author: LYONS, Justice. STUART, Justice BOLIN, Justice

text:
    MOBILE PRESS REGISTER, INC. v. James H. LACKEY, presiding judge of the Mobile Municipal Court, and Pete Pederson, court administrator for the Mobile Municipal Court. James H. Lackey, presiding judge of the Mobile Municipal Court, and Pete Pederson, court administrator for the Mobile Municipal Court v. Mobile Press Register, Inc.
    1041260 and 1041371.
    Supreme Court of Alabama.
    March 10, 2006.

      Edward S. Sledge III, Archibald T. Reeves IV, and Heather R. Guidry of McDowell, Knight, Roedder & Sledge, L.L.C., Mobile, for appellant/cross-appel-lee Mobile Press Register, Inc.
    John L. Lawler and E. Ashton Hill III, City of Mobile Legal Department, for ap-pellees/cross-appellants James H. Lackey, presiding judge of the Mobile Municipal Court, and Pete Pederson, court administrator for the Mobile Municipal Court.
   LYONS, Justice.

These appeals present some difficult questions of first impression, requiring this Court to reconcile the statutorily recognized general principle of the public’s right to know about the affairs of government, § 36-12-40, Ala.Code 1975, with a statutorily created exception arguably applicable to records of judicial proceedings. See § 41-9-590 et seq., Ala.Code 1975.

I. Facts and Procedural History

At some time before February 2005, the Mobile Press Register, Inc. (“MPR”), requested the Mobile Municipal Court to produce its records pertaining to criminal charges filed against David Thomas, a public official in Mobile. A representative from the municipal court informed MPR that no such records existed. However, upon further investigation, the municipal court discovered that the records did exist, but that they had been what the parties describe as “expunged.” MPR requested access to all records that the Mobile Municipal Court had “expunged” since 1988, but the municipal court refused to give MPR access. MPR then sued the municipal court, naming as defendants James H. Lackey, the presiding judge of the Mobile Municipal Court, and Pete Ped-erson, its court administrator. MPR sought preliminary and permanent injunctions preventing the Mobile Municipal Court from expunging its records in the future and directing it to grant MPR access to all records that had been expunged since 1988. After MPR filed its complaint, the municipal court released its file on David Thomas to MPR. However, the municipal court continued to refuse MPR access to other expunged files.

After a hearing, the circuit court entered an order holding that the municipal court had no authority to expunge its records and entering a permanent injunction prohibiting the court from doing so in the future. However, the circuit court refused to order the municipal court to grant MPR access to previously expunged files, because MPR had not given a good reason for the circuit court to subject the municipal court to what the circuit, court described as an “extremely overbroad and cumbersome” process.

MPR has filed in this Court a motion to dismiss the cross-appeal filed by Lackey and Pederson (case no. 1041371) as untimely filed. MPR argues that the cross-appeal is untimely because, it says, the circuit court’s order was interlocutory rather than final. However, because MPR refers to the circuit court’s order as final in its brief and because the issues raised in the cross-appeal have been fully briefed, we treat the circuit court’s, order as final, and we deny MPR’s motion to dismiss the cross-appeal.

MPR appealed, arguing that the circuit court’s refusal to provide it access to the expunged records was inconsistent with the court’s holding that the municipal court had no authority to expunge those records. The municipal court cross-appealed, arguing that the circuit court erred in ruling that it had no authority to expunge its own records.

II. Standard of Review

“[A] permanent injunction is reviewed de novo.
“To be entitled to a permanent injunction, a plaintiff must demonstrate success on the merits, a substantial threat of irreparable injury if the injunction is not granted, that the threatened injury to the plaintiff outweighs the harm the injunction may cause the defendant, and that granting the injunction will not dis-serve the public interest.”

TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1241-42 (Ala.1999).

III. Analysis

The municipal court argues that the legislature provided for the expungement of criminal records by enacting § 41-9-590 et seq., Ala.Code 1975 (“the ACJIC Act”), which created the Alabama Criminal Justice Information Center (“the ACJIC”), a “system for the interstate and intrastate accumulation, storage, retrieval, analysis and dissemination of vital information relating to certain crimes, criminals and criminal activity....” §41-9-591, Ala. Code 1975.

A

The municipal court contends that § 41-9-625, Ala.Code 1975, evidences the legislature’s intent to facilitate the expungement of criminal records when an arrested individual is not convicted. Section 41-9-625 provides:

“All persons in this state in charge of law enforcement and correction agencies shall obtain or cause to be obtained the fingerprints according to the fingerprint system of identification established by the commission, full face and profile photographs, if photo equipment is available, and other identifying data of each person arrested for an offense of a type designated in Section 41-9-622, [Ala. Code 1975,] of all persons arrested or taken into custody as fugitives from justice and of all unidentified human corpses in their jurisdictions, but photographs need not be taken if it is known that photographs of the type listed taken within the previous year are on file. Fingerprints and other identifying data of persons arrested for offenses other than those designated in this article may be taken at the discretion of the agency concerned.
“If any person arrested or taken into custody is subsequently released without charge or cleared of the offense through criminal justice proceedings, such disposition shall be reported by all state, county and municipal criminal justice agencies to ACJIC within SO days of such action, and all such information shall be eliminated and removed.”

(Emphasis added.)

According to § 41-9-590, Ala.Code 1975, “criminal justice agencies” include “public agencies at all levels of government which perform as their principal function activities or planning for such activities relating to the identification, apprehension, prosecution, adjudication or rehabilitation of civil, traffic and criminal offenders.” (Emphasis added.)

This Court questions whether the legislature clearly intended the ACJIC Act to regulate how courts manage their own records. For example, § 41-9-642, Ala. Code 1975, prohibits disclosure of “criminal histories” to entities that do not have the “need to know” or the “right to know” of those criminal histories. Of course, judicial records have historically been considered public records. See, e.g., Ex parte Consolidated Publ’g Co., Inc., 601 So.2d 423, 426 (Ala.1992) (declining “to provide a detailed historical analysis of the progression of the cases involving the public’s and the press’s access to criminal proceedings,” and instead referring to cases that “illustrate the development of the law in this area”). Therefore, § 41-9-642 provides some evidence indicating that the legislature, when it promulgated the ACJIC Act, contemplated that the Act would regulate information that was not at that time considered to be public information, i.e., records other than judicial records.

We also note that 42 U.S.C. § 14616, an analogous federal statute, explicitly includes “courts” in its definition of “criminal justice agencies,” while the definition of that term in the ACJIC Act does not include courts. Further, § 41-9-645, Ala. Code 1975, which gives an individual the right to request that a criminal justice agency “purge, modify or supplement” his or her records, provides for judicial review of the agency’s decision on the individual’s request in the circuit court. If the definition of criminal justice agencies in § 41-9-590(1) includes a circuit court, then § 41-9-645 confers upon a petitioner the hollow right to ask the circuit court to review its prior adverse ruling. That the right of appeal under § 41-9-645 is to the circuit court is further evidence that the ACJIC Act was not intended to regulate court records.

Nevertheless, consistent with the municipal court’s contention on appeal, one might argue that a municipal court engages in “activities or planning for such activities relating to ... adjudication.” § 41-9-590(1). In other words, it is arguable that the reference, to agencies that engage in “activities or planning for such activities” includes the courts themselves and not simply those agencies discharging functions ancillary to, but separate from, the courts. However, we do not expressly answer that question here because it is unnecessary to the disposition of this case. This is so because, assuming without deciding that the ACJIC Act applies here, we conclude that it in no event countenances the actions of the municipal court in this proceeding.

Based on the assumption that the ACJIC Act applies, under § 41-9-625, “[i]f any person arrested or taken into custody is subsequently released without charge or cleared of the offense through criminal justice proceedings” in a municipal court, that court must report, directly or indirectly, such disposition to the ACJIC. As previously noted, once the information that the person has been released without charge or cleared is reported, the second paragraph of § 41-9-625 provides that “all such information shall be eliminated and removed.” (Emphasis added.) We conclude that “such information” refers to “fingerprints,” “full face and profile photographs,” and “other identifying data,” which are all mentioned in the preceding paragraph. See also § 41-9-623, Ala.Code 1975 (requiring “[a]ll criminal justice agencies within the state [to] submit to the ACJIC ... fingerprints, descriptions, photographs ... and other identifying data on [individuals arrested for certain crimes]”). While “other identifying data” is not defined, “the ejusdem generis principle of statutory construction [aids us in determining] the intent of the legislature. Under that principle, where general words follow specific words in a statute, the general words are construed to embrace only objects similar to those objects enumerated by the specific words.” Ex parte Cobb, 703 So.2d 871, 875 (Ala.1996). Therefore, we conclude that “other identifying data” included within the “such information” required to be “eliminated and removed” by § 41-9-625 is information that can be used to track down and identify persons in the manner that photographs and fingerprints are used. Examples include an individual’s blood type, height, weight, hair color, eye color, scars, physical deformities, etc.

Section 41-9-625 therefore does not authorize (assuming the ACJIC Act applies) the municipal court to expunge entire files. Here, the existence of, and thus all the information contained in, entire files on criminal defendants have been hidden from the public. Accordingly, § 41-9-625 does not support the municipal court’s position.

B.

Section 41-9-645, Ala.Code 1975, gives individuals believing their criminal records to be “inaccurate or incomplete” the right to request that the original agency having custody or control of those records purge, modify, or supplement those records, to the extent doing so would remedy the inaccuracy or incompleteness. Considering the import of the terms used in association with “purge” in § 41-9-645, i.e., “modify” and “supplement,” we construe “purge” to mean something less than complete expungement. See Strickland v. General Motors Acceptance Corp., 578 So.2d 1275, 1277 (Ala.1991) (citing “the maxim noscitur a sociis, i.e., the principle that the meaning of words may be indicated or controlled by those with which they are associated”). See also Nettles v. Lichtman, 228 Ala. 52, 56, 152 So. 450, 454 (1934) (“There is a well-known and ancient maxim, noscitur [a] sociis — the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it — broader in its scope than the kindred maxim, ejusdem generis, which has been given frequent application by this court.”). The term “purge” means: “to make free of something unwanted.” Merriam-Webster’s Collegiate Dictionary Í010 (11th ed.2003). In other words, if the ACJIC Act applies to court records, then a record that contains inaccurate or incomplete information may be purged of that information. In the instant case, the municipal court has admitted that it has not been purging, modifying, or supplementing records only to the extent needed to correct inaccuracy or incompleteness. Rather, it has simply been removing the existence of its records from public databases based on no set standard. The ACJIC Act, even if applicable, does not authorize such activity.

TV. The Legislature’s Prerogative

Whether citizens should be entitled to have their criminal arrest records expunged is a substantive matter involving policy considerations within the purview of the legislature, not this Court. Cf. § 12-15-103, Ala.Code 1975 (allowing for the sealing and destruction of juvenile court files). We take this opportunity to urge the legislature to address the policy of expunging the criminal records of adults and to clarify the applicability of the ACJIC Act to courts. It is of course the legislature’s prerogative to allow expungement, to reject it, or to refuse to address the issue at all. If the legislature chooses to allow expungement, we note that important considerations include whether to require notice to the State or other prosecuting agency of the expungement proceedings, along with an opportunity to object, and the right of parties to appeal the grant or denial of an expungement request, thereby giving finality to the determination. Further, what is the legal effect of an expungement? Is a person whose record is expunged entitled to state in a job application, without risk of making a false statement, that the expunged matters, such as an arrest, did not take place? We note that the legislatures of other states have provided clear guidelines for courts to follow in determining whether to expunge the criminal records of adults. See generally Kristin K. Henson, Comment, Can You Make This Go Away?: Alabama’s Inconsistent Approach To Expunging Criminal Records, 35 Cumb. L.Rev. 385 (2005).

V. Conclusion

We affirm the circuit court’s permanent injunction against future “expungement,” that is, removal of the existence of a criminal file from public access, by the municipal court. Although the circuit court found that MPR had not given a good reason as to why the municipal court should be required to submit to the “over-broad and cumbersome” process of allowing MPR access to the expunged records, at trial, the municipal court conceded that to produce the records would not actually be overly cumbersome. Finding no justification in law for the practices of the municipal court, we reverse the circuit court’s ruling insofar as it denies MPR access to the expunged records and remand the case for proceedings consistent with this opinion.

1041260 — REVERSED AND REMANDED.

1041371 — MOTION TO DISMISS DENIED; AFFIRMED.

NABERS, C.J., and SEE, HARWOOD, WOODALL, and PARKER, JJ., concur.

STUART, SMITH, and BOLIN, JJ., concur in the result.

STUART, Justice

(concurring in the result).

I concur in the result reached in the main opinion. As to Part III.A. of that opinion, I join Justice Bolin’s writing. With regard to Part IV of the opinion, I express no opinion because it is dicta. “Article III of the Alabama Constitution of 1901 creates the framework for the division of powers between the State’s legislative, executive, and judicial branches. Each branch within our tripartite governmental structure has distinct powers and responsibilities, and our Constitution demands that these powers and responsibilities never be shared.” Monroe v. Harco, Inc., 762 So.2d 828, 831 (Ala.2000). Part TV of the main opinion overlooks the legislature’s initial responsibility to weigh any benefit of the expungement of court records against the dangers of the loss of the check and balance on judicial power provided when criminal records are subject to public review and appears to advocate for expungement of court records by providing important considerations for expungement procedures. “Great care must be exercised by the courts not to usurp the functions of other departments of government. § 43, Constitution 1901.... Accordingly ... courts cannot and will not interfere with the discretion vested in other units or branches of government.” Finch v. State, 271 Ala. 499, 503, 124 So.2d 825, 829 (1960). It is not this Court’s responsibility to express an opinion on whether such legislation should be drafted.

SMITH and BOLIN, JJ., concur.

BOLIN, Justice

(concurring in the result).

I concur fully with the result reached by the main opinion. I write specially, however, to address that portion of Part III.A. of the opinion in which the Court expressly declines to answer the question as to whether the ACJIC Act applies to the expungement of any court records because, it reasons, answering that question is unnecessary to a resolution of this appeal. I would have chosen to address this issue, which was raised, briefed, and orally argued by the parties.

The main opinion is correct that in this proceeding it matters not whether the ACJIC Act is applicable, because, “assuming without deciding that the ACJIC Act applies here, we conclude that it in no event countenances the actions of the municipal court in this proceeding.” 938 So.2d at 402. However, the issue whether the actions of the municipal court might have been permissible had it attempted to comply with the ACJIC Act is still a viable one, and the ACJIC Act does not, by its own words, apply to courts and court files.

Although certainly not dispositive, it is noteworthy that the entirety of Chapter 9 of Title 41 of the Code of Alabama, in which the ACJIC Act is found, concerns “Boards and Commissions,” not courts. Article 23 of Chapter 9 contains the ACJIC Act, and the creation and functions of the Alabama Criminal Justice Information Center are established in § 41-9-591, Ala.Code 1975, which provides:

“There is hereby created and established an Alabama Criminal Justice Information Center Commission, which shall establish, develop and continue to operate a center and system for the interstate and intrastate accumulation, storage, retrieval, analysis and dissemination of vital information relating to certain crimes, criminals and criminal activity to be known as the Alabama Criminal Justice Information Center.”

(Emphasis added.) The legislature, in crafting the ACJIC Act, nowhere mentions “courts” or “court records” in this general establishment section, although it would have been easy to do so and would have removed all doubt had the legislature intended to include courts within the ACJIC Act. Rather, the ACJIC Act deals with a “system” for accumulating, storing, retrieving, analyzing, and disseminating “information.”

In discussing the definition of criminal justice agencies found in § 41-9-590(1), Ala.Code 1975, the main opinion recognizes that arguably the use in that definition of the term “adjudication” might bring courts, including municipal courts, within the purview of the ACJIC Act. The entirety of this definitional section, however, states:

“(1) Criminal Justice Agencies. Such term shall include those public agencies at all levels of government which perform as their principal function activities or planning for such activities relating to the identification, apprehension, prosecution, adjudication or rehabilitation of civil, traffic and criminal offenders.”

(Emphasis added.) Black’s Law Dictionary defines agency as “3. A governmental body with the authority to implement and administer particular legislation” and defines “state agency ” as “an executive or regulatory body of a state.” Black’s Law Dictionary 67-68 (8th ed.2004). These definitions fully support the concept of a governmental entity’s operating a system pertaining to criminal justice information, or, put another way, performing activities relating to adjudication. It does not, however, encompass a “court,” which, rather than dealing with “activities relating to ... adjudication,” concerns itself with dispute resolution — -the adjudicatory process itself.

Policy questions relating to the expungement of criminal records are for the legislature. The Alabama Legislature well knows how to draft legislation that effectively shows its intent to provide for the expungement of records and how to make it clear that such legislation applies to a court and not an “agency.” The same year the ACJIC Act was passed the legislature also passed the Juvenile Justice Act. In § 12-15-103 of the Juvenile Justice Act as codified, the legislature set out the procedure, prerequisites, and effects of both a “sealing order” and a “destruction order” concerning juvenile court files in great detail. § 12-15-103(g). It defies logic to presume that the legislature, in the same general legislative session, intended to in-elude courts and court files in such an oblique manner in the ACJIC Act as “agencies” whose activities “relate” to “adjudication,” when it used such explicit language in the Juvenile Justice Act passed almost simultaneously.

The main opinion does not argue that the ACJIC Act does in fact apply to courts, but only assumes arguendo that if it did, the Mobile Municipal Court has not complied with it. Indeed, the main opinion sets out several reasons that indicate that the ACJIC Act does not apply to courts, Most telling of those reasons is that process embodied in § 41-9-645, which allows an individual to request that inaccurate or incomplete information he purged, modified, or supplemented by the original agency having custody or control of the “detail records.” The ability of an individual to pursue this process of having inaccurate or incomplete information purged, modified, or supplemented cannot reasonably or rationally be compared to a procedure for expunging of a complete court file or court record. The second paragraph of § 41-9-645 further states:

“Should the agency decline to so act or should the individual believe the agency’s decision to be otherwise unsatisfactory, the individual or his attorney may within 30 days of such decision enter an appeal to the circuit court of the county of his residence or to the circuit court in the county where such agency exists.... ”

Certainly, the distinction between an agency’s denial and an appeal to the circuit court from that denial belies any notion that the latter is included in the former. The main opinion correctly points out that this right of appeal would be a “hollow right,” because a circuit court would be reviewing its own, or another circuit court’s, decision.

I would go one step further than the main opinion and affirmatively state that the ACJIC Act is not applicable to the expungement of court records.

I also join Justice Stuart’s special writing insofar as Part IV is concerned.

STUART and SMITH, JJ., concur.

      . The files MPR is seeking are kept segregated from other files but have not been destroyed. However, all indication of their existence has been removed from public record. “Expunge” is defined in Black’s Law Dictionary 621 (8th ed.1999) as "[t]o erase or destroy.” “Expungement of record” is defined as "[t]he removal of a conviction (esp. for a first offense) from a person's criminal record.” Black's at 621. "Sealing of records” is defined as "[t]he act or practice of officially preventing access to particular (esp. juvenile-criminal) records, in the absence of a court order.” Black’s at 1377. The records involved in this case have not been "expunged”; rather, they have been sealed. In practical effect, however, the records have been expunged because, although they have not been physically destroyed, all indication of their existence has been removed from public record. Therefore, for purposes of this appeal we treat the records as expunged.

      . Merriam-Webster’s Collegiate Dictionary 443 (11th ed.2003) recognizes "expunction,” not "expungement,” as the noun form. However, Black’s Law Dictionary refers to expungement as an alternative noun form. Black’s at 621. Hence, we use the term "expungement” in ■this opinion.

      . Section 41-9-645 does not expressly refer to "criminal records”; rather, the first paragraph of § 41-9-645 refers to "such information.” We assume that “such information” means criminal records, which are dealt with in § 41-9-643, Ala.Code 1975, the section that immediately preceded § 41-9-645 when those sections were originally adopted.

      . Act no. 872, Ala. Acts 1975 (approved October 7, 1975).

      . Act no. 1205, Ala. Acts 1975 (approved October 10, 1975).

      . Section 12-15-103 provides as follows:
      "(a) On motion of the part of a person who has been the subject of a delinquency petition or on the court's own motion, the court shall vacate its order and findings and order the sealing of the legal and social files and records of the court, probation services and of any other agency in the case if it finds that:
      "(1) Two years have elapsed since the final discharge of the person from legal custody or supervision or two years after the entry of any other court order not involving custody or supervision; and
      "(2) He has not been convicted of a felony or misdemeanor involving moral turpitude or adjudicated delinquent prior to the filing of the motion and no proceeding is pending seeking such conviction or adjudication.
      "(b) The motion and the order may include the files and records specified in Section 12-15-100.
      "(c) Reasonable notice of the motion shall be given to:
      "(1) The prosecutor;
      "(2) The authority granting the discharge if the final discharge was from an institution, parole or probation; and
      "(3) The law enforcement officers, department and central depository having custody of the files and records specified in Section 12-15-100 and included in the motion.
      "(d) Upon the entry of the order, the proceedings in the case shall be treated as if they never occurred and all index references shall be deleted and the court and law enforcement officers and departments shall reply and the person may reply to any inquiry that no record exists with respect to such person. Inspection of the files and records included in the order may thereafter be permitted by the court only upon motion by the person who is the subject of such records and only to those persons named in the motion; provided, however, that the court in its discretion may by special order in an individual case permit inspection by or release of information in the records to any clinic, hospital or agency which has the person under care.
      "(e) Any adjudication of delinquency or conviction of a felony or a crime involving moral turpitude subsequent to sealing shall have the effect of nullifying the sealing order.
      "(f) A person who has been the subject of a delinquency petition and has met the conditions stipulated in subdivision (2) of subsection (a) of this section may, five years after reaching the age of majority, file a motion requesting the destruction of all records pertaining to his case. If the court grants the motion, copies of the order shall be sent to all offices or agencies that are repositories of such records and all such offices and agencies shall comply with the order.
      "(g) Upon the entry of a sealing order or a destruction order, all references including arrest, complaint, referrals, petitions, reports and orders shall be removed from all agency, official and institutional files and sealed or destroyed as aforesaid and a finding of delinquency shall be deemed never to have occurred. No child who has been the subject of such a sealing or destruction order shall be deemed to have been arrested ab initio within the meaning of the general statutes with respect to proceedings so sealed or destroyed and, in response to any inquiry or on any application or in any proceeding, the person may state that he has never been arrested, taken into custody, committed or adjudicated a delinquent with regard to the proceedings so sealed or destroyed.
      "(h) A person who has been the subject of a delinquency petition shall be notified of his rights under subsections (a) and (f) of this section at the time of his final discharge.”


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    CITY OF MOBILE v. Barbara TAYLOR and Dorothy Walker.
    2021006.
    Court of Civil Appeals of Alabama.
    June 17, 2005.
    Certiorari Denied March 10, 2006 Alabama Supreme Court 1041522.

      Daryl A. Atchison of Atchison, Crosby, Saad & Beebe, Mobile, for appellant.
    John W. Parker and John R. Parker, Mobile, for appellees.
   MURDOCK, Judge.

The City of Mobile appeals from a judgment entered on jury verdicts in favor of Barbara Taylor and Dorothy Walker (hereinafter collectively referred to as “the plaintiffs”) and against the City for its alleged negligence in maintaining the City’s storm-water drainage system. The only issues in this appeal relate to the awards of damages for mental anguish; liability and the amount of the property-damage awards are not challenged.

The plaintiffs sued the City, alleging that their houses had been subjected to repeated flooding because of the City’s storm-water drainage system. The complaint referenced a flood that had occurred on March 13, 1999. Before trial, however, the plaintiffs amended their complaint to allege additional flood events that occurred in March 2000 and December 2002. The only theory pursued by the plaintiffs at trial was negligence by the City in maintaining the storm-water drainage system.

The City filed a motion for a judgment as a matter of law (“JML”) at the close of the plaintiffs’ evidence, arguing, among other things, that there was insufficient evidence that the plaintiffs were entitled to damages for mental anguish; that motion was denied. The City again moved for a JML on this ground at the close of all the evidence.

At the charge conference, the City requested three jury instructions specifically directed to the issue of compensatory damages for mental anguish in a negligence action. The substance of two of those proposed instructions was included in the court’s charge to the jury; the trial court refused to give the other proposed instruction.

The jury returned verdicts in favor of both plaintiffs. The jury awarded Walker $42,565, of which $25,000 was designated as damages for mental anguish. The jury awarded Taylor $35,450, of which $25,000 was designated as damages for mental anguish. The City filed a timely motion for a new trial and/or a remittitur, which was denied. The City appealed to the Alabama Supreme Court; that Court transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7.

On appeal, the City argues, among other things, that its motions for a JML should have been granted because there was insufficient evidence to justify the submission to the jury of the question of the award of mental-anguish damages and that the trial court erred by refusing to give all three of the jury charges it had requested with respect to damages for mental anguish.

With respect to the City’s challenge to the trial court’s denial of the City’s motions for a JML, this court reviews the trial court’s action using the same standard used by the trial court in initially granting or denying the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the issue is whether the nonmovant 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). 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). In reviewing a ruling on a motion for a JML, this court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Motion Indus., Inc. v. Pate, 678 So.2d 724 (Ala.1996). Our review of the evidence, which follows, is made consistent with this standard.

The plaintiffs are older women whose houses are located adjacent to each other at the end of a cul-de-sac in Mobile. Taylor is 64 years old and lives alone. Walker is 58 years old and lives with an adult daughter and a teenage child. Their houses and lots have historically been subject to flooding.

This case involves three discrete flood events — one in March 1999, one in March 2000, and one in December 2002. In all three floods, the waters rose rapidly during a heavy rain, allegedly because of clogged storm drains. After two to four hours of steady rains, the waters would crest at a level that was approximately “knee high” in the plaintiffs’ yards and would typically recede one to two hours after the crest. On at least one occasion, the waters entered both plaintiffs’ houses and “covered the carpet,” or put “water all through the house.” There is evidence that carpets and baseboards in both houses were damaged. On the other occasions, the waters reached the thresholds, but did not actually enter the living space, of the houses. As to all three occasions, the water was described as knee-deep in the yards and as swirling and flowing rapidly. Two of the floods occurred at night, and the other flood occurred during the daylight hours.

During all three floods, Walker was at home and did not leave her house because she was afraid of the water. Walker’s daughter was forced to walk through the flood waters in order to move Walker’s car up a hill out of the rising water.

On two occasions, Taylor left her house when the rains began, drove to her brother’s house, and did not return until the waters had subsided. She testified that she generally leaves her house in such situations because she is afraid of the water. During the December 2002 flood, however, Taylor remained at home and was forced to walk through knee-deep water in the dark in order to move her car.

Neither plaintiff suffered physical injury as a result of the floods. Both plaintiffs gave testimony, however, from which the jury could infer that the flooding problem at issue resulted in the plaintiffs’ losing sleep whenever rain was threatened, the plaintiffs’ needing to remain vigilant during rains, a possibility that snakes or other animals might be in the water and enter the plaintiffs’ houses, and a risk that the plaintiffs might fall in the water and be injured or drown if it became necessary for any reason to leave their houses. Each plaintiff also testified as to a fear of electrocution caused by the flood water; each plaintiff testified that she would normally cut the main electrical circuits to her house or turn off all lights in her house during heavy rains to avoid risks of electrical shock.

In negligence actions in which the plaintiff seeks compensatory damages for emotional distress, Alabama now follows the “zone of danger” test, “which limits recovery of mental anguish damages ‘to those plaintiffs who sustain a physical injury as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct.’ ” Wal-Mart Stores, Inc. v. Bowers, 752 So.2d 1201, 1203 (Ala.1999) (quoting AALAR, Ltd., Inc. v. Francis, 716 So.2d 1141, 1147 (Ala.1998)). See also Ex parte Grand Manor, Inc., 778 So.2d 173 (Ala.2000) (quoting with approval the above-stated rule from Bowers and AALAR). As the Supreme Court noted in White Consolidated Industries, Inc. v. Wilkerson, 737 So.2d 447, 449 (Ala.1999), “pursuant to Alabama’s ‘zone of danger’ rule, plaintiffs not suffering physical injury as a result of ... negligent conduct can recover for emotional injury only if they were ‘placed in immediate risk of physical harm by that conduct.’ ” 737 So.2d at 449 (quoting AALAR, 716 So.2d at 1147).

AALAR involved a car-rental company that negligently rented a car that continued to be erroneously listed as stolen on the National Crime Information Center (“NCIC”) database. C.J. Francis, one of two authorized drivers under the rental contract, was confronted by police one night because the car appeared on the NCIC database. During questioning, C.J. Francis attempted to get the rental-car papers out of the glove compartment and one of the police officers pulled a gun on him. His mother, F.N. Francis, also an authorized driver under the rental contract, was inside the house when the gun was pulled. Neither plaintiff suffered any physical injury.

The Supreme Court held that F.N. Francis was not entitled to recover damages for mental anguish because she was outside the “zone of danger” and was never physically threatened or at risk of physical injury. On the other hand, the Court held that C.J. Francis was entitled to present his mental-anguish claim to the jury because there was substantial evidence that he was in the “zone of danger” and feared for his personal safety.

The AALAR Court also explained that whether C.J. Francis would be allowed to recover would depend on the presence of two additional elements, namely, “whether it was reasonably foreseeable to AALAR that C.J. Francis would be placed at risk of physical injury and whether he, in fact, suffered emotional distress” as a result of AALAR’s breach of its duty of care not to put Francis at risk of physical harm. AALAR, 716 So.2d at 1147 (also explaining that Taylor v. Baptist Medical Center, Inc., 400 So.2d 369 (Ala.1981), and Flagstar Enterprises, Inc. v. Davis, 709 So.2d 1132 (Ala.1997), stand for the proposition that the risk of physical injury from the defendant’s tortious conduct must be reasonably foreseeable and that the plaintiff must suffer emotional distress as a result of that conduct). As the Supreme Court reiterated in Grand Manor, “in order for a plaintiff to recover for emotional distress, he must show not only that ‘it was reasonably foreseeable to [the defendant] that [the plaintiff] would be placed at risk of physical injury’ but also that ‘he, in fact, suffered emotional distress.’ ” Grand Manor, 778 So.2d at 179 (quoting AALAR, 716 So.2d at 1147).

As noted, the City argues that the trial court erred by not granting its motions for a JML and by refusing to give all three of the charges it requested as to mental-anguish damages. More specifically, the City takes the positions that there was not substantial evidence that the flooding at issue placed the plaintiffs in an immediate risk of physical harm, i.e., a “zone of danger,” and that the trial court erred by refusing to instruct the jury that it could only award compensatory damages for mental anguish if a plaintiff had been placed in immediate risk of physical harm. We cannot agree with the City as to the former argument. Viewing the evidence in the light most favorable to the plaintiffs, and considering the reasonable inferences the jury would be free to draw therefrom, we must conclude that there was substantial evidence to justify submitting to the jury the question whether the plaintiffs were placed in a zone of danger. We do agree with the City’s second argument, however, namely, that the trial court erred by refusing to give the omitted jury instruction. Our discussion below is limited to this latter issue.

The trial court began its instructions to the jury regarding mental anguish by giving an instruction patterned largely after Alabama Pattern Jury Instruction 11.05. That charge was as follows:

“The law has no fixed monetary standard to compensate for mental anguish. This element of damage is left to your good, sound judgment and discretion as to what amount would reasonably and fairly compensate one or the other, or each Plaintiff ... for such mental anguish as you find from the evidence such Plaintiff did suffer.
“If you are reasonably satisfied from the evidence that any Plaintiff has undergone or will undergo mental anguish as a proximate result of the injury in question, you should award a sum which will reasonably and fairly compensate such Plaintiff for such mental anguish already suffered by her, and for any mental anguish which you are reasonably satisfied from the evidence that she is reasonably certain to suffer in the future.”

After giving the aforesaid instruction, the trial court gave to the jury two of the three additional charges requested by the City with respect to the award of mental-anguish damages in a negligence case. Those charges were given together as follows:

“A Plaintiff is not permitted to recover mental anguish damages based on a claim of simple negligence where the negligent act or omission results in mere injury to property.
“In order for a Plaintiff in this case to recover for emotional distress, that Plaintiff must show not only that it was reasonably foreseeable to the defendant, City of Mobile, that she would be placed at risk of physical injury, but also that she, in fact, suffered emotional distress.”

The trial court refused, however, to give a third charge requested by the City. That charge, the City’s requested “Charge No. 8,” reads as follows:

“In those lawsuits in Alabama courts where negligence is claimed, the ‘zone of danger’ test applies which limits reeov-ery of mental anguish damages ‘to those persons who sustained a physical injury as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct.’ ”

It is the duty of the trial judge “ ‘to instruct the jurors fully and correctly on the applicable law of the case, and to guide, direct and assist them toward an intelligent understanding of the legal and factual issues_’” Grayco Res., Inc. v. Poole, 500 So.2d 1030, 1033 (Ala.1986). “[A] party is entitled to have his theory of the case ... presented to the jury by proper instructions, ... and the court’s failure to give those instructions is reversible error.” Alabama Farm Bureau Mut. Ins. Serv., Inc. v. Jericho Plantation, Inc., 481 So.2d 343, 344 (Ala.1985).

In this case, refusal to give the requested instruction was erroneous because, as the City argues, the trial court failed to provide the jury with the complete “framework” of legal principles necessary for a determination of whether compensatory damages for mental anguish could appropriately be awarded. The entire charge on mental anguish allowed the jury to award mental-anguish damages without a finding that the plaintiffs were actually in a “zone of danger.” The charge required the jury to find (1) that it was foreseeable that the plaintiffs would be at risk of physical injury, and (2) that they in fact suffered mental anguish. The instruction did not require the jury to make any determination as to whether the plaintiffs were actually “placed in immediate risk of physical harm” as a result of the defendant’s negligent conduct as prescribed by AALAR, 716 So.2d at 1147.

The trial judge refused to give the requested instruction because he concluded that whether the plaintiffs were actually in a zone of danger was a question of law for the judge. That is not a correct conclusion, at least where, as here, the facts are in dispute. It appears that the trial court was led astray by an analogy to those cases that hold that duty is a question of law for the court. See, e.g., State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834 (Ala.1999). However, an analogy to cases like Owen is not appropriate because the existence of an immediate risk of physical harm does not define the duty at issue, but instead is more in the nature of an element of damages in that, for policy reasons, it limits the circumstances in which the breach of duty can properly lead to an award of certain types of damages. See AALAR, 716 So.2d at 1145-47 (discussing, among other things, a practical concern over the ability to trace the “etiology of emotional disturbance”); see, generally, Richard N. Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm — A Comment on the Nature of Arbitrary Rules, 34 U. Fla. L.Rev. 477 (1982).

In light of the foregoing, we reverse the judgment of the trial court and remand the cause for a new trial as to the plaintiffs’ claims for compensatory damages for their alleged mental anguish.

REVERSED AND REMANDED WITH INSTRUCTIONS.

CRAWLEY, P.J., and THOMPSON, PITTMAN, and BRYAN, JJ., concur.

      . Compare, e.g., AALAR, supra; Carson v. City of Prichard, 709 So.2d 1199 (Ala.1998); Flagstar, supra; City of Mobile v. Jackson, 474 So.2d 644 (Ala.1985); and City of Mobile v. Lester, 804 So.2d 220 (Ala.Civ.App.2001).

      . AALAR makes a clear distinction between foreseeable risk of injury and immediate risk of injury. The mother in AALAR was foresee-ably at risk, but she did not actually face an immediate risk. Therefore, she could not recover for mental anguish, but her son could recover because the gun was actually pulled on him. See also Terrell v. R & A Mfg. Part

        ners, Ltd., 835 So.2d 216, 229-30 (Ala.Civ.App.2002) (plaintiff was foreseeably at risk, but never actually at risk); 38 Am.Jur.2d Fright, Shock, and Mental Disturbance § 25 (1999) ("Where a plaintiff does not suffer a contemporaneous physical injury, in some jurisdictions, he or she may still prevail on a negligent infliction of emotional distress claim if the plaintiff can prove that he or she [1] was placed in a zone of danger of imminent physical impact, [2] reasonably feared for his or her safety, and [3] as a consequence, suffered severe emotional distress.” (footnote omitted)).


author: PITTMAN, Judge. MURDOCK, Judge, BRYAN, Judge,

text:
    James R. BRYANT and Beth Bryant v. Betty Jean ROBLEDO and Guadalupe Robledo.
    2030589.
    Court of Civil Appeals of Alabama.
    June 30, 2005.
    Certiorari Denied March 10, 2006 Alabama Supreme Court 1041584.

      Raymond C. Bryan, Anniston, for appellants.
    Shaun L. Quinlan, Anniston, for appel-lees.
   PITTMAN, Judge.

James R. Bryant and his wife, Beth Bryant, appeal from a summary judgment entered in favor of Betty Jean Robledo and her husband, Guadalupe Robledo, in the Robledos’ action to recover $15,000 plus interest.

On June 11, 2002, the Robledos filed a complaint in the Calhoun Circuit Court alleging that the Bryants had fraudulently obtained $15,000 from them on June 13, 2000, or, in the alternative, that the Bryants had breached a contract to perform legal services for the Robledos.

In July 2002, the Bryants filed a motion to dismiss. In that motion, they asserted that at all times pertinent to the pending action there existed no contract between the Robledos and the Bryants. The Bryants instead contended that Betty Jean Robledo’s father, Marshall Nave, had been a client of James Bryant for several years and asserted that the Robledos did not have standing to sue on behalf of Nave. The Robledos responded to the motion to dismiss by filing copies of correspondence that, they said, supported their contention that James Bryant had agreed to provide legal services for them. Because the parties submitted materials outside the pleadings in support of the dismissal motion, the trial court’s ruling was in the nature of a ruling on a summary judgment motion. See Rule 12(b), Ala. R. Civ. P., and Phillips v. AmSouth Bank, 833 So.2d 29, 31 (Ala.2002). In addition, the Robledos filed a motion requesting that all costs and fees of the action be paid by the Bryants, pursuant to § 12-19-270, AIa.Code 1975.

The trial court denied the Bryants’ motion to dismiss on September 10, 2002. The next day, the Robledos filed an amended complaint that added a conversion claim against the Bryants.

On October 4, 2002, attorney Raymond C. Bryan filed a notice of appearance on behalf of the Bryants. Twice, in early September and in early October 2002, the Robledos’ attorney prepared requests for admissions and purportedly served those requests upon counsel for the Bryants. On November 13, 2002, the Robledos filed a request for a default judgment based upon the failure of the Bryants to file an answer to the complaint as amended or to file answers to the requests for admissions. The trial court set the motion for a hearing on November 27, 2002. The day before the hearing, the Bryants’ attorney filed a consolidated answer to the complaint and the amended complaint in which the Bryants again generally denied that James Bryant had entered into a contract with the Robledos and again asserted that the Robledos did not have standing to sue for legal services that had been rendered for James Bryant’s alleged client, Nave. Additionally, the Bryants’ answer noted that Beth Bryant had filed objections to the requests for admissions on September 5, 2002. We note, however, that the record on appeal does not indicate that any such objections were filed.

On December 3, 2002, the trial court entered an order stating that because the Bryants had not responded in a timely manner to the Robledos’ requests for admissions, the matters set forth in the admission requests would be deemed admitted. The Robledos filed a motion requesting a summary judgment on December 6, 2002; eleven days later, the Bryants filed a response to the Robledos’ motion together with a cross-motion for a summary judgment in which the Bryants again asserted that no contract for legal services had existed between the Bryants and the Robledos and that the Robledos lacked standing to sue on behalf of Nave. Additionally, the Bryants filed affidavits and items of correspondence between the parties that, they said, conclusively established that the $15,000 in dispute was actually a loan from the Robledos to Nave to defray his legal fees during the time pertinent to their action. Moreover, the Bryants asserted that the Robledos had asked James Bryant to represent Nave in a conservatorship proceeding filed in Tennessee and that the Robledos had agreed to send $15,000 on behalf of Nave; based on those alleged facts, the Bryants contended that the Robledos’ assertion of fraud was totally unfounded. In an affidavit accompanying the Bryants’ summary-judgment motion, Beth Bryant stated that although she had worked for a time as a bookkeeper in her husband’s law firm, she was not a lawyer and had only had brief social contacts with the Robledos.

The trial court granted the Robledos’ summary-judgment motion in part and entered a partial judgment on September 18, 2003. In that judgment, the trial court ordered the Bryants to pay the Robledos $15,000 plus interest in the amount of $7,950.64 on the basis of fraud and breach of contract; the conversion claim was held over for a subsequent jury trial. On January 6, 2004, the Robledos filed a motion to dismiss the remaining count of conversion and requested that the trial court enter a Rule 54(b), Ala. R. Civ. P., order to establish the finality of the September 2003 judgment. Instead, the trial court entered an order on February 9, 2004, dismissing the case because “there are no remaining issues.”

On appeal, the Bryants assert that the trial court abused its discretion in entering a judgment in favor of the Robledos because, they say, (1) the Robledos did not have standing to sue the Bryants; (2) the requests for admissions were outside the scope of Rule 36, Ala. R. Civ. P.; (3) the Robledos’ summary-judgment motion was not supported by any affidavits or other legal evidence; and (4) the Bryants were entitled to a summary judgment in their favor because they proved that the Roble-dos could not recover under any legal theory.

Before turning to the consideration of the general legal arguments raised by the Bryants, we feel it is appropriate to address the Robledos’ claims against Beth Bryant separately. The admissions directed to Beth Bryant, regardless of whether they were correctly deemed admitted or not, all center on fraud and breach-of-contract issues. Those admissions may be summarized as follows: Beth Bryant worked as a bookkeeper or office manager for the law firm in which James Bryant was a partner, and she regularly had occasion to write checks on the law firm’s various accounts to pay monthly bills, salaries, and other expenses. During the time pertinent to the Robledos’ action, Beth Bryant wrote several checks to pay law-firm bills from the account containing the Robledos’ $15,000; at least $11,000 of that amount was paid to James Bryant, and that amount was eventually deposited into his personal checking, saving, or investment accounts; at least one of those accounts was also held in her name as his wife.

While those admissions might support a claim of conversion, they do not support either of the two claims upon which the partial summary judgment in favor of the Robledos was based: breach of contract or fraud. None of those admissions established the fact that Beth Bryant promised to provide legal services or entered into any negotiation or contract with the Roble-dos regarding her provision of legal services. In addition, none of those admissions indicates actions by Beth Bryant that constitute misrepresentation or fraudulent inducement that could form the basis of a viable fraud claim. At most, the requests for admissions relating to Beth Bryant may have tended to prove elements of the tort of conversion, but nothing more. Although the Robledos did assert such a claim, they voluntarily withdrew their conversion claim against the Bryants after the trial court granted their motion for a partial summary judgment on the breach-of-contract and fraud claims. Because no evidence was adduced indicating that Beth Bryant either entered into and breached a contract with the Robledos or obtained their money by fraud, the trial court erred in entering the summary judgment as to Beth Bryant’s liability. To that extent, we reverse the summary judgment and instruct the trial court to enter a judgment in favor of Beth Bryant as to those claims.

Initially, the Bryants contend that the Robledos did not have standing to sue alleging breach of contract and fraud in failing to perform legal services promised in exchange for the Robledos’ payment of $15,000. In Sessions v. Espy, 854 So.2d 515 (Ala.2002), our Supreme Court interpreted the Alabama Legal Services Liability Act (“the ALSLA”), § 6-5-570, et seq., Ala.Code 1975, to apply to all actions against legal-service providers that allege a breach of their duties in providing legal services; both common-law and statutory claims such as breach of a duty, negligence, misrepresentation, and the like are all subsumed into a single cause of action under the ALSLA. Sessions, 854 So.2d at 522. The allegations of fraud and breach of contract relating to services provided on behalf of Nave that are stated in the complaint fall within the purview of the ALS-LA. An essential element of a claim under the ALSLA is the existence of an attorney-client relationship. Brackin v. Trimmier Law Firm, 897 So.2d 207, 229 (Ala.2004). To create an attorney-client relationship, there must be an employment contract “ ‘either express or implied’ ” between an attorney and “‘the party for whom he purports to act or some one authorized to represent such party.’ ” Board of Commissioners of the Alabama State Bar v. Jones, 291 Ala. 371, 377, 281 So.2d 267, 273 (1973) (quoting 5 Am.Jur. Attorneys at Law § 29 (1936)).

The Robledos have not argued that they were third-party beneficiaries of a contract between Nave and James Bryant; rather, they have insisted that the electronic correspondence between themselves and Bryant constituted all of the elements of an offer, an acceptance, and the mutual assent to a contract for legal services. Moreover, the Robledos contend that the $15,000 they sent to Bryant was consideration for their contract with Bryant for legal services. The core problem with the Robledos’ assertion is that none of the admissions established or tended to establish the existence of a contract between Bryant and the Robledos. At best, the admissions tend to establish a legal-services contract between Bryant and Nave, with the Robledos only acting as an agent for Nave in making that contract and as a funding source for Nave.

Specifically, James Bryant admitted that he agreed to invoke the power of attorney signed by Nave in order to create a new corporation to handle Nave’s assets and to hire an auditor to verify Nave’s assets and debts; after verifying those financial figures, James Bryant expected to hire independent third-party administrators to monitor and administer Nave’s real-estate interests, investments, and savings and trust accounts. Additionally, James Bryant admitted that he agreed to serve as co-counsel to defend Nave in a conser-vatorship proceeding challenging Nave’s mental competency that had been filed in the state of Tennessee.

Because the admissions do not support the Robledos’ assertions of the existence of an express or implied contract directly between them and James Bryant, we conclude that the Robledos did not show standing to pursue a breach-of-contract claim alleging a failure to provide legal services to Nave. See Sessions and Brackin, supra; see also Robinson v. Benton, 842 So.2d 631, 636-37 (Ala.2002) (discussing Alabama law and declining to change the rule of law that bars an action for legal malpractice against a lawyer by a plaintiff for whom the lawyer has not undertaken a duty, either by contract or gratuitously).

However, the mere fact that James Bryant has not admitted that he had a direct contract with the Robledos does not demonstrate that the Bryants’ motion to dismiss was due to be granted in its entirety. Even if no direct contract between James Bryant and the Robledos existed, the Robledos also argued that James Bryant knew at the time that he requested payment of the $15,000 by the Robledos that Nave was incompetent and could not contract for legal representation. If the Robledos could produce evidence to support that contention, then a claim of fraudulent inducement would be shown and would preclude dismissal of the Robledos’ claim of fraud. See, e.g., Kinney v. Williams, 886 So.2d 753 (Ala.2003) (non-clients had standing to sue attorney alleging fraud and misrepresentation, even though they did not have a contractual relationship with the attorney). To that extent, then, the trial court did not err in denying the Bryants’ motion to dismiss on the basis that the Robledos lacked standing to assert their fraud claim and, subsequently, in granting the Robledos’ motion for a summary judgment.

The Bryants next assert that the trial court erred in ordering that, due to the Bryants’ failure to properly or to timely respond to the Robledos’ requests for admissions, those matters would be deemed admitted. See Rule 36(b), Ala. R. Civ. P. The Bryants rely primarily on the decision of Cole v. Cooley, 547 So.2d 1187 (Ala.Civ.App.1989), which was ostensibly predicated upon our Supreme Court’s holding in Irons v. Le Sueur, 487 So.2d 1352 (Ala.1986).

The underlying facts in Irons were quite unusual. In that case, the party propounding the admissions sought a negative answer but, instead, due probably to a typographical error, elicited an admission from the party’s opponent that negated the entire theory of the party’s action. Our Supreme Court held that the trial court was not required to view that admission as conclusively establishing a fact; instead, the Supreme court ruled that the trial court’s factual determinations, including one that had directly contradicted the admission and had been made following a review of all the evidence submitted, could be deemed correct based on the ore tenus standard. Irons, 487 So.2d at 1355. In making that decision, our Supreme Court noted that “[t]he purpose of Rule 36 is to expedite the trial and to relieve the parties of the cost of proving facts which will not be disputed and the truth of which can be ascertained by reasonable inquiry.” Id. In addition, our Supreme Court noted:

“[The response to a specific request for an admission] was simply evidence to be considered by the trial court. Where a case is tried ore tenus, as here, the trial court’s findings are presumed correct and its judgment ... will be reversed only if, after consideration of all the evidence and all reasonable inferences to be drawn therefrom, the judgment ... is found to be plainly and palpably wrong.”

Id.

This court purported to apply that rule in Cole v. Cooley, supra, where the trial court considered other evidence in reaching a conclusion that was inconsistent with a number of the matters that were subject to being deemed admitted based upon the prevailing party’s failure to respond to certain admission requests. Cole, 547 So.2d at 1188. Cole concluded by flatly stating that “[a] Rule 36 request for admissions may not be used by a party to conclusively establish a fact which is obviously in dispute.” Id.

On the other hand, the Robledos respond that they are entitled to a judgment in their favor by application of Rule 36(b), Ala. R. Civ. P., and on the authority of Thomson v. Bank, 506 So.2d 1012 (Ala.Civ.App.1987), which relied upon this court’s previous decision in Steadham v. United States Leasing Corp., 382 So.2d 563 (Ala.Civ.App.1980). In Thomson, we followed Evans v. Insurance Co. of North America, 349 So.2d 1099 (Ala.1977), in holding that the trial court had not abused its discretion in entering a judgment for a plaintiff based primarily on the admissions that had been deemed admitted. In Steadham, this court followed Evans and stated that a summary judgment or a directed verdict could be entered against a party that had failed to respond to requests for admissions; in both Steadham and Thomson, either no response or inadequate responses had been filed in an untimely manner. Thus, the dispositive legal issue that is presented is whether the rule stated in Cole is sound.

Under our law, failure to respond to a request for admissions in Alabama can have significant consequences. Pursuant to Rule 36(b), Ala. R. Civ. P., a matter is deemed admitted unless a written answer or objection is served within the applicable time frame; the duty to respond is not fulfilled by having previously responded to the complaint with a denial of every material allegation. See Breen v. Baldwin County Fed. Sav. Bank, 567 So.2d 1329 (Ala.1990). Thus, a total failure to respond to a request for admissions usually results in the matters specified in the request being deemed admitted. See Rule 36.1, Ala. R. Civ. P. In Crum v. SouthTrust Bank of Alabama, 598 So.2d 867 (Ala.1992), the appellant contended that an adverse summary judgment was improper because the bank had not demonstrated the absence of any genuine issues of material fact under Rule 56, Ala. R. Civ. P. Our Supreme Court determined that because the appellant had faded to respond to the bank’s requests for admissions and because the record contained substantial evidence of the facts and contained no evidence to the contrary, the bank was entitled to a summary judgment based primarily on the admissions. Crum, 598 So.2d at 871.

According to a long line of cases from our Supreme Court, any relief to be afforded from the consequences of tardy responses lies within the trial court’s discretion. See, e.g., Bradley v. Demos, 599 So.2d 1148 (Ala.1992); Green Tree Acceptance, Inc. v. Doan, 529 So.2d 201 (Ala.1988); and Hatton v. Chem-Haulers, Inc., 393 So.2d 950 (Ala.1981). After extensive research into the issue, we have been unable to locate a reported decision that has reversed a trial court’s judgment where late responses to admission requests were allowed or where unrefuted admissions were conclusively deemed as facts for purposes of trial or for purposes of deciding a summary-judgment motion or other dis-positive motion. In fact, the Cole decision, a case that Justice Lyons has characterized in his treatise as “questionable” (1 Champ Lyons, Jr., & Ally Windsor Howell, Jr., Alabama Rules of Civil Procedure Annotated 844 (4th ed.2004)), is the only reported Alabama case wherein a trial court allowed an affidavit or other evidentiary submission to defeat a summary-judgment motion that had been filed and was based on admissions that had previously been deemed admitted by the trial court.

Based on the above-cited legal principles, we conclude that the trial court did not abuse its discretion in basing its summary judgment as to James Bryant on the admissions deemed admitted in December 2002. To the extent that Cole stands for the proposition that admissions can never be used by a party to establish the absence of a fact issue, that case is overruled as inconsistent with Rule 36(b), Thomson, and Steadham.

Additionally, the Bryants assert that because the Robledos’ failed to respond to the Bryants’ summary-judgment motion with affidavits and other evidence, the trial court was required to accept their version of the facts. That contention fails to acknowledge that the Robledos had previously filed voluminous correspondence, court documents, and other evidence in opposition to the Bryants’ motion to dismiss and in support of their own summary-judgment motion. The Bryants’ reliance on the cases of Motors Insurance Co. v. Southern Bell Telephone Co., 431 So.2d 1308 (Ala.Civ.App.1983), and Sellers v. Doctors Medical Center, 402 So.2d 1021 (Ala.Civ.App.1981), is misplaced. Those cases stand for the proposition that a party may not rest on mere allegations in opposing a motion for a summary judgment. Obviously, the Robledos had already filed numerous documents in support of their claims, documents that were “on file” at the time of the summary judgment (see Rule 56(c)(3), Ala. R. Civ. P.), and the trial court properly entered a summary judgment against James Bryant based on that evidence.

The Bryants also assert that they were entitled to a summary judgment because they proved that the Robledos could not recover under any legal theory. Our standard of review with respect to the grant or denial of a summary-judgment motion is well-settled:

“A motion for summary judgment tests the sufficiency of the evidence. Such a motion is to be granted when the trial court determines that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The moving party bears the burden of negating the existence of a genuine issue of material fact. Furthermore, when a motion for summary judgment is made and supported as provided in Rule 56, [Ala. R. Civ. P.,] the nonmovant may not rest upon mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Proof by substantial evidence is required.”

Sizemore v. Owner-Operator Indep. Drivers Ass’n, 671 So.2d 674, 675 (Ala.Civ.App.1995). The Bryants contended from the time the Robledos initiated the action that no contract for legal services had been entered into between the parties. For the first time, in their response in opposition to the Robledos’ summary-judgment motion, the Bryants addressed the fraud claim and contended that the only possible fraud was promissory fraud, which requires an intent to deceive. The admissions, however, pertain directly to that issue and conclusively established the fact that James Bryant knew or should have known that he would be unable to perform any legal or financial services because Nave had been deemed incompetent before he signed James Bryant’s power of attorney.

The Bryants correctly note that four elements must be proven in a fraud action: (1) false representation, (2) as to a material fact, (3) reliance on that representation, and (4) damage resulting from the reliance. Crowne Invs., Inc. v. Bryant, 638 So.2d 873, 876-77 (Ala.1994). The Ro-bledos contended that James Bryant knew or should have known that he would be unable to perform the legal and financial services that he promised to perform; they asserted that if they had been told that Nave was incompetent at the time he gave Bryant a power of attorney, they would never have sent Bryant the $15,000. In addition to the admissions, the Roble-dos presented to the trial court a number of electronic letters that, they said, prove that James Bryant made false representations as to his legal services and that they lost $15,000 as a result of relying on his statements. The Bryants attempted in the trial court to explain the statements or to characterize them as only potentially “promissory fraud,” but they offered no substantial evidence to rebut the Robledos’ contention.

Regardless of the whether the Robledos’ breach-of-contract claim was viable, we conclude that the Robledos presented substantial evidence that they relied on a misrepresentation of James Bryant to their financial detriment in the amount of $15,000 so as to defeat the Bryants’ summary-judgment motion as it pertained to claims asserted against James Bryant. Therefore, although the trial court erred in entering a summary judgment against Beth Bryant, we conclude that the trial court properly entered the summary judgment against James Bryant and in favor of the Robledos on their fraud claim in this case.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

CRAWLEY, P.J., concurs.

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

MURDOCK, J., concurs in the result, with writing.

BRYAN, J., concurs in the result in part and dissents in part, with writing.

MURDOCK, Judge,

concurring in the result.

Section 6-5-572(1), Ala.Code 1975, defines a legal-services-liability action as one based, in whole or in part, on a violation by a legal-service provider of the standard of care applicable to a legal-service provider. It then goes on to state:

“A legal service liability action embraces all claims for injuries or damages or wrongful death whether in contract or in tort and whether based on an intentional or unintentional act or omission. A legal services liability action embraces any form of action in which a litigant may seek legal redress for a wrong or an injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Alabama now or in the future.”

As both the main opinion and Judge Bryan’s special writing point out, if there is to be a claim under the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala.Code 1975, there must be an attorney-client relationship. That this is a correct statement of law, however, does not foreclose the possibility of a contract in which “party A” contracts with “party B,” an attorney, to provide legal services to “party C.” “Party C” would simply be the third-party beneficiary of the contract entered into directly between “party A” and the attorney.

The fact that under such an arrangement there would be an attorney-client relationship between the attorney and “party C,” would not change the fact that “party A” may have an action in contract against the attorney if the attorney breaches his promise to “party A” to provide legal services to “party C.” Likewise, the fact that there would be an attorney-client relationship between the attorney and “party C” would not prevent “party A” from bringing an action in tort against the attorney in the event the attorney fraudulently induced “party A” to enter into the above-described contract or to pay the attorney a sum of money thereunder.

Unless the trial court abused its discretion in not permitting Bryant to withdraw or amend the admissions that resulted from his not responding timely to the Ro-bledos’ request for admissions (which Bryant has not argued), Bryant’s admissions are conclusively binding on him. Rule 36(b), Ala. R. Civ. P., specifically says that “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” Among the matters therefore “conclusively established” in the present case are facts that establish the Robledos’ fraud claim against Bryant. It is for this reason that I concur in the result reached by the main opinion.

BRYAN, Judge,

concurring in the result in part and dissenting in part.

Insofar as the main opinion reverses the summary judgment in favor of the plaintiffs, I concur in the result. Insofar as the main opinion affirms the summary judgment in favor of the plaintiffs on their fraud claim, I must respectfully dissent. In my opinion, the absence of evidence of an attorney-client relationship between the plaintiffs and the defendant James Bryant was fatal to the plaintiffs’ fraud claim as pleaded by the plaintiffs. See § 6-5-573, Ala.Code 1975; Sessions v. Espy, 854 So.2d 515, 522 (Ala.2002) (recognizing that claims that are alleged to have arisen out of an attorney-client relationship are all subsumed under the Alabama Legal Service Liability Act (“the ALSLA,” § 6-5-570 et seq., Ala.Code 1975)); and Brackin v. Trimmier Law Firm, 897 So.2d 207, 229 (Ala.2004) (holding that “[a]n attorney-client relationship is an essential element of a claim under the [ALSLA]_”).

Although the plaintiffs argued in support of their motion for a summary judgment that James Bryant fraudulently induced them to agree to pay for legal services for Mr. Nave, they had not pleaded such a claim. Given the requirement of Rule 9(b), Ala. R. Civ. P., that circumstances constituting the alleged fraud must be pleaded with particularity, the trial court erred in entering a summary judgment in favor of the plaintiffs on an unpleaded fraud claim. See Rector v. Better Houses, Inc., 820 So.2d 75, 78-79 (Ala.2001) (holding that trial court erred in entering a summary judgment in favor of defendant on the basis of an unpleaded affirmative defense even though the plaintiff had not objected to the assertion of the unpleaded affirmative defense in the trial court).

      . The Robledos’ amended complaint also alleged common-law claims of fraud and breach of contract.

      . Although the case-action-summary sheet contains the entry "10/2/02 Notice of service of discovery material — 2nd request for admissions to plaintiffs,” the record does not contain direct indication of receipt of the admission requests by the Bryants. No signed delivery receipts are contained in the record; only a photocopy of the post-office receipt showing purchase of certified-mail postage for the September requests is included in the record.

      .The case-action-summary sheet contained in the record on appeal only notes that an "answer to request for admissions” was filed with the trial court on September 5, 2002; the record does not identify the answering party or parties, nor the content of those answers.

      . We note that the Bryants' motion to dismiss was filed and denied before the Robledos amended their complaint to include a claim of conversion against the Bryants.

      . As noted previously, the Robledos' complaint never specified what action on the part of Beth Bryant could constitute the basis for a fraud claim; we have already concluded that Beth Bryant was entitled to a judgment as a matter of law on the claims against her.

      . The main opinion notes that the Robledos have not argued that they were third-party beneficiaries of a contract between Nave and James Bryant. The opinion also cites Robinson v. Benton, 842 So.2d 631, 636-37 (Ala.2002), a case which discusses the general rule that Alabama law does not allow an action for legal malpractice against a lawyer by someone claiming to be a third-party beneficiary of the attorney-client relationship between that lawyer and another person. As the main opinion also implicitly recognizes, however, the claims asserted by the Robledos in this case would appear to be dependent upon their direct interaction with Bryant (which, among other things, the Robledos at one point contend led to a contract directly between them and Bryant to which Nave was a third-party beneficiary), not the Robledos' assertion of a status as third-party beneficiaries of a contract between Bryant and Nave.


author: BRYAN, Judge.

text:
    NORMENT SECURITY GROUP v. Ronald CHANEY.
    2040845.
    Court of Civil Appeals of Alabama.
    March 3, 2006.
    Joseph H. Driver and T.J. Segrest of Carr, Allison, Pugh, Howard, Oliver & Sis-son, P.C., Birmingham, for appellant.
    Benjamin E. Pool, Montgomery, for ap-pellee.
   BRYAN, Judge.

On March 8, 2004, Ronald Chaney sued his employer, Norment Security Group, seeking to recover workers’ compensation benefits. Chaney’s complaint alleged that he had been injured in a work-related accident on March 9, 2002. The parties agreed to bifurcate the proceedings and to hold a separate hearing on the issue whether Chaney had provided Norment Security with proper notice of his alleged accident. Following an ore tenus hearing on the matter of notice only, the trial court, on May 4, 2005, issued an order finding that Chaney had provided Norment Security with sufficient notice of his alleged accident pursuant to § 25-5-78, Ala.Code 1975. The trial court’s order addressed only the notice issue and did not contain findings or conclusions on any other issue.

Norment Security appealed the trial court’s order to this court. On appeal, Norment Security argues that the trial court’s order is a final judgment subject to appeal and that the trial court erred by finding that Chaney had provided sufficient notice to Norment Security of his alleged work-related accident. Because we find that there is no final judgment that would support an appeal, we dismiss the appeal.

This court has stated that “the test of a judgment’s finality is whether it sufficiently ascertains and declares the rights of the parties.” Ex parte DCH Reg’l Med. Ctr., 571 So.2d 1162, 1164 (Ala.Civ.App.1990). ‘“It is well established that a final judgment is a “terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.” ’ ” Williams Power, Inc. v. Johnson, 880 So.2d 459, 461 (Ala.Civ.App.2003) (quoting Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990), quoting in turn Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986)). A nonfinal order will not support an appeal. Williams Power, 880 So.2d at 461. The trial court’s order resolved only the issue of whether Chaney gave sufficient notice to Norment .Security of his alleged work-related accident. The order contained no provisions regarding any other aspect of the ease, such as a determination of disability or the benefits that Chaney would be entitled to receive. In recent cases, this court has held that orders similar to the order in the present case are not final judgments that would support an appeal. See First South Utility Constr., Inc. v. Baker, 897 So.2d 374 (Ala.Civ.App.2004); Homes of Legend, Inc. v. O’Neal, 855 So.2d 536 (Ala.Civ.App.2003); and USA Motor Express, Inc. v. Renner, 853 So.2d 1019 (Ala.Civ.App.2003). Because the trial court’s order does not “sufficiently ascertain!] and declare! ] the rights of the parties,” Ex parte DCH Reg’l Med. Ctr., supra, it is not a final judgment and therefore will not support an appeal.

APPEAL DISMISSED.

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


text:
    Larry TURNBO v. Yolanda TURNBO.
    2040541.
    Court of Civil Appeals of Alabama.
    March 3, 2006.

      Rodney B. Slusher, Florence, for appellant.
    Mitchell D. Hays, Tuseumbia, for appel-lee.
   MURDOCK, Judge.

On January 19, 2005, the Lauderdale Circuit Court entered a final judgment divorcing Larry Turnbo (“the husband”) from Yolanda Turnbo (“the wife”). The judgment ordered the husband to pay alimony to the wife, divided the parties’ assets, and made an award of attorney fees to the wife. The husband appeals.

Specifically, the trial court ordered the husband to pay periodic alimony to the wife in the amount of $1,500 per month for a period of 24 months. The trial court awarded to the husband the marital residence, subject to the outstanding mortgage-secured indebtedness thereon; two other parcels of real property (located in Savannah, Tennessee); a GMC pickup truck; a Star Deck boat; and certain personal property. The trial court awarded to the wife real property located at Roberts Lane and Conway Drive in Florence, Alabama, subject to certain indebtednesses owed on those properties; a 1999 Lexus automobile; and certain personal property. The husband was made responsible for the debt secured by the Lexus automobile, for two debts incurred by the wife to her dentist and an anesthesiologist, and for any debts in his name. The wife was made responsible for any debts in her name other than the debts to her dentist and the anesthesiologist. The wife was awarded her retirement account from Safe Place, Inc., a Fidelity mutual fund, a Vanguard individual retirement account (“IRA”), and any bank accounts solely in her name. The husband was awarded all stock in Turnbo Motor Express (“TME”), a Janus IRA, a Vanguard Star fund, and all other IRAs, mutual funds, pension plans, retirement funds, and bank accounts solely in his name. Finally, the trial court required the husband to pay $4,060 for the •wife’s attorney fees.

On appeal, the husband argues that the trial court’s alimony award financially cripples him. The husband also argues that the trial court lacked the authority to award the wife the Lexus automobile because the automobile was owned by TME, that the trial court should not have required him to pay the debt secured by the Lexus because he is financially unable to do so, and that the trial court abused its discretion in requiring him to pay the wife’s attorney fees.

The husband is the sole shareholder of TME, a long-haul trucking operation, which has been operating under a Chapter 11 “reorganization” bankruptcy petition since 2003. Although TME has a negative net worth of approximately $1,194,000, the husband is paid a salary of $52,000 per year by TME. In addition, TME pays mortgage payments on the marital residence totaling $5,000 per month, as well as the parties’ utility bills, the cost of an “office phone” maintained by the husband in the marital residence, cell-phone bills, other household expenses, gas credit card bills, insurance on the aforementioned Lexus automobile and GMC pickup truck, certain gas and vehicle maintenance expenses, and health and life insurance premiums for the husband.

The husband testified that he had a preexisting $1,500 monthly alimony obligation to an ex-wife. The husband also testified that there is a $270,000 judgment entered against him, and that he had personally guaranteed TME’s debts in the amount of $2,074,800.

The wife is originally from Colombia, South America. A few months after meeting the husband in the spring of 1993, the wife moved into the husband’s apartment in Alabama. She obtained a student visa and eventually graduated from the University of North Alabama (“UNA”). She also obtained a work visa, which permitted her to work at TME, where she earned approximately $250 per week.

The husband and the wife were married in January 1997. The wife testified that, in addition to assisting her with “papers” that would allow her to remain in this country with the husband, “[the husband] knows that I am a very honest person and he knew that he trust me more than he trust his own children, so he wanted to put some assets in my name.” The wife proceeded to explain that the husband had told her that he needed to “shield” some of his assets so that they would not be included in the divorce judgment between him and his ex-wife.

After graduating from UNA with a degree in international business, the wife worked for Safe Place, Inc., for approximately one and a half years, earning an annual salary of $22,000. The wife subsequently started her own business, Interpretation Services, L.L.C., which provided interpretation or translation services to courts, hospitals, schools, and individuals. At the time of the parties’ separation, however, the wife was unemployed and was attending law school at Birmingham School of Law.

At some point during their marriage, the husband became suspicious that the wife might be having an affair. The husband introduced into evidence copies of several e-mail messages that indicated that the wife might be involved in a romantic relationship with at least one other man and that stated that she intended to divorce the husband. The wife denied having had an affair, explaining that the husband was very jealous and that he thought any relationship or contact she had with a man had to involve sex. She also accused the husband of having made inappropriate comments to friends and relatives, including suggesting to the wife’s sister that the two women take turns living with him in America while the other stayed in Colombia. One of the wife’s friends, Kathy Adler, testified that on one visit to the parties’ home, upon Adler’s comment that the home was lovely and that Adler would love to live in such a home, the husband stated that he would build Adler a house on the property where he could visit her in the evenings before coming back to the main house. Adler considered this comment to be inappropriate.

For some time prior to the trial, the husband listed the marital residence for sale at a price of $1.5 million. The house is subject to three mortgages and is encumbered, in total, in the amount of $836,966.59. An appraiser called to testify by the husband opined that the house had a market value of only $850,000.

The husband owns two parcels of real property in Savannah, Tennessee; he testified that those parcels of property are worth a total of $3,000. The wife owns two rental properties — the Roberts Lane property and the Conway Drive property. The Conway Drive property was under a contract of sale at the time of the divorce trial; however, the wife testified that the property had been under a contract of sale before but that the sale had not been consummated. The wife testified that the Conway Drive property was to be sold for $77,500 and that the payoff on the mortgage on that property was $60,961.93. The wife further testified that the Roberts Lane property was worth $85,000, with an outstanding mortgage in the amount of $50,910. The rent on the Roberts Lane property is $700 per month, which pays the $600 mortgage payment and costs associated with the upkeep of the property.

The wife regularly drove the 1999 Lexus automobile awarded to her by the trial court. Nonetheless, the husband argues on appeal that the Lexus is owned by TME and therefore that the trial court erred in awarding it to the wife. TME’s bankruptcy petition, however, does not list the Lexus as property owned by TME. According to both the husband and the wife, the loan associated with the purchase of the Lexus has been paid off but the Lexus was subsequently used by the husband as collateral for a loan for TME. The wife testified that the Lexus is worth approximately $20,000. The husband testified that the monthly payments associated with the TME loan secured by the Lexus were $1,300.

The husband regularly drove the GMC pickup truck awarded to him by the trial court. That truck is listed as an asset in TME’s bankruptcy petition. In the petition, the husband listed the value of the truck as $4,000. According to the wife’s testimony, however, the pickup truck is worth approximately $8,000.

The parties had several financial accounts, many funded originally by the husband. The wife owned a Vanguard IRA worth $14,698, a Safe Place retirement account worth $3,100, and a Fidelity mutual fund worth $3,500. The husband had a Vanguard Star Fund worth $26,096 and a Janus IRA worth $13,800. The husband also owned a Star Deck boat worth $33,000; the husband owed $30,000 on the boat at the time of trial.

On appeal, the husband first argues that the trial court’s order requiring him to pay $1,500 per month in alimony for a period of 24 months should be reversed. The record reflects that the mortgage payments, the husband’s preexisting alimony obligation, the husband’s alimony obligation to the wife, and the Lexus payment total $9,300 per month. Citing Wheeles v. Wheeles, 770 So.2d 635 (Ala.Civ.App.2000), the husband contends that this amount exceeds his ability to pay and would “financially cripple” him. The wife counters by pointing out that TME paid for all the marital expenses, so that the trial court could properly have determined that the husband received more monthly income than is reflected only in his salary.

“Trial judges enjoy broad discretion in divorce cases, and their decisions are to be overturned on appeal only when they are ‘unsupported by the evidence or [are] otherwise palpably wrong.’ ” Ex parte Bland, 796 So.2d 340, 344 (Ala.2000) (quoting Ex parte Jackson, 567 So.2d 867, 868 (Ala.1990)). Also, when, as in this case, a trial court’s judgment is based on ore tenus evidence, the judgment is presumed correct. Kennedy v. Kennedy, 743 So.2d 487 (Ala.Civ.App.1999). The presumption of correctness under the ore ten-us rule “is based on the trial court’s unique position to observe the witnesses and to assess their demeanor and credibility.” Glazner v. Glazner, 807 So.2d 555, 559 (Ala.Civ.App.2001); see also Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986).

Matters . such as alimony and property division are within the sound discretion of the trial court. Ex parte Drummond, 785 So.2d 358 (Ala.2000); Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993); and Montgomery v. Montgomery, 519 So.2d 525 (Ala.Civ.App.1987). The issues of property division and alimony are interrelated, and they must be considered together on appeal. Albertson v. Albertson, 678 So.2d 118 (Ala.Civ.App.1996).

In dividing property and awarding alimony, a trial court should consider “the earning abilities of the parties; the future prospects of the parties; their ages and health; the duration of the marriage; [the-parties’] station[s] in life; the marital properties and their sources, values, and types; and the conduct of the parties in relation to the cause of the divorce.” Russell v. Russell, 777 So.2d 731, 733 (Ala.Civ.App.2000). Also, a trial court is not required to make an equal division of the marital property, but it must make an equitable division based upon the particular facts and circumstances of the case. Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996); and Brewer v. Brewer, 695 So.2d 1 (Ala.Civ.App.1996). “A property division that favors one party over another does not necessarily indicate an abuse of discretion.” Fell v. Fell, 869 So.2d 486, 496 (Ala.Civ.App.2003) (citing Dobbs v. Dobbs, 534 So.2d 621 (Ala.Civ.App.1988)).

“[T]he purpose of periodic alimony is to support the former dependent spouse and to enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until that spouse is self-supporting or maintaining a lifestyle or status similar to the one enjoyed during the marriage.”

O’Neal v. O’Neal, 678 So.2d 161, 165 (Ala.Civ.App.1996).

It is true that the husband’s business, TME, is operating in the context of a Chapter 11 bankruptcy proceeding and that, like many businesses, TME has more debts than assets. Nonetheless, the husband does continue to operate TME in such a manner that it is able to pay the husband a $52,000 annual salary and additional income in the form of thousands of dollars per month in mortgage payments and numerous other living expenses.

In addition, substantial evidence was introduced as to the husband’s mistreatment of the wife, evidence from which the trial court could have drawn inferences adverse to the husband as to the cause of the parties’ divorce. Russell, 777 So.2d at 733 (trial court may consider the conduct of the parties in relation to the cause of the divorce in awarding alimony). Further, the trial court had the responsibility for making credibility determinations as to the husband and the wife, as well as for deciding how to weigh the evidence before it. Glazner, 807 So.2d at 559.

In light of the foregoing, and given the deference owed by this court to the trial court’s credibility determinations and its decision as to how to weigh the evidence, we must conclude that the record contains sufficient evidence to support the trial court’s award to the wife of $1,500 per month in alimony for a limited period of 24 months.

The husband also challenges the division of the parties’ marital property. In particular, the husband takes issue with the award of the Lexus automobile to the wife and the trial court’s order that the husband pay the debt now secured by that automobile.

■ We conclude that there was substantial evidence from which the trial court could have concluded that the Lexus automobile was, in fact, not owned by TME. As previously noted, the Lexus was not listed as an asset in the schedules filed by TME in its bankruptcy proceeding. In addition, neither party offered into evidence a certificate of title with respect to the Lexus. Based on this record, we cannot conclude that the trial court erred in awarding the Lexus to the wife.

As for the issue of the monthly payment on the debt secured by the Lexus, the husband argues, in part, that the wife caused the breakup of the marriage and that this “fact” weighs against requiring the husband to pay the debt on the Lexus. We have already addressed the conflicting evidence before the trial court as it relates to the division of the marital assets, among other things, as well as the trial court’s responsibility for weighing the evidence and making necessary credibility determinations. Given the record before us, the husband’s argument in this regard provides us with no basis for reversing the trial court’s judgment.

The loan associated with the purchase of the Lexus has been paid in full and the loan now secured by the Lexus was obtained for the benefit of TME. The requirement that the husband make the payments on this loan is consistent with the award to the husband of all of the assets and debts of TME. Nonetheless, the husband further contends that he simply does not have the funds to make the payments on this loan. We already have addressed the evidence that supports the trial court’s apparent conclusion that the husband’s income includes far more than his annual salary. On the basis of that same evidence, and given the deference owed by this court to the trial court’s consideration of that evidence and the discretion afforded the trial court in dividing marital assets, we cannot conclude that the trial court erred to reversal in requiring the husband to pay the debt on the Lexus.

Finally, the husband takes issue with the attorney-fee award made by the trial court. Citing Korn v. Korn, 867 So.2d 338 (Ala.Civ.App.2003), for the proposition that an award of attorney fees is within the discretion of the trial court, the husband argues that the trial court abused its discretion in this case because he is without funds to pay the attorney fees, that the wife has been awarded sufficient assets from which to pay her own attorney fees, that the wife’s conduct precipitated the divorce, and that the amount of the fee awarded is excessive. Again, based on our review of the record, much of which is discussed above, and given the deference owed to the trial court in its exercise of discretion in the awarding of attorney fees in a divorce case, we cannot conclude that a basis for reversing the trial court has been presented to us.

The wife’s request for the award of an attorney fee on appeal is denied.

AFFIRMED.

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

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

      . The wife testified that TME paid all of the marital bills and was paying for a new boat for the husband.

      . We also would add that, although the wife was awarded several financial accounts, there was substantial evidence introduced at trial indicating that she would be penalized for an early withdrawal of funds from some of those accounts.