author: SEE, Justice.

text:
    Ex parte Curtis Dale HOLTON. (In re Mastec North America, Inc. v. Curtis Dale Holton).
    1012143.
    Supreme Court of Alabama.
    June 13, 2003.
    Rehearing Denied Dec. 19, 2003.
    Ross Diamond III of Diamond, Hasser & Frost, Mobile, for petitioner.
    William A. Austill, Conley W. Knott, and Anastasia P. Campbell of Austill, Lewis & Simms, P.C., Birmingham, for respondent.
   SEE, Justice.

In this workers’ compensation case, Curtis Dale Holton petitioned this Court for certiorari review of the Court of Civil Appeals’ judgment reversing the trial court’s award of workers’ compensation benefits. The trial court found that Holton was injured in the line and scope of his employment and that he is permanently and totally disabled. We granted Holton’s petition; we reverse and remand.

Curtis Dale Holton lives in West Monroe, Louisiana; he was 23 years old on the day of his accident. On October 14, 1999, Holton was working for Mastec North America, Inc., laying conduit for fiber-optic cable along U.S. Highway 90 near the Styx River in southeast Baldwin County. Late in the afternoon on October 14, Mastec’s boring superintendent suggested that the crew take a break and go swimming in the Styx River.

The crew went swimming at a spot along the river where the bank was sandy; there was a rope swing hanging from a tree. One member of the work crew grabbed the rope swing and jumped safely from the swing into the deep part of the river. Holton was next in line for the rope swing. Holton grabbed the rope and attempted to jump into the deep water in the middle of the river; instead, he slipped and fell into shallow water, breaking his neck at the C6-C7 vertebrae. As a result of the accident, he is essentially paralyzed from the neck down; he retains very limited movement of his hands and arms.

On June 2, 2000, Holton sued Mastec in the Baldwin Circuit Court seeking workers’ compensation benefits and medical benefits. After a bench trial, the trial court entered a judgment awarding past and future compensation for permanent total disability, compensation for future medical expenses, and $176,494.48 for past medical expenses. The trial court found:

“The MasTec supervisors, including Parker Johnson, had permitted the men to engage in a variety of recreational activities during breaks in the work activity, such as hitting golf balls into the pastures along the roadside, throwing a football, going on boat rides, and swimming in the creeks and rivers near the work sites.... The employer had no policy prohibiting such recreational activities on the job. The defendant failed to produce employee manuals, written work rules, or other document[s], even though they had been requested by the plaintiff and ordered produced by the Court. The Court therefore finds that such activities were permitted by the employer and served the purpose of making the difficult work conditions more tolerable.
“It is the testimony of every person who was present at the time of the accident that the crew was going to close up its boring operation in that location and go to assist another crew in a different location, after the men took a break to go swimming.... The plaintiff and his fellow employees were still on the job at the time of his injury. Therefore, the Court finds that the plaintiffs injury occurred during the course of employment.”

Mastec moved to alter, amend, or vacate the judgment. On October 25, 2001, the trial court entered an amended judgment, modifying only the manner in which Mas-tec could satisfy that part of the judgment awarding past medical expenses. Mastec appealed to the Court of Civil Appeals. The Court of Civil Appeals reversed the trial court’s judgment, Mastec North America, Inc. v. Holton, 886 So.2d 79 (Ala. Civ.App.2002), and subsequently overruled Holton’s application for a rehearing. Hol-ton petitioned this Court for certiorari review, which we granted.

Section 25-5-81(e), Ala.Code 1975, sets forth the applicable standard of review in a workers’ compensation case:

“(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”

“The trial court’s findings of fact ‘ “on disputed evidence in a workers’ compensation case are conclusive.” ’ ” Ex parte Drummond Co., 837 So.2d 831, 832-33 (Ala.2002)(quoting Ex parte Golden Poul try, 772 So.2d 1175, 1176 (Ala.2000)(quoting in turn Ex parte Ellenburg, 627 So.2d 398, 399 (Ala.1993))).

Holton argues that his injuries arose from his employment. He argues that in deciding his case, the Court of Civil Appeals failed to follow its own decision in LFI Pierce, Inc. v. Carter, 829 So.2d 158 (Ala.Civ.App.2001), cert. denied, 829 So.2d 163 (Ala.2002), and, as a result, the Court of Civil Appeals has created a defense of “contributory negligence” in a workers’ compensation case. Mastec argues that Holton’s injury did not arise out of his employment. Mastec also argues that even if, for the sake of argument, a swim break was part of Holton’s employment, the manner in which Holton attempted to enter the water was unreasonable and unconventional, and he is therefore not due compensation.

Under Alabama workers’ .compensation law, “ ‘[a]n injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incident to it.’ ” Ex parte Shelby County Health Care Auth., 850 So.2d 332, 336 (Ala.2002)(quoting Anderson v. Custom Caterers, Inc., 279 Ala. 360, 361, 185 So.2d 383, 384-85 (1966)).

Holton argues that Alabama courts have routinely found workers’ injuries to be compensable when workers on a job are injured while ministering to their personal needs. Holton argues that this case is analogous to LFI Pierce. In LFI Pierce, Phillip Mahan, an employee of LFI Pierce, Inc., d/b/a Labor Finders, was working to remove storm debris from a steep slope on a residential lot on Lake Tuscaloosa. The temperature and humidity were both high. Because of the extreme and oppressive conditions, the work crew took a 15-min-ute break every 45 minutes. During one of those breaks, crew members walked down to the lake for a swim. Mahan joined his coworkers in the lake and drowned.

The Court of Civil Appeals held in LFI Pierce that “[cjonsidering the particular facts of this case and keeping in mind the beneficent purpose of the [Workers’ Compensation] Act, we conclude that Mahan did not substantially deviate from his employment by jumping into the lake to cool off.” 829 So.2d at 160. The Court of Civil Appeals noted:

“ ‘It is well settled that work-connected activity goes beyond the direct services performed for the employer and includes at least some ministration to the personal comfort and human wants of the employee. Such acts which are necessary to the life, comfort, and convenience of the employee while at work, though strictly personal to himself, and not acts of service are incidental to the service. Therefore, an injury sustained in the performance thereof is deemed to have arisen out of the employment.’ ”

Id. (quoting Gold Kist, Inc. v. Jones, 537 So.2d 39, 41 (Ala.Civ.App.1988)).

Holton argues that in this case the Court of Civil Appeals adopted a new rule that creates a defense of an employee’s own negligence to a workers’ compensation claim. In Holton’s case, the Court of Civil Appeals held

“that the employee’s action of attempting to jump into the river from a rope swing is an ‘unreasonably dangerous or unconventional’ method of cooling off or taking a work break. Therefore, we conclude that the trial court erred by finding that the employee’s accident ‘arose out of and ‘in the course of his employment.”

886 So.2d at 81. Mastec argues the Court of Civil Appeals’ holding is correct because, it argues, jumping from a rope swing is an unreasonable means to enter a river in order to take a swim and cool off on a hot day.

Holton notes that § 25-5-51, Ala. Code 1975, states that workers’ compensation benefits should be paid in any case where an employee is injured “by an accident arising out of and in the course of his or her employment, without regard to any question of negligence.” “Our [Workers’] Compensation Laws were adopted from those of Minnesota and the Minnesota construction of their laws is of persuasive value to this court.” Eley v. Brunner-Lay Southern Corp., 289 Aa. 120, 125, 266 So.2d 276, 280-81 (1972). In Snyder v. General Paper Corp., 277 Minn. 376, 152 N.W.2d 743, 748 (1967), a salesperson, Reuben Snyder, died when he choked on a piece of meat while he was eating dinner with a client. The Supreme Court of Minnesota analogized the case to one in which it had awarded workers’ compensation benefits after an employee died from eating poisoned food, and held in the case of the choking:

“[I]n both situations the event causing injury had its origin in circumstances created by the employer for the purpose of furthering the employer’s business, and the death or injury flowed as a natural consequence therefrom. Whether [the] employee may have been negligent in his manner of eating is immaterial since contributory negligence does not relieve an employer from liability under the [Workers’] Compensation Act.”

Because the employee’s eating arose from his employment, the employee’s own negligence in chewing and swallowing did not relieve the employer from liability for his choking. The same rule should apply where an employer sanctions a swimming break for its employees.

In this case Holton went swimming with coworkers during a work break. Holton witnessed a coworker jump safely into the river from a rope swing. Holton then slipped from the same rope swing while jumping into the river. Because Mastec permitted its employees to swim during a break to cool off, Holton’s method of entering the water is not a bar to his receiving workers’ compensation benefits.

Section 25-5-51, Ala.Code 1975, states that “no compensation shall be allowed for an injury or death caused by the -willful misconduct of the employee. Alabama courts, for example, have declined to award workers’ compensation benefits when a worker has been injured while engaging in prohibited “horseplay” in violation of an employer’s rules. See Walden v. Glaze & Son, 616 So.2d 357 (Ala.Civ. App.1992).

Finally, Holton argues that the Court of Civil Appeals erred when it reweighed the facts in this case and substituted its judgment for the judgment of the trial court. Mastec argues that the Court of Civil Appeals did not err when it reversed the trial court’s judgment, because, it argues, the trial court’s findings of fact were not supported by substantial evidence. The Court of Civil Appeals held in this case that Holton was not swimming on a work break during working hours. This Court held in Ex parte Drummond Co., 837 So.2d at 832-33, that a trial court’s findings of fact in a workers’ compensation case are conclusive where the evidence is contested. The trial court found in this case that the evidence was undisputed that Holton was injured during a work break. We find that the Court of Civil Appeals has imper-missibly substituted its judgment for that of the trial court.

Therefore, we reverse the judgment of the Court of Civil Appeals and remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Holton cites Wells v. Morris, 33 Ala.App. 497, 35 So.2d 54 (1948), in support of his argument that Alabama has long awarded compensation to workers injured while ministering to their personal needs in the course of their employment, regardless of the employee's own negligence. In Wells, the Court of Appeals held that a log cutter was entitled to workers' compensation benefits when, notwithstanding his own negligence, a can of lubricating oil he was using to heat his lunch exploded. Holton also cites Natco Corp. v. Mallory, 262 Ala. 595, 80 So.2d 274 (1955). In Natco, during a work break, an employee pulled up some boards and crawled under a moving conveyor belt to retrieve his cigarettes, which had fallen into a pit beneath the belt. The employee was injured when he stuck his hand into a moving wheel as he was getting out of the pit. In Natco, this Court upheld a workers’ compensation award to the employee.

      . The Court of Civil Appeals supported this conclusion with a citation to the following dicta from Gold Kist, Inc., 537 So.2d at 41:
      "Although not a factor in this case, we do point out, however, that the method or manner of seeking personal comfort may be unreasonably dangerous or unconventional and in that instance may not be considered incidental to the work normally within the course of employment."

      . We do not hold in this case that if an employee is injured while swimming during working hours those injuries necessarily arose from the employee's employment; instead, we hold only that where the trial court has found that the employer permitted the employee to swim on a work break and that the employee's negligence led to the employee's injury, this Court will not substitute its judgment for that of the trial court.

      . "The usual meaning assigned to 'willful,'... is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 344 at 213 (5th ed,1984)(footnotes omitted).

      . Mastec is in a far better position than is this Court to define the scope of its employees' duties by establishing clear work rules and procedures adapted to a particular job or workplace. Mastec could have avoided liability for workers’ compensation in this case by prohibiting its workers from swimming during breaks. We note, however, that the trial court found: "The defendant failed to produce employee manuals, written work rules, or other document[s], even though they had been requested by the plaintiff and ordered produced by the Court.”


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    MASTEC NORTH AMERICA, INC. v. Curtis Dale HOLTON.
    2010103.
    Court of Civil Appeals of Alabama.
    Feb. 13, 2004.
    William A. Austin and Shelley D. How-ton of Austill, Lewis & Simms, P.C., Birmingham, for appellant.

      Ross Diamond III of Diamond, Hasser & Frost, Mobile, for appellee.
   After Remand from the Alabama Supreme Court

PITTMAN, Judge.

The prior judgment of this court entered on June 7, 2002, has been reversed, and the cause remanded, by the Supreme Court of Alabama. Ex parte Holton, 886 So.2d 83 (Ala.2003). On remand to this court, and in compliance with the Supreme Court’s opinion, the judgment of the Baldwin Circuit Court is affirmed.

AFFIRMED.

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


author: THOMPSON, Judge. CRAWLEY, Judge,

text:
    James R. MURPHY v. Mary J. Murphy BENVENUTO.
    2011257.
    Court of Civil Appeals of Alabama.
    June 20, 2003.
    Walter L. Gray III of Armstrong & Gray, P.C., Phenix City, for appellant.
    Connie Cooper, Phenix City, for appel-lee.
   THOMPSON, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Ala. R.App. P.; Killen v. Akin, 519 So.2d 926 (Ala.1988); Landis v. Neal, 374 So.2d 275 (AIa.1979); Mullins v. Mullins, 770 So.2d 624 (Ala.Civ.App.2000); Tidwell v. Tidwell, 505 So.2d 1236 (Ala.Civ.App.1987); Oliver v. Oliver, 431 So.2d 1271 (Ala.Civ.App.1983); and East v. East, 395 So.2d 78 (Ala.Civ.App.1980).

The appellee’s request for an attorney fee is denied.

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

MURDOCK, J., concurs in the result.

CRAWLEY, J., dissents.

CRAWLEY, Judge,

dissenting.

I respectfully dissent from the majority’s no-opinion affirmance of the trial court’s judgment. I do not think that the caselaw cited by the majority concerning the merger or rejection of portions of a separation agreement in a final judgment of divorce made between divorcing parties in anticipation of divorce is applicable. The agreement between the parties in this case entitled “Agreement to Modification of Alimony in the Event of Remarriage” was clearly made after the trial court had entered its judgment of divorce. The agreement provided, in pertinent part, that “[ejither party will have the option to petition [the trial court] for modification of the agreement of the parties, upon, and in the event of the marriage of Mary J. Murphy, with a motion that the same be incorporated into the Final Judgment of Divorce as though fully set out herein.”

Although the parties provided for a means by which the trial court could consider their agreement, the trial court could not accept the agreement because it is in violation of § 30-2-55, Ala.Code 1975, which provides:

“Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabitating with a member of the opposite sex....”

(Emphasis added.)

In Harrison v. Harrison, 514 So.2d 1026 (Ala.Civ.App.1986), this court held that an alimony provision, in which the husband had agreed to continue alimony payments to the wife after her remarriage, contained in a separation agreement was an independent contractual obligation because it contained specific language stating that “ ‘[t]he parties agree that this undertaking is contractual in nature and does not lose its identity in that respect by virtue of any judgment of divorce rendered.... ’ ” 514 So.2d at 1028. The husband also acknowledged his awareness of § 30-2-55 in the same paragraph. This court further noted that “since the monthly payments ... are made pursuant to the parties’ contract, they, of course, cannot be statutory periodic alimony payments.” Id. at 1029.

Presiding Judge Wright filed a dissent in Harrison, stating, in pertinent part:

“The cases are legion that if a decree provides for periodic alimony, such provision is modifiable upon proof of changed circumstances.... No agreement of the parties may remove such power of modification. Block v. Block, 281 Ala. 214, 201 So.2d 51 (1967)....
“In this case, the court not only had the power to modify, it was directed to do so by statute [§ 30-2-55, Ala.Code 1975].
“It is the law and then the public policy of this state that modification by termination shall be made upon petition and proof that the recipient of periodic alimony has remarried or is living openly or cohabitating with a member of the opposite sex. If an agreement may nullify the direction of the statute in one instance, it may do so in the other.
“... By definition, periodic alimony is a creature of the court, not the agreement of the parties. The parties may agree that it shall not be modified if granted, but the court may not abdicate its authority to modify. Neither may the court refuse to exercise its authority to modify when directed by statute. Block, supra.

Id. at 1029-30 (Wright, P.J., dissenting). See also Ex parte Harrison, 514 So.2d 1030, 1031 (Ala.1987)(Steagall, J., dissenting from decision to quash writ of certiora-ri as improvidently granted).

I find Presiding Judge Wright’s dissenting opinion in Harrison to be persuasive; furthermore, I believe that this case is distinguishable from Harrison because, as it was acknowledged by the majority in Harrison, that case did not involve statutory periodic alimony payments. See also Oliver v. Oliver, 431 So.2d 1271, 1276 (Ala. Civ.App.1983)(“[The legislature in enacting § 30-2-55] has chosen to limit the discretion of the court by directing that an award of alimony in a prior decree be terminated by the court upon proof that the receiving spouse has remarried. It is well within the power of the legislature to do so.”).

I also would not take issue with the fact that the husband has failed to challenge the agreement’s validity. When this court chooses to affirm the trial court’s judgment on a ground other than the one on which it relied, I do not believe that a party should be required to make alternative arguments in anticipation of that event.

Accordingly, I would reverse the trial court’s judgment.


author: . STUART, Justice. HARWOOD, Justice LYONS, Justice

text:
    Ex parte James R. MURPHY. (In re James R. Murphy v. Mary J. Murphy Benvenuto).
    1021703.
    Supreme Court of Alabama.
    Dec. 30, 2003.

      Walter L. Gray III and Jeremy W. Armstrong of Armstrong & Gray, P.C., Phenix City, for petitioner.
    Connie Cooper, Phenix City, for respondent.
   . STUART, Justice.

James R. Murphy and Mary J. Murphy Benvenuto divorced in April 1998. Incorporated into the parties’ final judgment of divorce was a settlement agreement that provided as follows:

“11. [Benvenuto] shall be awarded $1,500.00 per month as periodic alimony. The award of periodic alimony shall not be taxable to the payee spouse nor deductible to the payor spouse.”

On November 8, 1999, the parties executed an agreement purporting to modify the amount of alimony; that agreement provided:

“1. That the current agreement requiring [Murphy] to pay [Benvenuto] $1,500.00 per month as periodic alimony will be terminated in the event that [Benvenuto] marries a person other than [Murphy], The parties stipulate that in no event shall this agreement take force prior to January 1, 2000, and until such date, the amount of alimony shall remain $1,500.00 per month.
“2. That upon the marriage of [Ben-venuto], [Murphy] agrees to pay [Ben-venuto] the amount of $300.00 per month directly, and these payments shall continue for the remainder of her natural life.
“3. That this money is to be used for the support, maintenance, and general maintenance and for the health of [Ben-venuto] during her lifetime; however, [Benvenuto] agrees to deposit [in an account separate from her estate which upon her death any monies therein would be paid to Murphy] any money not so used.
“Either party will have the option to petition the Circuit Court of Russell ' County, Alabama for modification of the agreement of the parties, upon, and in the event of the marriage of [Benvenu-to], with a motion that the same be incorporated into the Final Judgment of Divorce as though fully set out therein.”

' Benvenuto remarried on December 1, 1999. Murphy paid Benvenuto $300.00 per month from January 2000 until June 2001. On September 20, 2001, Benvenuto petitioned the Russell Circuit Court to modify the final judgment of divorce to reflect the incorporation into the judgment of the agreement to modify alimony in the event of remarriage. On October 11, 2001, Murphy filed an answer and a motion to dismiss the petition. The circuit court conducted a hearing and issued an order on August 12, 2002; that order stated:

“The parties appeared before the court on May 1, 2002 for hearing in this cause. Upon consideration of the pleadings and testimony, comes now the court and finds as follows:
“The parties were divorced by order of this court of April 14, 1998. Pursuant to the order of divorce, [Murphy] was to pay to [Benvenuto] the sum of $1500.00 per month as periodic alimony. That subsequent to the decree of divorce the parties entered into an agreement whereby [Murphy] would reduce periodic alimony to the sum of $300.00 per month upon the remarriage of [Benven-uto], The court therefore] finds that upon [Benvenuto’s] remarriage [Murphy’s] obligation would be reduced by a sum of $1200.00 per month thereby creating a net gain to [Murphy] of the sum of $1200.00 per month should [Benvenu-to] remarry. Therefore, it is the order of this court that an integrated bargain now exists between the parties and it is ordered, adjudged, and decreed
“That permanent periodic alimony to be paid by [Murphy] to [Benvenuto] is set at $300.00 per month as of the date of [Benvenuto’s] remarriage.”

(C.R. 92.)

Murphy appealed the circuit court’s order to the Court of Civil Appeals; that court affirmed, without an opinion. Murphy v. Benvenuto, 886 So.2d 97 (Ala.Civ. App.2003). Murphy petitioned this Court for a writ of certiorari. This Court issued the writ to address the sole question whether, in light § 30-2-55, Ala.Code 1975, the circuit court could incorporate into the divorce judgment the parties’ agreement that Murphy would continue paying Benvenuto periodic alimony after her remarriage.

Standard of Review

“The award of periodic alimony may be modified by the trial court upon the showing of a material change in circumstances. Marshall v. Marshall, 622 So.2d 390 (Ala.Civ.App.1993). In making its determination, the trial court should consider such factors as the recipient spouse’s financial needs, the amount of the estate of each spouse, the ability of the payor spouse to respond to the recipient spouse’s needs, the ability of each spouse to earn income, and the remarriage of either party. Marshall. The burden is on the party seeking the modification to show that a material change in circumstances has occurred. Marshall. A decision to modify periodic alimony lies within the discretion of the trial court and will not be set aside on appeal unless a palpable abuse of that discretion is shown. Maddox v. Maddox, 612 So.2d 1222 (Ala.Civ.App.1992).”

Swain v. Swain, 660 So.2d 1356, 1356-57 (Ala.Civ.App.1995).

“The trial judge made his ruling following a hearing at which he heard testimony from the parties. Where evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So.2d 442 (Ala.1995). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment. Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415 (Ala.1994).... [T]he proper interpretation [of terms in the parties’ divorce agreement] is a question of law. Thus, we review de novo the trial court’s ruling on that issue and the judgment of the Court of Civil Appeals. Justice v. Arab Lumber & Supply, Inc., 533 So.2d 538 (Ala.1988).”

Ex parte Agee, 669 So.2d 102, 104 (Ala.1995).

Issue and Analysis

Murphy contends that the Court of Civil Appeals’ holding affirming the circuit court’s enforcement of the post-divorce agreement between Murphy and Benvenu-to continuing Murphy’s payment of periodic alimony after Benvenuto’s remarriage conflicts with the holding in Oliver v. Oliver, 431 So.2d 1271 (Ala.Civ.App.1983), and with § 30-2-55, Ala.Code 1975.

Section 30-2-55, Ala.Code 1975, provides:

“Any decree of divorce providing' for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex. This provision shall be applicable to any person granted a decree of divorce either prior to April 28, 1978, or thereafter; provided, however, that no payments of alimony already received shall have to be reimbursed.”

In Oliver v. Oliver, 431 So.2d 1271 (Ala. Civ.App.1983), the Court of Civil Appeals addressed similar circumstances. The parties had executed an agreement modifying and reducing alimony, which purported to extend the husband’s payment.of alimony after the remarriage of the wife. The court affirmed the judgment of the circuit court terminating the periodic alimony in light of the wife’s remarriage, stating:

“Section 30-2-55 directs modification of a divorce decree providing for periodic alimony upon proof of-the remarriage of the spouse receiving it. The statute as it now appears was enacted under express authority of amendment 390 to the Constitution of Alabama. The final issue in this case is whether the statute applies if the decree awarding periodic alimony incorporates an express agreement of the parties that such payments shall continue after marriage.
“The wife has presented contentions that § 30-2-55 if applied to cases involving agreements of the parties, is unconstitutional in that it impairs the obligations of a contract and denies due process. We will not discuss these contentions in any length. We find them inapplicable to this case.
“It has long been held in this state that if the parties to a divorce proceeding have entered into an agreement in anticipation thereof and request that its provisions in full or in part be1 included in the decree of the court, such agreement, if incorporated, loses its contractual nature insofar as the right to modify it is concerned. Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348 (1969). This court has said that if there is an agreement between the parties and it is not merged or superseded by the decree of the court, it remains a contract between the parties and may be enforced as any other contract. However, any part of the agreement which is merged in the decree is subject to the equity power of the court and is no longer of a contractual nature. East v. East, 395 So.2d 78 (Ala.Civ.App.1980), cert. denied, 395 So.2d 82 (Ala.1981).
“By adoption of amendment 390 to the constitution and enactment of § 30-2-55, it has become the law and thus the public policy of this state that periodic alimony decreed by the court, which always has been modifiable upon a showing of changed circumstances, Sanders v. Sanders, 342 So.2d 380 (Ala.Civ.App.1977), is now to be terminated upon remarriage of the spouse receiving it. Such law and public policy is consistent with our jurisprudence. Divorce was not a common law right. It is purely statutory. The power to award alimony is also purely statutory. Ivey v. Ivey, 378 So.2d 1151 (Ala.Civ.App.1979). Alimony is derived only through the authority of statute and the exercise of the discretion of the trial judge. Therefore, what the legislature has granted it may take away. It has chosen to limit the discretion of the court by directing that an award of alimony in a prior decree be terminated by the court upon proof that the receiving spouse has remarried. It is well within the power of the legislature to do so.
“It is not the purpose of this decision to speak in any manner to contracts between husband and wife regarding any matters pertaining to their marital interests so long as they are not included in a decree of divorce. It must be recognized however that all matters related to a marriage may come within the authority of the court sitting in equity when the parties submit themselves to its jurisdiction by the filing of a suit for divorce. Owens v. Owens, 281 Ala. 239, 201 So.2d 396 (1967). Any agreement previously made may be accepted or rejected in full or in part as the court determines just and equitable.”

431 So.2d at 1275-76.

Here, when Murphy and Benvenu-to executed the agreement to reduce Murphy’s periodic-alimony payments after her remarriage, the agreement was contractual in nature and could be enforced like any other contract. However, when Benvenu-to petitioned the Russell Circuit Court to incorporate the agreement into the divorce judgment, the agreement lost its contractual nature and became subject to the equity power of the court. Additionally, the language of the agreement, stating that either party could petition the court to incorporate the agreement into the divorce judgment indicates the parties’ intent that the agreement, at any time, could merge into the divorce judgment and not stand as an independent agreement. Consequently, when the agreement became subject to the equity power of the court, it became incumbent upon the court to follow the mandates of § 30-2-55, Ala.Code 1975. Block v. Block, 281 Ala. 214, 201 So.2d 51 (1967). As Presiding Judge Wright stated in his dissent in Harrison v. Harrison, 514 So.2d 1026, 1030 (Ala.Civ.App.1986):

“If there were no merger of the provisions requiring payment of periodic alimony, there could be no enforcement of the payment as ordered by the court. The granting of periodic alimony is solely within the province of the discretion of the court. By definition, periodic alimony is a creature of the court, not the agreement of the parties. The parties may agree that it shall not be modified if granted, but the court may not abdicate its authority to modify. Neither may the court refuse to exercise its authority to modify when directed by statute. Block [v. Block, 281 Ala. 214, 201 So.2d 51 (1967)].”

Evidence was presented at the hearing indicating Benvenuto had remarried; the circuit court exceeded the scope of its authority by ordering Murphy to pay Ben-venuto periodic alimony after her remarriage.

Conclusion '

Applying the principles of law set forth in Oliver, we hold that the circuit court exceeded the scope of its authority in ordering Murphy to. pay alimony after Ben-venuto had remarried, and the Court of Civil Appeals erred in affirming its judgment. The judgment of the Court of Civil Appeals is reversed, and thé case is remanded for further proceedings in light of this opinion.

REVERSED AND REMANDED.

HOUSTON, SEE, BROWN, and WOODALL, JJ., concur.

HARWOOD, J.,-concurs in the rationale in part and concurs in the result.

LYONS, J., dissents.

HARWOOD, Justice

(concurring in the rationale in part and concurring in the result). '

I concur in all aspects of the opinion except the following statement: “However, when Benvenuto petitioned the Russell Circuit Court to incorporate the agreement in the divorce judgment, the agreement lost its contractual nature....” As I understand the relevant caselaw, the agreement would lose its contractual nature when and if it was merged into a judgment of modification. I concur in the judgment.

LYONS, Justice

(dissenting).

The main opinion relies upon Oliver v. Oliver, 431 So.2d 1271 (Ala.Civ.App.1983), which held as follows:

“This court has said that if there is an agreement between the parties and it is not merged or superseded by the decree of the court, it remains a contract between the parties and may be enforced as any other contract. However, any part of the agreement which is merged in the decree is subject to the equity power of the court and is no longer of a contractual nature.”

431 So.2d at 1275 (emphasis added)..

The main opinion thereafter concludes:

“Here, when Murphy and Benvenuto executed the agreement to reduce Murphy’s periodic-alimony payments after her remarriage, the agreement was contractual in nature and could be enforced like any other contract. However, when Benvenuto petitioned the ■Russell Circuit Court to incorporate the agreement into the divorce judgment, the agreement lost its contractual nature and became subject to the equity power of the court.”

886 So.2d at 94 (emphasis added).

In Oliver v. Oliver, the final judgment of divorce incorporated an agreement between the parties containing provision for, among other things, the payment of alimony to the wife for a period of one year after her remarriage. The court in Oliver was dealing with a modification entered into by the parties after the final judgment of divorce, reducing the amount of alimony payable. The subsequent agreement did not in any way relate to the pre-divorce agreement, incorporated into the final judgment, providing for payment of alimony after the former wife’s remarriage. Consequently,‘the’ statement in Oliver that an agreement merged into the judgment loses its contractual status arose in the context of an agreement made before the entry of the final judgment of divorce to continue to pay alimony after the former wife’s remarriage. It appears from the facts here presented that the agreement to pay alimony after remarriage was entered into after the final judgment of divorce was entered.

The trial court in Oliver heard ore tenus evidence concerning the agreement to modify the amount of the alimony obligation and then referred to the transaction as having modified the original judgment. The Court of Civil Appeals described that reference as “confusing and unfortunate.” The court then stated:

“At first impression it may be thought that that finding is contrary to the decision of the Alabama Supreme Court in the case of Holland v. Holland, 406 So.2d 877 (Ala.1981)[,] and the yet unpublished decision in the case of Ex parte Eugene Smith, Jr., 429 So.2d 1050 (Ala.1983). The court held in those cases that a final judgment may not be modified or amended by a subsequent agreement between the parties. Of course that holding is the law. Only the court may modify or amend its final judgment. However, we do not understand that holding to mean that the parties by agreement may not waive or release, in part or in entirety, their rights to the benefits granted by such judgment. Such waiver, satisfaction, credit or release of judgment by subsequent contract is common at law or in equity. Any right held by a party, whether by judgment or otherwise, may be the subject of contract to alter, exchange, waive, sell or satisfy. 15A C.J.S. Compromise and Settlement § 23; Winegardner v. Burns, 361 So.2d 1054 (Ala.1978); Watson v. McGee, 348 So.2d 461 (Ala.1977). Whether there was such a contract with consideration was an issue of fact in this case. The finding of the court that by agreement the wife waived or compromised her right to the full amount of alimony and accepted the lesser amount of $700.00 per month is supported by evidence presented. Though referring to the divorce decree as being modified by agreement, the trial court also found that the wife waived the full amount by agreement. The finding of waiver by agreement viewed with a presumption of correctness is affirmed. McGaha v. Steadman, 410 So.2d 420 (Ala.Civ.App.1981).”

431 So.2d at 1274.

Under that analysis, an agreement entered into after a divorce judgment is entered cannot require the court to modify that judgment. However, if a valid agreement has been entered into, the rights thereby created may be enforced as a contract. While the trial court could not modify its judgment of divorce in violation of § 30-2-55, Ala.Code 1975, it could nevertheless recognize an enforceable contract. The trial court in this proceeding conducted a hearing on Benvenuto’s petition to modify the final judgment of divorce to incorporate the agreement. In its order, the trial court recognized the existence of a contract as follows:

“Therefore, it is the order of this court that an integrated bargain now exists between the parties and it is ordered, adjudged, and decreed
“That permanent periodic alimony to be paid by [Murphy] to [Benvenuto] is set at $300.00 per month as of the date of [Benvenuto’s] marriage.”

(Emphasis added.)

I would deal with Benvenuto’s attempt to characterize the proceeding to enforce her agreement as a modification of the divorce judgment as “confusing and unfortunate,” but, as the court implicitly held in Oliver, not fatal to the contract rights of the parties to the post-divorce agreement. I would limit that portion of Oliver holding that “any part of the agreement which is merged in the decree is subject to the equity power of the court and is no longer of a contractual nature,” 431 So.2d at 1275, to the context in which that statement was made — agreements entered into before the entry of the final judgment of divorce.

In conclusion, had there been no agreement entered into after the final judgment, § 30-2-55 would have required the trial court to modify its final judgment of divorce by discontinuing the obligation of the former husband to pay periodic alimony based upon the former wife’s remarriage. However, the subsequent agreement to continue payment of alimony after the former wife’s remarriage should be recognized as an enforceable contract, and not as a modification to the final divorce judgment, just as the trial court did in this proceeding.

I must therefore respectfully dissent.

      . We note that the agreement provided that Murphy would pay Benvenuto $1,500 per month until January 1, 2000, at which time, in the event of Benvenuto’s remarriage, that amount would be reduced to $300. Benvenu-to remarried on December 1, 1999.

      . Although Benvenuto remarried on December 1, 1999, the parties’ agreement contained a stipulation that “in no event shall this agreement take force prior to January 1, 2000.”


author: THOMPSON, Judge.

text:
    James R. MURPHY v. Mary J. Murphy BENVENUTO.
    2011257.
    Court of Civil Appeals of Alabama.
    Feb. 6, 2004.
    Walter L. Gray III of Armstrong & Gray, P.C., Phenix City, for appellant.
    Connie Cooper, Phenix City, for appel-lee.
   After Remand from the Supreme Court

THOMPSON, Judge.

The prior judgment of this court has been reversed and the cause remanded by the Supreme Court of Alabama. Ex parte Murphy, 886 So.2d 90 (Ala.2003).

On remand to this court, and in compliance with the Supreme Court’s opinion, the judgment of the trial court is hereby reversed and the cause remanded for the trial court to enter a judgment consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: MURDOCK, Judge. PITTMAN, Judge,

text:
    William C. PEAK and Joyce S. Peak v. Jimmy Clyde PARKS, Judie Faye Parks, Jimmy DeWayne Parks, and Parks & Son Excavating, Inc.
    2010191.
    Court of Civil Appeals of Alabama.
    June 30, 2003.
    Rehearing Denied Nov. 26, 2003.

      Charles R. Hare, Jr., and Christopher F. Abel of Gullahorn & Hare, P.C., Albert-ville, for appellants.
    J. Mitchell Frost, Jr., of Ferguson, Frost & Dodson, Birmingham, for appel-lees.
   MURDOCK, Judge.

Jimmy DeWayne Parks and Parks & Son Excavating, Inc., excavated approximately 50 acres of land that was owned by Jimmy DeWayne Parks’s mother and father, Judie Faye Parks and Jimmy Clyde Parks, for the purpose of developing part of the Pine Island Point subdivision on. Lake Guntersville. William C. Peak and Joyce S. Peak, landowners who owned a lakefront house adjacent to the excavated land, appeal from a judgment of the Marshall Circuit Court awarding them $2,500 in compensatory damages and $500 in punitive damages for damage that allegedly resulted from surface-water runoff from the excavation.

On October 8, 1997, the Peaks filed a complaint in the Marshall Circuit Court against Jimmy DeWayne Parks, Parks & Son Excavating, Inc., Judie Faye Parks, and Jimmy Clyde Parks (hereinafter referred to collectively as the “Parkses”). The Peaks alleged that the Parkses had cleared their subdivision property of all natural vegetation, that they had changed the existing slope of their property and had diverted surface water onto the Peaks’ property, that they had caused an increase in surface-water runoff onto the Peaks’ property, that they had failed to construct an appropriate surface-water-runoff control system, and that they had not followed “best management practices” (“BMPs”) to control surface-water runoff. The Peaks alleged that, as a result of the Parkses’ excavation activity, surface-water runoff had damaged them and their lake house. The Peaks asserted claims against the Parkses based upon the theories of negligence, trespass, violation of common-law riparian rights, strict liability, private nuisance, and “wilfulness, wantonness and/or recklessness.” The Peaks requested compensatory damages, interest, and costs in the amount of $100,000 on their negligence claim; they requested compensatory damages, punitive damages, interest, and costs in the amount of $200,000 on each of their remaining claims for damages. They also requested that the trial court grant them injunctive relief by requiring the Parkses to implement appropriate safeguards to prevent, further damage to the Peaks’ property.

In January 2001, the Peaks filed an amended and restated complaint that significantly increased the amount of damages they were seeking. Specifically, the Peaks requested that they be awarded compensatory damages, interest, and costs in the amount of $200,000 on their negligence claim and compensatory damages, punitive damages, interest, and costs of $1,000,000 on each of their remaining claims for damages.

In February 2001, “The Bank” foreclosed on some of the lots in the Parkses’ subdivision development; the lots had been mortgaged to The Bank by Judie Faye Parks and Jimmy Clyde Parks. Thereafter, the Parkses filed a motion to add The Bank as an indispensable party to the Peaks’ case; the trial court granted the Parkses’ motion. In May 2001, a few days before trial, Judie Faye Parks “and the other similarly situated defendants” filed a cross-claim against The Bank based upon their discovery of an alleged agreement between the Peaks and The Bank regarding corrective measures that might be taken on the lots owned by The Bank and regarding the injunctive relief that the Peaks had requested against the Parkses. In response to the Parkses’ cross-claim, the Peaks filed a motion to sever and to continue the trial of their claim for injunc-tive relief and the Parkses’ cross-claim so that the trial of their claims for damages could proceed as scheduled. After holding a hearing on the Peaks’ motion to sever and to continue, the trial court continued the trial of the Peaks’ claim for injunctive relief and the Parkses’ cross-claim. It also ordered the parties to proceed with the trial of the Peaks’ claims for damages. However, the trial court stated that it would not allow the Peaks to present any evidence of “a continuing nuisance because I think it would be extremely prejudicial to [the Parkses’] ease.”

In response to the trial court’s ruling, the Peaks stated that they would waive any claim for damages arising after February 27, 2001 (the approximate date that The Bank foreclosed on some of the lots in the Parkses’ subdivision development and several weeks after the Peaks had filed their amended and restated complaint). However, the Parkses argued:

‘Well, I think the caselaw is clear that ... they should be restricted from any time after October 8, 1997, when the claims were filed and they could have filed — they should have done something about it when the claim for injunctive relief was filed. If there was any problem, any continuing problem, they could have come to Your Honor then. I think the caselaw is clear that if they did not do that, they should be restricted to that date.”

The Peaks then argued that the Parkses had continued to work on the subdivision excavation after the Peaks had filed their complaint and that the Peaks “were hoping [the Parkses] were going to do something about it, but with every rain [the Peaks] continued to have damages.... [The Peaks] didn’t know what was going to happen up there.” Thereafter the following discussion occurred:

“THE COURT: Well, I think the issue is whether you can present evidence before this jury as to any damages that occurred after October 8, 1997 in the state of the case as it is now.
“[PEAKS’ COUNSEL]: I don’t know if a claim for damages has anything to do with whether or not we got injunctive relief or should have—
“THE COURT: Well, if you are alleging that there was a continuing nuisance occurring and you are asking for injunc-tive relief, if the claim for injunctive relief is not addressed then from that point on there is no mitigation of damages. I mean, the damages are occurring without any steps taken to stop it.
“[PEAKS’ COUNSEL]: Well, like I said, they knew there were damages to our property and they were working on it, but they continued to do it wrong. And our civil engineer is going to testify that while they did finally install some BMPs, they did not maintain them which again started damages again.
“THE COURT: Well, if you are ready on the nuisance issue then the jury can certainly consider damages up to October 8, 1997 on that particular theory.
“[PEAKS’ COUNSEL]: We will withdraw our nuisance claim then.”

A three-day jury, trial was held on the Peaks’ claims. At trial, based upon the objections of the Parkses, the trial court refused to allow the Peaks to present evidence of damage that occurred after October 8, 1997. The Peaks argued that they should be allowed to offer evidence of damages that occurred after October 8, 1997, because their claim for injunctive relief had been continued and because they had withdrawn their nuisance claim. After a lengthy discussion regarding damages and the distinctions between an abatable nuisance and a permanent nuisance, the trial court denied the Peaks’ request.

At the close of the Peaks’ ease, the Parkses requested a judgment as a matter of law (“JML”) on all of the Peaks’ claims for damages. The trial court granted the Parkses’ motion for a JML on the Peaks’ wantonness claim, and the Peaks withdrew their striet-liability claim. However, the trial court denied the Parkses’ motion for a JML on the Peaks’ remaining claims, i.e., their claims based upon negligence, trespass, and violation of common-law riparian rights; it instructed the jury regarding those remaining claims and regarding compensatory and punitive damages.

The jury returned a verdict in favor of the Peaks and against the Parkses and awarded the Peaks $2,500 in compensatory damages and $500 in punitive damages. The trial court entered a judgment adopting the jury’s verdict. Although the Peaks’ injunction claim remained pending, the Peaks filed a motion for a new trial based, in part, on the alleged inadequacy of the damages awards, on the trial court’s ruling excluding evidence of damage occurring after October 8, 1997, and on the trial court’s granting of a JML against the Peaks on their wantonness claim. The trial court denied the Peaks’ motion for a new trial. The Peaks then filed a motion requesting that the trial court certify the judgment as a final judgment, pursuant to Rule 54(b), Ala. R. Civ. P. The trial court certified the judgment as a final judgment and the Peaks appealed.

The Peaks first argue that the trial court erred by refusing to permit them to introduce evidence of alleged damage to their property that occurred after October 8, 1997, the date that they filed their complaint. The Parkses’ position on this issue, both at trial and on appeal, is based on their contention that all of the Peaks’ claims essentially arise from an abatable nuisance. The Parkses argue that, where an abatable nuisance results in successive damage events to the plaintiff, each damage event represents a separate cause of action for which a new limitations period begins to run under the applicable statute of limitations. See Reichert v. City of Mobile, 776 So.2d 761 (Ala.2000); City of Birmingham v. LeBerte, 773 So.2d 440, 445 (Ala.2000); and Sloss-Sheffield Steel & Iron Co. v. Mitchell, 161 Ala. 278, 49 So. 851 (1909). The Parkses argue that, therefore, the Peaks should have been required to file a separate complaint for the damage to their land that occurred after October 8,1997.

The issue before the trial court, and-the issue that we must decide, is whether the Peaks, who filed their original complaint within the applicable limitations period, should have been precluded from offering evidence of subsequent damage that arose out of the same underlying conditions that were pleaded in their original complaint, particularly in light of the fact that they amended and restated their complaint to request additional damages without an objection by the Parkses. We conclude that the trial court erred as a matter of law by precluding the Peaks frorp offering evidence of damage to their land that occurred after they filed their initial complaint.

Reichert, City of .Birmingham, and Sloss-Sheffield speak to the issue whether the plaintiffs in those cases had timely filed lawsuits to recover damages for particular losses that had occurred in the past, that is, before the period covered by the applicable statute of limitations. To apply the rule applied in'those cases to losses that are suffered ujier a timely complaint has been filed would be to “turn the rule on its head.” Alabama Power Co. v. Cummings, 466 So.2d 99, 102 (Ala.1985) (refusing to apply Sloss-Sheffield, a ease decided under the common-law rules, of pleading in effect prior to the adoption of notice pleading and the liberal joinder of claims in the Alabama Rules of Civil Procedure, in a manner that would prevent the plaintiff from proving damages that occurred subsequent to the timely filing of a complaint, when the plaintiff had amended her complaint to include such damages before trial without objection); see generally Alabama Power Co. v. Gielle, 373 So.2d 851, 854 (Ala.Civ.App.1979) (noting that, in the context of a continuing trespass, a plaintiff may recover damages that occur before the filing of the complaint or subsequent thereto, even though a continuing trespass involves successive causes of action). It would also be contrary to the purpose of notice pleading, see “Committee Comments on 1973 Adoption,” Rule 8, Ala. R. Civ. P., and our rules governing the liberal joinder of claims, see Rule 18, Ala. R. Civ. P.; Hill v. Hill, 523 So.2d 425, 427 (Ala. Civ.App.1987), and it would require a multiplicity of lawsuits when one would likely suffice.

In Reichert v. City of Mobile, 776 So.2d 761, the trial court entered a summary judgment against the plaintiffs as to certain claims alleging negligent maintenance by the defendant of its property that resulted in the flooding of the plaintiffs’ land. The Supreme Court reversed the trial court’s judgment, saving the plaintiffs’ claims from the operation of the statute of limitations for the very reason that the claim “would not be barred by the statute of limitations, because each flood event is an abatable nuisance and gives rise to a separate cause of action.” 776 So.2d at 765 (emphasis added). The Supreme Court concluded its analysis of the issue by noting: “To uphold the judgment in favor of the [defendant] would be unfair to the plaintiffs, given the fact that the plaintiffs’ properties have continued to flood even after they filed their complaint." Id. (emphasis added). The same can be said in the present case.

Based on the foregoing, we conclude that the trial court erred as a matter of law by not allowing the Peaks to present evidence of damage caused by surface-water runoff that occurred after October 8, 1997.

The Peaks also argue that the trial court erred by granting the Parkses’ motion for a JML on their wantonness claim. A JML is proper if “during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evi-dentiary basis for a reasonable jury to find for that party on that issue.” Rule 50(a), Ala. R. Civ. P.

“When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11, 1987, the nonmovant must present ‘substantial evidence’ in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996). Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).”

Delchamps, Inc. v. Bryant, 738 So.2d 824, 830-31 (Ala.1999).

Section 6-ll-20(b)(3), Ala.Code 1975, defines “wantonness” as “[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others.” In Alfa Mutual Insurance Co. v. Roush, 723 So.2d 1250 (Ala.1998), our Supreme Court stated:

“ Wantonness’ has been defined by this Court as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result. Bozeman v. Central Bank of the South, 646 So.2d 601 (Ala.1994). To prove wantonness, it is not essential to prove that the defendant entertained a specific design or intent to injure the plaintiff. Joseph v. Staggs, 519 So.2d 952 (Ala.1988).”

723 So.2d at 1256.

The Peaks offered evidence that neighboring landowners had complained to Jimmy DeWayne Parks, who was the vice president of Parks & Son Excavating, Inc., and who had performed much of the excavation work on the property, about the potential for damage to their properties during the excavation process. The Peaks also introduced evidence that Jimmy De-Wayne Parks ignored the neighbors’ complaints and stated that he would do as he pleased with the property. Further, the Peaks introduced evidence that Jimmy Clyde Parks and Judie Faye Parks authorized the work performed by Jimmy De-Wayne Parks on their property and that Jimmy DeWayne Parks attempted to perform most of the subdivision excavation himself, although he had “never done this kind of work before” and admittedly had received no advice regarding the appropriate installation of BMPs to control surface-water runoff. The Peaks also introduced evidence that, after Jimmy DeWayne Parks was made aware of the surface-water runoff that his excavation work had caused, he repeatedly failed to implement appropriate and sufficient BMPs to control the runoff and, as a result, the Peaks suffered damage.

We have carefully reviewed the record. Viewing all of the evidence in the light most favorable to the Peaks, including the evidence discussed above, and entertaining such reasonable inferences as the jury would have been free to draw, we conclude that the Peaks presented substantial evidence that the Parkses were aware that their failure to implement appropriate BMPs during their subdivision excavation activity would likely result in injury. We further note that the trial court prevented the Peaks from introducing evidence of some of the Parkses’ actions that were taken after October 8, 1997, by its ruling on the Peaks’ right to introduce evidence of damages. Accordingly, the trial court erred by dismissing the Peaks’ wantonness claim.

In light of the foregoing, it is unnecessary for us to address the Peaks’ argument regarding the alleged inadequacy of the damages awards. The trial court’s judgment is reversed, and the cause is remanded for a new trial on the Peaks’ claims of negligence, trespass, wantonness, and the violation . of common-law riparian rights.

REVERSED AND REMANDED.

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

THOMPSON, J., concurs in the result.

PITTMAN, J., concurs in part and concurs in the result in part.

PITTMAN, Judge,

concurring in part and concurring in the result in part.

I concur in the main opinion insofar as it reverses the trial court’s judgment on the basis that the trial court erred in preventing the Peaks from introducing evidence of damage that occurred after October 8, 1997, the date the Peaks filed their original complaint. As to the Peaks’ wantonness claim, I concur in the result to reverse the judgment as a matter of law.

      . The Peaks' complaint also named as defendants Jimmy & DeWayne, Inc., Heniy M. Taylor, and various fictitiously named parties. In the Peaks' amended and restated complaint, they dismissed Jimmy & DeWayne, Inc., Henry M. Taylor, and all fictitiously named parties.

      . The Parkses also argue that the Peaks did not make an offer of proof regarding the damage that allegedly occurred after October 8, 1997. However, an offer of proof is not necessary where the court has ruled broadly that evidence supporting a particular fact which the party is seeking to establish is inadmissible. See Killingsworth v. Killingsworth, 283 Ala. 345, 354, 217 So.2d 57, 65-66 (1968).

      . Indeed, in the present case, the parties prepared for trial by conducting discovery that included the depositions of witnesses regarding each flood event at issue, i.e., those that occurred both before and after the filing of the complaint.

      . We also note that the Peaks did not allege that all their damages arose from an abatable nuisance or a recurring wrongful condition. Instead, they alleged and introduced evidence that the Parkses had also changed the slope of their property, had cleared the property of vegetation, and had made other permanent changes that resulted in the wrongful diversion of water onto the Peaks’ property and that the Parkses had repeatedly been unable to remedy that problem. In other words, some of the Peaks’ alleged damages arose out of permanent changes created by the Parkses' excavation and those changes continued to cause damage even after the Parkses had attempted to abate the problem; the fact that the Parkses might also have negligently or wrongfully failed to abate those or other problems that they created did not convert the Peaks' entire action into one complaining only of an abatable nuisance. See City of Birmingham, 773 So.2d at 445 (noting that the negligent construction of a drainage system invokes the rules applicable to a permanent nuisance, but negligent maintenance of a drainage system invokes the rules applicable to an abatable nuisance); Bradley & McWhirter, Inc. v. Conklan, 278 Ala. 395, 397, 178 So.2d 551, 553 (1965) (holding that damage caused by recurrent flooding from a negligently constructed drainage system constituted a single cause of action).


author: LYONS, Justice.

text:
    Ex parte Jimmy Clyde PARKS, Judie Faye Parks, Jimmy DeWayne Parks, and Parks & Son Excavating, Inc. (In re William C. Peak and Joyce S. Peak v. Jimmy Clyde Parks, Judie Faye Parks, Jimmy DeWayne Parks, and Parks & Son Excavating, Inc.).
    1030444.
    Supreme Court of Alabama.
    Feb. 13, 2004.
    J. Mitchell Frost, Jr., and Neal D. Moore III of Ferguson, Frost & Dodson, Birmingham, for petitioners.
   LYONS, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

HOUSTON, SEE, JOHNSTONE, and WOODALL, JJ., concur.