a breach-of-contract claim related to Profile Management’s alleged misfeasance or negligence regarding the supervision of the 1996 roofing project.

In order to defeat Profile Management’s properly supported motion for a summary judgment on the breach-of-contract claim, Plantation South was required to present evidence indicating the existence of a valid contract, its own performance under the contract, Profile Management’s nonperformance, and resulting damage. See Southern Med. Health Sys., Inc., 669 So.2d 98, supra. Plantation South argued to the trial court, as it does to this court, that Profile Management’s duty to supervise the roofing contract arose from the following portion of the 1996-97 management contract:

“[Profile Management] will provide an oversight of all contracts for goods or services which are provided to the Association. All contracts of ten thousand dollars ($10,000) or more will be let by bid and a recommendation provided to the Board. All such contracts shall be supervised by [Profile Management] and work and financial reports shall be presented to the Board before final approval.”

(Emphasis added.) Article 6 of the roofing contract entered into between Plantation South and ABC Roofing provides in part:

“1. All work shall be completed in a [workmanlike] manner and in compliance with all building codes and other applicable laws.
“3. To the extent required by law all work shall be performed by individuals duly licensed and authorized to perform said work.”

It is undisputed that when ABC Roofing replaced the roofs on the Plantation South condominiums, ABC Roofing did not have the permits and licenses required by law. In support of its motion for a summary judgment, Profile Management presented the affidavit of Norman Randolph, the president of Profile Management. Randolph’s affidavit states in pertinent part:

“When new roofs were installed at [Plantation South], new roofs were installed on all condominium units which were damaged after a hail storm. A roofing contractor was hired by [Plantation South]. The roofer came to the property and installed new roofs in the damaged areas. While the roofing contractors were installing the roofs and after the job was completed, I inspected the roofs to ensure that new roofing materials were put on the roof. To my knowledge, the roofing contractor did install new roofs on the condominium units.... However, Profile Management did not guarantee or warranty any work which was performed by subcontractors [for Plantation South].”

In opposition to Profile Management’s motion for summary judgment, Plantation South presented the affidavit of Scott Gouin, a licensed roofer and contractor, who testified that he had inspected the condominiums and had found that improper materials had been installed and that some materials had been improperly installed.

We conclude that that portion of the management contract relied upon by Plantation South imposed upon Profile Management a duty to supervise the roofing contract. The roofing contract called for the work to be performed in a workmanlike manner by individuals duly licensed. It is undisputed that the work was not performed by duly licensed individuals, and Gouin’s affidavit creates a question of fact as to whether the work was performed in a workmanlike manner.

Accordingly, we conclude that Plantation South presented substantial evidence creating a question of material fact as to whether Profile Management breached its contract to supervise the 1996 roofing project. The trial court erred in entering the summary judgment in favor of Profile Management on that claim. As to that claim, the summary judgment is reversed.

The appellant’s request for an award of costs is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

YATES, P.J., concurs.

CRAWLEY, THOMPSON, PITTMAN, and MURDOCK, JJ., concur in part and dissent in part.

CRAWLEY, Judge,

concurring in part and dissenting in part.

I concur with the main opinion insofar as it reverses the summary judgment on the breach-of-contract claim regarding Profile Management’s supervision of the 1996 roofing project. I respectfully dissent, however, from the affirmance of the summary judgment on the breach-of-contract claim regarding Profile Management’s alleged combining of subcontracts in order to trigger the supervisory-fee provision of the contract.

The main opinion concludes that Plantation South’s allegation that Profile Management falsely combined several smaller subcontracts into one larger contract to trigger the eight percent fee arrangement states only a fraud claim. Although I agree that the allegation states a fraud claim, I disagree that it does not also state a breach-of-contract claim. In the present case, Profile Management agreed to charge Plantation South an eight percent fee only for contracts of $10,000 or more. It breached that agreement by demanding such a fee for contracts involving less than $10,000.

Our supreme court has recognized “that fraudulent concealment of facts after a contract has been made can support both a breach-of-contract claim and a fraud claim.” Bethel v. Thorn, 757 So.2d 1154, 1162 (Ala.1999) (emphasis added). See Deupree v. Butner, 522 So.2d 242 (Ala.1988) (affirming a judgment based on a jury verdict that builder had breached his contract to build a boat slip and had also fraudulently suppressed facts regarding the difficulty or impossibility of obtaining the necessary permit for the boat slip); Herring v. Prestwood, 414 So.2d 52 (Ala.1982) (affirming a judgment based on a jury verdict finding that the seller had breached a contract to sell land and also had fraudulently suppressed the fact that he had decided not to sell the land after he had signed an option offer).

MURDOCK, J., concurs.

THOMPSON, Judge,

concurring in part and dissenting in part.

I concur in those portions of the main opinion that affirm portions of the summary judgment in favor of Profile Management. However, I must respectfully dissent from the reversal of a portion of the summary judgment, a reversal based on an issue related to the supervision of the roofing contract. I conclude that this court’s reversal imposes on Profile Management an obligation to guarantee the adequacy and workmanship of the roofing contractor’s work. The contract between the parties does not impose such a guarantee.

PITTMAN, J., concurs.


author: PITTMAN, Judge. YATES, Presiding Judge,

text:
    CONTINENTAL GRAIN COMPANY v. Lola Dianne MAIER.
    2000332.
    Court of Civil Appeals of Alabama.
    Dec. 21, 2001.
    Rehearing Denied May 10, 2002.
    Certiorari Denied Aug. 16, 2002 Alabama Supreme Court 1011610.
    Claude E. Hundley III and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellant.
    T.J. Carnes of Carnes & Carnes, Attorneys, P.C., Albertville, for appellee.
   PITTMAN, Judge.

Continental Grain Company (hereinafter “Continental”) appeals from an order of the trial court directing it to pay for an employee’s surgery to be performed by an unauthorized physician in a workers’ compensation action.

The plaintiff, Lola Dianne Maier, obtained a judgment against her employer, Continental, in a workers’ compensation action filed in January 31, 1997. The judgment, dated February 9, 1999, found Maier to be “entitled to the full benefits of the [Workers’] Compensation laws of the State of Alabama and specifically to medical care and treatment.” On August 24, 2000, Maier filed a declaratory-judgment action, requesting a judgment that surgery, necessitated by the injury underlying her workers’ compensation action, be performed by a physician not authorized by Continental and ordering Continental to pay the costs associated with that surgery. After taking ore tenus testimony, the trial court ordered Continental to pay the costs of the surgery to be performed by the physician Maier had chosen.

Maier originally had seen a number of physicians before her workers’ compensation claim was tried. After the judgment in her favor, trial counsel for Maier wrote to counsel for Continental asking the counsel to designate a treating physician for Maier. Counsel for Continental designated Dr. Davie. Continental made an appointment for Maier to see Dr. Davie. Dr. Davie’s conclusion was that while a discec-tomy and fusion of the vertabrae in her neck constituted a “viable and reasonable approach” to treating her condition, he indicated that whether or not any benefit would be had from such a procedure was problematic. His deposition testimony provided at the hearing indicated that he had been asked to, and in fact did, conduct an evaluation of Maier. His report also indicated that he would be very reluctant to recommend the surgery on her neck and he pointedly stated that while it would not be malpractice to perform the surgery, he simply would not do it, given the radio-graphic findings and the absence of objective neurological deficit. He stated that he felt Maier would best be treated conservatively, i.e., without surgery.

Trial counsel for Continental then sent a letter to trial counsel for Maier, indicating that no medical records had concluded that surgery for Maier was “necessary.” Counsel for Maier then wrote counsel for Continental requesting that Maier be authorized to receive treatment (i.e., surgery) from Dr. White, one of the physicians Maier had seen on her own in conjunction with the earlier workers’ compensation claim. Continental declined, and counsel for Maier requested a list of four doctors from which Maier could chose another doctor. Continental tendered the names of four neurosurgeons. From that list, Maier chose Dr. Andrade. An appointment was scheduled, and Maier went to see Dr. Andrade. Dr. Andrade found, as did Dr. Davie, no objective neurological deficits. He also stated in deposition testimony that he did not think anything could be done for her “beyond just seeing her.” Dr. Andrade stated that he instructed Maier to return as needed, and that he was not sure whether she would come back to see him or one of the other five or six doctors she had consulted previously.

On review, we note that the Workers’ Compensation Act provides that “in reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” § 25-5-81(e)(2). The Alabama Supreme Court has defined “substantial evidence” as “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996), quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

Section 25-5-77, Ala.Code 1975, deals with the procedure in Alabama for choosing treating physicians in workers’ compensation cases. Section 25-5-77(a) reads, in part, as follows:

“If the employee is dissatisfied with the initial treating physician selected by the employer and if further treatment is required, the employee may so advise the employer, and the employee shall be entitled to select a second physician from a panel or list of four physicians selected by the employer. If surgery is required and if the employee is dissatisfied with the designated surgeon, he or she may so advise the employer, and the employee shall be entitled to select a second surgeon from a panel or list of four surgeons selected by the employer.”

Additionally, this court has delineated those instances in which an employee is justified in failing to obtain an employer’s authorization prior to incurring medical expenses as:

“(1) where the employer has neglected or refused to provide the necessary medical care; (2) where the employer has consented to the selection by the employee; (3) where notice of and request for alternative care would be futile; and (4) where other circumstances exist which justify the selection of alternative care by the employee.”

Kimberly-Clark Corp. v. Golden, 486 So.2d 435, 437 (Ala.Civ.App.1986); United States v. Bear Brothers, Inc., 355 So.2d 1133 (Ala.Civ.App.1978).

The trial court, in its order, stated that the “Defendant has faded through flagrant neglect or otherwise to provide Mrs. Maier with the medical services to which she has been entitled.” The trial court notes at great length in its order that Maier felt as though neither Dr. Davie nor Dr. Andrade “took her as a patient.” The trial court appears to have ruled that, once it found Maier successful in her original workers’ compensation claim, she was “entitled” to the treatment recommended by one unauthorized surgeon, even though both of the authorized surgeons supplied by Continental did not recommend that same treatment, i.e., surgery. This is not the law in Alabama.

Of the cases the trial court cited in its order, only two directly address the exception, as stated above, for an “employer [who] has neglected or refused to provide necessary medical care.” In the case of Kimberly-Clark Corp. v. Golden, 486 So.2d 435 (Ala.Civ.App.1986), we upheld the trial court’s finding that the employee was justified in seeking medical treatment without notification to, or authorization by, the employer, because the employer had neglected or had refused to provide necessary medical care. The evidence before the trial court showed that the employer had previously refused a bill for medical services to the employee, stating it would not cover the expense because Golden was no longer employed by Kimberly-Clark. In the case of Combustion Engineering, Inc. v. Walley, 541 So.2d 560 (Ala.Civ.App.1989), we held that an employee was justified in seeking medical treatment without notice to, or authorization by, the employer because the employer had refused to grant such authorization. The evidence in Wal-ley showed that the employee had on numerous occasions requested authorization for medical treatment and that the authorization was flatly refused. Clearly, both of these cases deal with the outright refusal of the employers to provide authorization at the request of the employee and are not applicable to the present case.

In this case, Continental, following § 25-5-77(a), provided Maier with two separate surgeons. The record indicates that Maier specifically requested that Continental provide her with a neurosurgeon and Continental complied with her request. The record indicates that Continental has complied with the statute, and a thorough review of the record leads us to the conclusion that there was not substantial evidence to support the trial court’s finding that Continental neglected or refused to provide necessary medical care. For the foregoing reasons, we reverse the trial court’s judgment and render a judgment in favor of Continental.

REVERSED AND JUDGMENT RENDERED.

CRAWLEY and THOMPSON, JJ„ concur.

YATES, P.J., and MURDOCK, J„ dissent.

YATES, Presiding Judge,

dissenting.

Because I believe the trial court’s judgment is supported by substantial evidence, I must respectfully dissent from the main opinion.

An employer may be held liable for the payment of unauthorized, nonemergency medical treatment in the following instances:

“(1) [W]here the employer has neglected or refused to provide the necessary medical care; (2) where the employer has consented to the employee’s choice of physicians; (3) where notice of and request for alternative care would be futile; and (4) where other circumstances exist to justify the selection of alternative care by the employee.”

Ex parte Moncrief, 627 So.2d 385, 388 (Ala.1993). After an ore tenus proceeding, the trial court entered an order containing detailed findings of fact and concluding that Continental Grain had failed, through flagrant neglect, to provide Maier with the medical services to which she was entitled. This case is governed by the 1992 Workers’ Compensation Act. That Act provides that an appellate court’s review of the standard of proof and its consideration of other legal issues shall be without a presumption of correctness. § 25-5-81(e)(l), Ala.Code 1975. It further provides that when an appellate court reviews a trial court’s findings of fact, those findings will not be reversed if they are supported by substantial evidence. § 25-5-81 (e)(2). Our supreme court “has defined the term ‘substantial evidence,’ as it is used in § 12-21-12(d), to mean ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996), quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This court has also concluded: “The new Act did not alter the rule that this court does not weigh the evidence before the trial court.” Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995).

I conclude that the trial court’s judgment is supported by substantial evidence and that the main opinion has on appeal impermissibly reweighed the evidence in reversing that judgment. Accordingly, I must dissent.


author: CRAWLEY, Judge.

text:
    Sidney McLEAN v. WHEATON VAN LINES, INC.
    2000692.
    Court of Civil Appeals of Alabama.
    Feb. 22, 2002.
    Rehearing Denied April 12, 2002.
    Certiorari Denied Aug. 16, 2002 Alabama Supreme Court 1011465.

      Sidney McLean, pro se.
    Thomas S. Spires and Matthew C. Williams of Smith, Spires & Peddy, P.C., Birmingham, for appellee.
   CRAWLEY, Judge.

In August 1999, Sidney McLean sued Wheaton Van Lines, an interstate common carrier, alleging breach of contract, bad faith, and the tort of outrage. Wheaton moved for a summary judgment, asserting that McLean’s claims were preempted by 49 U.S.C. § 14706, the Carmack Amendment to the Interstate Commerce Act, and barred by the time-to-sue limitation specified in the bill of lading — the contract signed by the parties. The trial court entered a summary judgment for Whea-ton; McLean appealed to the Alabama Supreme Court. The supreme court transferred the case to this court, pursuant to § 12-2-7(6), Ala.Code 1975. We affirm.

In January 1995, McLean hired Whea-ton, a moving company with a place of business located in Birmingham, Alabama, to pack and ship his household goods from his former residence in Pennsylvania to his new residence in New Mexico. Wheaton informed McLean that the applicable tariff for packing, carriage, and shipment of his property was $5,428.10. McLean paid an additional $240 for “replacement value protection” of his property, a charge that Wheaton listed under the “Remarks” section of its estimate as

“Insurance: Full Replacement — $30,000 valuation @ $8/1000 = $240.”

After the property was delivered, McLean discovered that some of his furniture and household goods had been damaged. McLean obtained two estimates for the repair of his property, informed Wheaton that each of the repair estimates was approximately $1,800, and made a claim for that amount. Wheaton obtained its own estimates and concluded that the damaged items could be repaired for $780. On November 30, 1995, Wheaton notified McLean that it would not pay his claim as submitted and offered to have McLean’s property repaired according to its own estimate. McLean refused to accept the offer and sued on August 19, 1999, three years and nine months after Wheaton had denied his claim.

Section 6 of the bill of lading states:

“As a condition precedent to recovery, a claim for any loss or damage, injury or delay must be filed in writing with carrier within nine (9) months after delivery to consignee as shown on face hereof, or in case of failure to make delivery, then within nine months after a reasonable time for delivery has elapsed; and suit must be instituted against carrier within two (2) years and one (1) day from the date when notice in writing is given by carrier to the claimant that carrier has disallowed the claim or any part or parts thereof specified in the notice. Where a claim is not filed or suit is not instituted thereon in accordance with the foregoing provisions, carrier shall not be hable and such a claim will not be paid.”

(Emphasis added.)

The pertinent facts in this case are undisputed. Therefore, we review the circuit court’s application of the law to the facts to determine whether Wheaton was entitled to a judgment as a matter of law. See Carpenter v. Davis, 688 So.2d 256, 258 (Ala.1997). No presumption of correctness attaches to the decision of a trial court on a summary-judgment motion, and our review is de novo. See Gossett v. Twin County Cable T.V., Inc., 594 So.2d 635 (Ala.1992).

McLean’s complaint alleged three claims under state law — breach of contract, bad faith, and the tort of outrage. It did not directly allege any claim under federal law. Wheaton raised as a defense to McLean’s state-law claims that they were preempted by federal law, specifically by 49 U.S.C. § 14706, often referred to as the Carmack Amendment. The Carmack Amendment was passed in 1906 as an amendment to the Interstate Commerce Act of 1887. See Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 703 (4th Cir.1993). Its purpose was to establish uniform national guidelines for interstate carriers’ liability and to avoid the uncertainty that had previously resulted from a multiplicity of state standards. See e.g., Adams Express Co. v. Croninger, 226 U.S. 491, 506, 33 S.Ct. 148, 57 L.Ed. 314 (1913); Rini v. United Van Lines, Inc., 104 F.3d 502, 504 (1st Cir.), cert. denied, 522 U.S. 809, 118 S.Ct. 51, 139 L.Ed.2d 16 (1997); Howe v. Allied Van Lines, Inc., 622 F.2d 1147, 1156-57 (3d Cir.1980); Bear MGC Cutlery Co., Inc. v. Estes Express Lines, Inc., 132 F.Supp.2d 937, 942 (N.D.Ala.2001).

The Carmack Amendment addresses the subject of carrier liability for goods lost or damaged during shipment and provides shippers like McLean with the statutory right to recover for the actual loss or injury to their property caused by any of the carriers involved in the shipment. See 49 U.S.C. § 14706(a)(1). It requires a carrier to issue a bill of lading for property it receives for transportation, id., and prohibits a carrier from establishing, in the bill of lading or otherwise, “a period of less than 9 months for filing a claim against it under this section and a period of less than 2 years for bringing a civil action against it under this section.” 49 U.S.C. § 14706(e)(1). “The period for bringing a civil action is computed from the date the carrier gives a person written notice that the carrier has disallowed any part of the claim specified in the notice.” Id.

The statute provides that the state and federal courts have concurrent jurisdiction of liability suits against interstate carriers for lost or damaged goods. See 49 U.S.C. § 14706(d)(3); Bear MGC Cutlery, 132 F.Supp.2d at 943, 947. However, by virtue of 28 U.S.C. § 1337(a) and 28 U.S.C. § 1445(b), the state courts have, in effect, exclusive jurisdiction over some Carmack Amendment claims. A state court adjudicating a Carmack Amendment claim must apply federal law. See Bear MGC Cutlery, 132 F.Supp.2d at 943; Lamm v. Bekins Van Lines Co., 139 F.Supp.2d 1300, 1313 (M.D.Ala.2001).

In the present case, McLean did not directly allege a Carmack Amendment claim. He argues that the trial court erred by determining that his state law breach-of-contract claim was barred by the two-year-and-one-day limitations period for filing suit that appears in the bill of lading. He maintains that the “replacement value protection” for which he bargained with Wheaton was an “insurance contract” subject to the six-year statute of limitations found at § 6-2-34(4), Ala.Code 1975. Wheaton contends that McLean has no state-law claims, including a breach-of-insurance-contract claim, because, it says, those claims are preempted by the Carmack Amendment. Citing West Brothers, Inc. v. Resource Management Service, Inc., 283 Ala. 78, 214 So.2d 431 (1968), and Hughes v. United Van Lines, Inc., 829 F.2d 1407 (7th Cir.1987), cert. denied, 485 U.S. 913, 108 S.Ct. 1068, 99 L.Ed.2d 248 (1988), Wheaton insists that the Carmack Amendment provides the exclusive remedy of an interstate shipper against a carrier for damages to goods. In West Brothers, the shipper sued the carrier in state court, seeking damages for the carrier’s delay in transporting a quantity of seed. The opinion does not recite the shipper’s specific claims; it merely states that there were six counts in the complaint: four “ex delicto” and two “ex con-tractu.” Without specifying the nature of either the tort claims or the contract claims, the Alabama Supreme Court resolved all issues by applying the Carmack Amendment, stating that the amendment “pre-empts the field and supercedes all state common law rights arising from a breach of a bill of lading contract for the interstate carriage of goods.” 283 Ala. at 82, 214 So.2d at 433.

In Hughes, the shippers filed in the federal court a Carmack Amendment claim and several state-law claims, including negligence, breach of insurance contract, breach of contract of carriage, conversion, intentional misrepresentation, negligent misrepresentation, and negligent infliction of emotional distress. 829 F.2d at 1411 n. 5. The United States Court of Appeals for the Seventh Circuit held that all the state-law claims were preempted by the Carmack Amendment. Countering with Beers v. North American Van Lines, Inc., 836 F.2d 910 (5th Cir.1988), McLean contends that the United States Court of Appeals for the Fifth Circuit has decided that the Carmack Amendment does not preempt all state-law claims

We conclude that Hughes is relevant to the preemption issue in this case, but Beers is not. In analyzing the cases that have discussed federal preemption with regard to the Carmack Amendment, it is important to distinguish “complete” or “super” preemption from “ordinary” preemption. “Complete preemption” is a jurisdictional concept that mandates a federal court’s authority over the subject matter of a lawsuit, justifies removal of a state claim to federal court, and prevents remand to a state court. See Beers v. North American Van Lines, Inc., 836 F.2d 910 (5th Cir.1988); Bear MGC Cutlery, 132 F.Supp.2d at 939; Lamm, 139 F.Supp.2d at 1304. “Ordinary preemption,” on the other hand, is a federal defense to a state cause of action. Id.

“ ‘[T]he term “preemption” ... has caused a substantial amount of confusion between the complete preemption doctrine and the broader and more familiar doctrine of ordinary preemption. For that reason, it is worth pointing out that: complete preemption functions as a narrowly drawn means of assessing federal removal jurisdiction, while ordinary preemption operates to dismiss state claims on the merits and may be invoked in either federal or state court.’ ”

Lamm, 139 F.Supp.2d at 1304 (quoting Smith v. GTE Corp., 236 F.3d 1292, 1313 (11th Cir.2001)).' The Hughes court, when it held that the plaintiffs state-law claims were preempted by the Carmack Amendment, was deciding the viability of a federal defense to state causes of action and was discussing “ordinary preemption.” On the other hand, the Beers court, when it held that the plaintiffs state-law claims were not preempted by the Carmack Amendment, was deciding an issue of subject-matter jurisdiction and was discussing “complete preemption.” Beers, therefore, is not authority for McLean’s argument that the ordinary preemptive effect of the Carmack Amendment does not bar a state law breach-of-insurance contract claim.

Although there is a split of authority as to whether the Carmack Amendment “completely preempts” state law claims (in the sense of transforming them into federal claims and giving the federal courts sole subject-matter jurisdiction to adjudicate them), compare Bear MGC Cutlery Co., Inc. v. Estes Express Lines, Inc., 132 F.Supp.2d 937 (N.D.Ala.2001) (finding that complete preemption exists), with Lamm v. Bekins Van Lines Co., 139 F.Supp.2d 1300 (M.D.Ala.2001) (finding that complete preemption does not exist), there is near unanimity in holding that, with regard to “ordinary preemption,” the Carmack Amendment is a defense to all state-law claims alleging loss or injury to property shipped in interstate commerce. See, e.g., Hopper Furs, Inc. v. Emery Air Freight Corp., 749 F.2d 1261, 1264 (8th Cir.1984) (holding that “[a]ll actions against a common carrier, whether designated as tort or contract actions, are governed by the federal statute”); White v. United Van Lines, Inc., 758 F.Supp. 1240, 1243 (N.D.Ill.1991) (holding that a claim alleging breach of an insurance contract was preempted).

For those state-law claims alleging something other than loss or injury to the goods, there is a divergence of opinion as to the ordinary preemptive effect of the Carmack Amendment. Compare, e.g., Gordon v. United Van Lines, Inc., 130 F.3d 282 (7th Cir.1997) (allowing an emotional distress claim), with Moffit v. Bekins Van Lines Co., 6 F.3d 306 (5th Cir.1993) (holding that an emotional distress claim was preempted). There are a number of decisions that would allow state-law claims alleging “separate” or “incidental” harm, i.e., harm in addition to or different from the harm due to loss of the goods. See, e.g., North American Van Lines, Inc. v. Pinkerton Sec. Sys., Inc., 89 F.3d 452 (7th Cir.1996) (suggesting that a deceptive-trade-practices claim might not be preempted). Contra Nowakowski v. American Red Ball Transit Co., 288 Ill.App.3d 348, 680 N.E.2d 441, 223 Ill.Dec. 708 (1997).

Because the Alabama Supreme Court’s 1968 decision in West Brothers predates the modern cases dealing with the ordinary preemptive effect of the Car-mack Amendment on state law claims, and because the opinion in West Brothers does not specify the nature of the state-law claims implicitly determined by the Alabama Supreme Court to be preempted, we are unsure as to the reach of West Brothers. We need not decide the question of “ordinary preemption” in this case, however, because we conclude that, even if McLean’s state-law breach-of-contract claim is not preempted by the Carmack Amendment, it is barred by state law, i.e., the contractual time-to-sue limitation in the bill of lading. Section 6-2-15, Ala.Code 1975, provides:

“Except as may be otherwise provided by the Uniform Commercial Code, any agreement or stipulation, verbal or written, whereby the time for the commencement of any action is limited to a time less than that prescribed by law for the commencement of such action is void.”

Section 7-7-309(3), Ala.Code 1975, a part of the Alabama Uniform Commercial Code, does “otherwise provide” that “[r]ea-sonable provisions as to the time and manner of presenting claims and instituting actions based on the shipment may be included in a bill of lading or tariff.” The two-year-and-one-day “time-to-sue” limitation included in the bill of lading is based on a congressional determination of what is a “reasonable time” for filing suit. See Note, Carriers — Goods: Limitation of Liability — Suit Permitted Within Bill of Lading Period Authorized by Federal Act Despite Shorter State Statute of Limitations, 66 Harv. L.Rev. 923 (1953). The validity of a bill of lading limitations period has long been recognized. See, e.g., Leigh Ellis & Co. v. Davis, 260 U.S. 682, 688-89, 43 S.Ct. 243, 67 L.Ed. 460 (1923) (affirming the application of a contractual term requiring that suit be filed within two years and one day). McLean is, therefore, bound under state law by the two-year- and-one-day time-to-sue limitation in the bill of lading because it was a reasonable limitation on the time for instituting an action against Wheaton. McLean’s complaint, filed three years and nine months from the event triggering the running of the time-to-sue limitation, was untimely.

The judgment of the circuit court is affirmed.

AFFIRMED.

THOMPSON, PITTMAN, and MURDOCK, JJ., concur.

YATES, P.J., concurs in the result.

      . The Carmack Amendment was recodified in the ICC Termination Act of 1995, Pub.L. No. 104-88, 1995 U.S.C.C.A.N. (109 Stat.) 803. Until its recodification, it was known as “the Carmack Amendment to the Interstate Corn-merce Act.” Following the lead of every court that has discussed the current statute, we refer to § 14706 as the "Carmack Amendment.”

      . 28 U.S.C. § 1337(a) states that original federal question jurisdiction over Carmack Amendment claims is limited to actions for which "the matter in controversy for each receipt or bill of lading exceeds $10,000, exclusive of interest and costs.” 28 U.S.C. § 1445(b) states that a civil action arising under the Carmack Amendment cannot be removed from state court to federal court unless the matter in controversy exceeds $10,000.

      . McLean makes no argument regarding his bad-faith and tort-of-outrage claims, probably because both of those claims are subject to the two-year limitations period set out in § 6-2-38(l), Ala.Code 1975, see Alfa Mut. Ins. Co. v. Smith, 540 So.2d 691, 692-93 (Ala.1988) (bad faith); Archie v. Enterprise Hosp. & Nursing Home, 508 So.2d 693, 695 (Ala.1987) (outrage).


text:
    Tony D. FARMER v. Christy FARMER.
    2000866.
    Court of Civil Appeals of Alabama.
    March 8, 2002.
    Rehearing Denied May 31, 2002.
    Certiorari Denied Aug. 16, 2002 Alabama Supreme Court 1011734.
    Jeffrey P. Montgomery, Gadsden, for appellant.
    Scott F. Stewart of Callis, Stover & Stewart, Rainbow City, for appellee.
   CRAWLEY, Judge.

On June 14, 2000, the trial court divorced Tony D. Farmer (the “father”) and Christy Farmer (the “wife”), awarding them joint legal custody of their two minor children and awarding the mother sole physical custody. On July 18, 2000, the father and Larry Farmer and Linda Farmer (the paternal grandparents), as in-tervenors, filed a postjudgment motion, requesting the trial court to reconsider certain aspects of the visitation provisions of the divorce judgment, pursuant to Rule 59(e), Ala. R. Civ. P. Because the motion was filed 34 days after the divorce judgment was entered, the motion was untimely and did not toll the time for taking an appeal. Rule 59(e). Despite that fact, the trial court held a hearing on the father’s motion.

At that hearing, the father admitted that his postjudgment motion was untimely; he attempted to substitute for that motion a petition to modify custody. The mother’s attorney strenuously objected, arguing that the petition was the filing of a new case that required payment of a filing fee and proper service on the mother. The father’s attorney disagreed, stating that, because the petition was filed within 30 days of the last action in the case, the father, by filing the petition, was not filing a new case and was not required to pay a filing fee. The trial court denied the mother’s motion to strike the petition and proceeded to take testimony. When the trial court denied the petition to modify, the father appealed.

Because “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu,’ Wallace v. Tee Jays Mfg., Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)), we must first consider whether we have jurisdiction over the father’s appeal. At issue is whether the father’s petition to modify was properly before the trial court. We conclude that the trial court lacked jurisdiction over the petition because of the father’s failure to properly file the petition, his failure to pay a filing fee, and his failure to properly serve the mother.

Our supreme court has stated that a petition to modify is a separate action that requires a proper filing, the payment of a filing fee, and service. See Ex parte Davidson, 782 So.2d 237, 240 (Ala.2000) (“The filing of a petition to modify a domestic-relations judgment is, for purposes of applying the rules of procedure, treated as the filing of a separate action.”); see also Opinion by the Clerk, 381 So.2d 58, 59 (Ala.1980). Based on the statement of the Alabama Supreme Court in Davidson, the father’s attempt to file his petition to modify by substituting it for his postjudgment motion is ineffective because he did not pay a filing fee, did not file the petition, and did not serve the mother.

First, the father did not properly file his petition to modify with the court. The father’s attorney handed the trial judge and the mother’s attorney the petition to modify in open court during a hearing originally scheduled on the father’s postjudgment motion. Further, the petition to modify is not included in the record, nor is it noted on the trial court’s case-action-summary sheet as having been filed. This does not constitute a proper “filing” for purposes of Rule 3, Ala. R. Civ. P., as that term is defined in Rule 5(e), Ala. R. Civ. P., which states:

“(e) Filing With the Court Defined. The filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules.”

Secondly, the father did not pay a filing or docketing fee. Such a fee must be collected when a case is filed. See Ala.Code 1975, § 12-19-70; see also Davidson, 782 So.2d at 240. The failure to pay the filing or docketing fee is a jurisdictional defect. See Carpenter v. State, 782 So.2d 848, 850 (Ala.Crim.App.2000) (citing § 12-19-70; De-Gas, Inc. v. Midland Resources, 470 So.2d 1218, 1220 (Ala.1985)).

Finally, the mother was not properly served as required by Rule 4, Ala. R. Civ. P. Rule 4(a) requires that, after a proper filing, service be made by use of a summons or other process issued by the clerk of the court. Rule 4(a)(2) also states, in pertinent part:

“The summons, or other process ... shall be signed by the clerk, contain the name of the court and the name of the first party on each side ..., be directed to the defendant ..., state the name and address of the plaintiffs attorney, if any, otherwise the plaintiffs address, and the time within which these rules require the defendant to appear and defend, and shall notify the defendant that, in case of the defendant’s failure to do so, judgment by default will be rendered against the defendant for the relief demanded in the complaint.”

The mother’s attorney objected to the in-court “service” of the petition, arguing that the rules required the mother to be served properly with a summons. Clearly, the father did not comply with Rule 4.

The father’s petition to modify was not properly before the trial court for at least two reasons — failure to pay a docketing or filing fee and failure to properly serve the mother. The failure to properly serve the mother deprived the trial court of jurisdiction, see Ex parte Pate, 673 So.2d 427, 428-29 (Ala.1995), as did the failure of the clerk to collect a filing fee. See Carpenter, 782 So.2d at 850. The trial court’s judgment was void for lack of jurisdiction. Because a void judgment will not support an appeal, see Veteto v. Yocum, 792 So.2d 1117, 1119 (Ala.Civ.App.2001) (citing Jones v. Sears, Roebuck & Co., 342 So.2d 16, 17 (Ala.1977)), the father’s appeal must be dismissed.

APPEAL DISMISSED.

THOMPSON, PITTMAN, and MURDOCK, JJ„ concur.

YATES, P.J., concurs in the result.


text:
    Tina BROUGHTON, administratrix of the Estate of Melissa St. Laurent v. ALLSTATE INSURANCE COMPANY.
    2000817.
    Court of Civil Appeals of Alabama.
    March 15, 2002.
    Rehearing Denied April 26, 2002.
    Certiorari Denied Aug. 16, 2002 Alabama Supreme Court 1011548.

      George H. Howell and William P. Roberts II of Howell, Sarto & Howell, Pratt-ville, for appellant.
    David E. Allred of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellee.
   PITTMAN, Judge.

In December 1999, Tina Broughton, as administratrix of the estate of Melissa St. Laurent, sued Allstate Insurance Company, Commercial Union Insurance Company, and The Miller Mutual Insurance Company, for uninsured-and/or-underinsured-motorist benefits. The trial court entered a summary judgment for both Allstate and Commercial Union. Broughton voluntarily dismissed Miller Mutual with prejudice. Broughton appeals only the summary judgment for Allstate.

Rule 56(c)(1) sets out a two-part standard for entering summary judgments. The trial court must determine (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law. See Hinkle v. Burgreen Contracting Co., 678 So.2d 797, 799 (Ala.Civ.App.1996). Furthermore, to defeat a properly supported motion for summary judgment, the nonmovant must present “substantial evidence” to support the claim. Section 12-21-12, Ala.Code 1975. Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In determining whether substantial evidence exists to defeat a summary-judgment motion, a court must view the evidence in a light most favorable to the nonmoving party. Goodwin v. City of Fultondale, 706 So.2d 766, 767 (Ala.Civ.App.1997).

Tina Broughton’s daughter, Melissa St. Laurent, was killed in an automobile accident while she was a passenger in a car driven by her fiancé Russell Scott. Her fiancé was also killed in the accident. Allstate insured the ear in which St. Laurent and her fiancé were riding. The policy contains an exclusion in its uninsured/un-derinsured motorist coverage that states:

“An uninsured auto is not:
“1.... '
“2. a motor vehicle which is insured under the Liability Insurance coverage of this policy.”

Allstate relied on this exclusion to deny underinsured-motorist benefits Broughton was seeking under the policy.

Our supreme court upheld this same exclusion in Allstate Insurance Company v. Hardnett, 763 So.2d 963 (Ala.2000), and affirmed a summary judgment for Allstate. Broughton argues that the holding of Hardnett is limited to situations where family members collude to commit fraud. She relies on the following language:

“Allstate points out in its brief that it was particularly concerned that, without such an exclusion, family members could easily commit fraud against an insurance company. By placing in the policy the exclusion Allstate relies on here, the insurance company prevents the possibility of any such fraud. We agree with Allstate that Alabama law allows this exclusion.”

Allstate Ins. Co. v. Hardnett, 763 So.2d at 965. Broughton argues that no such fraud exists in this case because both St. Laurent and her flaneé were killed in the accident, and it is impossible for them to have committed insurance fraud in order to benefit their estates.

We conclude that the holding of Hard-nett is not limited to cases involving fraud and collusion by family members. The supreme court simply stated one of the arguments advanced by Allstate in favor of the exclusion’s validity. The supreme court, in upholding the exclusion, did not limit its holding to cases involving fraud. Broughton does not argue that the exclusion is ambiguous, and the Hardnett court concluded that the exclusion was not ambiguous.

Broughton also argues that the automobile in which St. Laurent was traveling could be an uninsured vehicle under Hogan v. State Farm Mutual Automobile Insurance Company, 730 So.2d 2d 1157 (Ala.1998), overruled on other grounds, Williamson v. Indianapolis Life Insurance Company, 741 So.2d 1057 (Ala.1999). The Hogan court held that a passenger who was barred from suing a driver pursuant to § 32-1-2, Ala.Code 1975, the “Guest Statute,” could recover uninsured-motorist benefits. Broughton argues that the Guest Statute would bar St. Laurent from suing her flaneé; therefore, she should be allowed to recover uninsured-motorist benefits despite the exclusion in the liability provisions of the policy barring uninsured or underinsured coverage for a vehicle insured by the policy. The Hardnett court addressed this argument as well and distinguished Hogan due to the fact that the liability claim in Hogan was made under a different policy than the uninsured-motorist claim. 763 So.2d at 965. In Hardnett and in this case, the liability claim and the uninsured-motorist claim are made under the same policy. Therefore, we conclude that Hardnett precludes Broughton from seeking uninsured-motorist benefits under the holding of Hogan as well.

Therefore, we affirm the summary judgment on the authority of Hardnett.

AFFIRMED.

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

YATES, P.J., dissents.

YATES, Presiding Judge,

dissenting.

Because I believe that our supreme court’s holding in Allstate Insurance Co. v. Hardnett, 763 So.2d 963 (Ala.2000), is limited to situations in which family members collude to commit fraud, I must respectfully dissent from the main opinion.

The same exclusion at issue in this case was at issue in Hardnett, supra. In upholding the exclusion in that case, our supreme court stated:

“Allstate points out in its brief that it was particularly concerned that, without such an exclusion, family members could easily commit fraud against an insurance company. By placing in the policy the exclusion Allstate relies on here, the insurance company prevents the possibility of any such fraud. We agree with Allstate that Alabama law allows this exclusion.”

Hardnett, 763 So.2d at 965.

I believe the holding of Hardnett limits the applicability of the exclusion in question to situations where there is a potential for family members to commit fraud. In this case St. Laurent and Scott were killed in the auto accident. Broughton and the insured were not related either by blood or by marriage. Certainly St. Laurent did not go so far as to stage an accident in which she was killed in order for her mother to collect the uninsured benefits of an automobile insurance policy. Because there is no evidence of collusion for the purposes of committing fraud by family members in this case, I believe the exclusion is inapplicable; therefore, I dissent.