author: PITTMAN, Judge.

text:
    Levi HUNT v. ATREX, INC.
    2050824.
    Court of Civil Appeals of Alabama.
    Feb. 23, 2007.
    Thomas P. Ollinger, Jr., Mobile, for appellant.

      Thomas M. Galloway, Jr., of Galloway, Smith, Wettermark & Everest, LLP, Mobile, for appellee.
   PITTMAN, Judge.

Levi Hunt sued Atrex, Inc., seeking to recover damages “not to exceed $50,000” with respect to injuries he allegedly had sustained when he fell on a cable-television line (“the cable”) that Comcast Cablevision of Alabama, Inc. (“Comcast-Alabama”), had hired Atrex to bury underneath the real property of a cable-television subscriber. Hunt alleged that Atrex had negligently or recklessly installed the cable on which he had tripped and fallen, causing his injuries. Atrex filed a motion for a summary judgment, generally asserting that there was no genuine issue as to any material fact and that it was entitled to a judgment as a matter of law based on the undisputed fact that Atrex had buried the cable within seven days of receiving a work order from Comcast-Alabama, as required by the contract that Atrex had entered into with Comcast-Alabama. Hunt filed a memorandum in opposition to Atrex’s motion for a summary judgment. After a hearing, the trial court entered a summary judgment in favor of Atrex without stating findings of fact or conclusions of law. Hunt filed a motion to alter, amend, or vacate the judgment, which was denied. Hunt timely appealed to this court.

Our standard of review of a summary judgment is well settled:

“We review a summary judgment de novo, applying the same standard as was applied in the trial court. A motion for a summary judgment, is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing ‘that there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P. The court must view the evidence in a light most, favorable to the nonmoving party and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). If the movant meets this burden, ‘the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by “substantial evidence.” ’ Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992).”

Bailey v. R.E. Garrison Trucking Co., 834 So.2d 122, 123 (Ala.Civ.App.2002).

The evidence, when viewed in a light most favorable to Hunt, indicates the following. Comcast-Alabama contracted with Atrex to bury various cable-television lines that Comcasb-Alabama had placed above ground; the contract set out that Atrex was to perform the work in a “good and workmanlike manner.” On July 22, 2003, Comcast-Alabama directed Atrex to bury a cable-television line located in the backyard of a residence in Mobile, and on July 25, 2003, an Atrex installer accompanied by a supervisor began the process of burying the cable, but those laborers stopped work at that site after a short time,' leaving a portion of the cable unburied. On July 27, 2003, while performing yard maintenance at the residence, Hunt was injured after he tripped and fell over the unburied portion of the cable that was hidden in tall weeds. On July 28, 2003, the day after Hunt sustained his injuries, Atrex finished burying the remainder of the cable at the residence.

Hunt states two issues on appeal; however, those issues may properly be considered as one, ¿a, whether the trial court erred in entering a summary judgment in favor of Atrex. Hunt argues that Atrex failed to negate an essential element of his claim. Specifically, Hunt argues that in its motion for a summary judgment, Atrex failed to cite to any evidence indicating that it complied with its duty to perform the contract in a “good and workmanlike manner.”

We note that a summary judgment is rarely appropriate as to a claim alleging negligence. Nunnelee v. City of Decatur, 643 So.2d 543 (Ala.1993). To establish negligence, a plaintiff must prove that the defendant breached a duty owed by the defendant to the plaintiff and that the breach proximately caused the plaintiff injury or damage. Prince v. Wal-Mart Stores, Inc., 804 So.2d 1102, 1104 (Ala.Civ.App.2001); Lowe’s Home Ctrs., Inc. v. Laxson, 655 So.2d 943, 945-46 (Ala.1994). The existence of negligence is a mixed question of law and fact. Jones Food Co. v. Shipman, [Ms. 1051322, Dec. 15, 2006] — So.2d — (Ala.2006).

“ ‘ “The burden is on one moving for summary judgment to demonstrate that no genuine issue of material fact is left for consideration by the jury. The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact.” ’ ”

Robertson v. Travelers Inn, 613 So.2d 376, 378 (Ala.1993) (quoting Berner v. Caldwell, 543 So.2d 686, 688 (Ala.1989), quoting in turn Schoen v. Gulledge, 481 So.2d 1094, 1096 (Ala.1985)).

“ ‘If the burden of proof at trial is on the nonmovant, the movant may satisfy the Rule 56[, Ala. R. Civ. P.,] burden of production either by submitting affirmative evidence that negates an essential element in the nonmovant’s claim or, assuming discovery has been completed, by demonstrating to the trial court that the nonmovant’s evidence is insufficient to establish an essential element of the nonmovant’s claim....’”

Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d at 691 (Houston, J., concurring specially)).

It is apparent from the record that in support of its summary-judgment motion Atrex offered a contract entered into by a different corporate entity than the one for whom it was performing services at the time of Hunt’s injury, that that contract was not the contract under which Atrex had been hired to perform the work at the residence where Hunt allegedly sustained injuries, and that there was a separate contract between Comcast-Alabama and Atrex. Furthermore, none of the portions of the contract between Comcast-Alabama and Atrex that were filed by Hunt contained the specific seven-day scheduling provision on which Atrex had relied as its sole ground in its summary-judgment motion. Although Hunt has parsed his argument on appeal so as to focus primarily upon what he claims is Atrex’s failure to negate the duty element of negligence, Atrex in this case simply did not present evidence that would have negated any of the essential elements of Hunt’s negligence claim.

Applying the above principles of law, we conclude that the trial court erred in entering the summary judgment. We, therefore, reverse that judgment and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON, P.J., and THOMAS, J., concur.

BRYAN and MOORE, JJ., concur in the result, without writing.

      . In support of its motion for a summary judgment, Atrex attached a copy of a contract that Comcast Communications of Meridian, Inc., a different corporate entity than Com-cast-Alabama, had entered into with Atrex. Hunt filed a partial copy of the contract between Comcast-Alabama and Atrex in support of his opposition to Atrex’s summary-judgment motion. The contract excerpts filed by Hunt did not contain the scheduling provision purportedly requiring Atrex to bury the cable within seven days of receiving a work order that Atrex had relied on in its motion for a summary judgment, although both contracts required Atrex to perform the work in a “good and workmanlike manner.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    C.D.S. v. K.S.S.
    2050878.
    Court of Civil Appeals of Alabama.
    March 2, 2007.

      Charles D. Decker, Dothan, for appellant.
    John C. White of Cobb, Shealy, Crum, Derrick & Pike, P.A., Dothan, for appellee.
    Amy M. Shumate, Dothan, guardian ad litem.
   PER CURIAM.

C.D.S. (“the father”) appeals a purported judgment entered by the Houston Juvenile Court on July 20, 2006, in its cases docketed as case no. JU-06-18 and case no. JU-06-19 insofar as that judgment (1) awarded K.S.S. (“the mother”) primary physical custody of one of the parties’ minor children, namely R.P.S., and (2) ordered the father to pay the mother’s attorney an attorney’s fee in the amount of $4,325 together with costs in the amount of $455.62. The father also appeals a contempt judgment entered against him by the Houston Circuit Court in its case docketed as case no. DR-03-752.02, a case that was later transferred to the juvenile court and consolidated with case no. JU-06-18 and case no. JU-06-19. Because we lack jurisdiction, we dismiss the father’s appeal with instructions to the juvenile court.

The record on appeal does not contain any pleadings or orders dated earlier than August 9, 2005; however, the juvenile court’s purported judgment recites that the Houston Circuit Court entered a judgment divorcing the father and the mother on January 18, 2005. The juvenile court’s purported judgment further recites that, in accordance with a settlement agreement entered into by the parties, the divorce judgment awarded the parties joint legal custody of their two daughters, K.S., who was born in September 1991, and R.P.S., who was born in October 1997; awarded the father primary physical custody of both daughters; and awarded the mother visitation.

The first pleading in the record on appeal is a petition (“the contempt petition”) the mother filed with the Houston Circuit Court on August 9, 2005, seeking an order finding the father in contempt for, among other things, allegedly interfering with her visitation rights. The contempt petition also sought pendente lite custody of the children. The circuit court docketed the postdivorce proceeding initiated by the mother’s contempt petition as case no. DR-03-752.02. On August 11, 2005, the circuit court entered a pendente lite order stating, in pertinent part, “that [the mother] shall become the primary physical custodian of her minor child [R.P.S.] ... for court ordered visitation.... ”

Answering the mother’s contempt petition on August 31, 2005, the father denied that he was guilty of contempt. The father also counterpetitioned the circuit court to suspend the mother’s visitation rights based on his allegations that, among other things, the mother had inappropriately taken baths with the younger daughter, had used foul and abusive language in addressing the children, and had prevented the children from talking to the father on the telephone when the children were visiting the mother.

The circuit court held a hearing on the mother’s contempt petition on September 1, 2005. On September 9, 2005, the circuit court entered an order deferring a ruling regarding the mother’s contempt petition, revising the mother’s visitation schedule with respect to the older child, and requiring the parties to attend counseling.

On December 12, 2005, the mother amended her contempt petition to request, among other things, that the circuit court modify the divorce judgment to award her primary physical custody of the children. That same day, the circuit court entered an order awarding the mother temporary custody of the children from December 17, 2005, until December 24, 2005. On December 16, 2005, the circuit court appointed attorney Amy Shumate to serve as the children’s guardian ad litem.

On January 13, 2006, the guardian ad litem filed petitions with the Houston Juvenile Court seeking a finding that the children were dependent. The guardian ad litem based her petitions on the allegations of misconduct the mother and the father had made against one another in the circuit court proceeding. The juvenile court docketed the dependency proceedings initiated by the guardian ad litem’s petitions as case no. JU-06-18 and case no. JU-06-19.

On January 17, 2006, the circuit court received additional ore tenus evidence regarding the mother’s contempt petition and also received ore tenus evidence regarding the father’s counterpetition seeking the suspension of the mother’s visitation rights. On January 19, 2006, the circuit court entered an order stating, in pertinent part:

“Upon hearing the testimony, the court finds that the said minor children, [K.S. and R.P.S.,] are the subject of serious controversy between their parents regarding visitation for the mother, [K.S.S.], which is causing emotional harm to the said children.
“THEREFORE, the court finds that the children are dependant and temporary custody is hereby placed with the Department of Human Resources.[]
“The Court further finds that the father, [C.D.S.,] is in contempt of this court’s order for willfully failing to abide by this court’s visitation orders of September [9], 2005 and December [12], 2005.
“Costs, attorney’s fees and guardian ad litem fees are taxed to [the father], [The mother’s] attorney and [the guardian ad litem] to file affidavits of attorney’s fees within 30 days of the date of this order.
“The court reserves jurisdiction to assess further sanctions.”

That same day, the circuit court, acting ex mero motu, entered another order transferring case no. DR-03-752.02 to the juvenile court.

On February 2, 2006, the father challenged the circuit court’s January 19, 2006, order finding the children to be dependent and finding him in contempt by filing a Rule 59, Ala. R. Civ. P., motion with both the circuit court and the juvenile court. The father’s motion also challenged the circuit court’s separate January 19, 2006, order transferring the case to juvenile court. The circuit court transferred to the juvenile court the Rule 59 motion the father had filed with the circuit court. On March 14, 2006, the juvenile court heard the father’s Rule 59 motion and conducted a review of the children’s custody arrangements. That same day, the juvenile court entered an order returning physical custody of the children to the father; maintaining legal custody in the Department of Human Resources (“DHR”); and denying, as moot, the guardian ad litem’s petitions to find the children dependent. On March 17, 2006, the juvenile court entered another order reiterating the rulings in its March 14 order and, in addition, denying the father’s Rule 59 motion challenging the orders of the circuit court finding the children to be dependent, finding the father to be in contempt, and transferring the circuit court case to the juvenile court.

The juvenile court then held a hearing on July 18, 2006, regarding the mother’s petition seeking a modification of custody. After receiving ore tenus evidence, the juvenile court entered a purported judgment on July 20, 2006. That purported judgment states, in pertinent part:

“Upon ... hearing the testimony and considering the evidence adduced herein and the evidence in prior hearings of this court, the court finds that the mother’s petition is due to be granted.
“The court finds that the father has continued in a pattern of conduct to alienate the affections of the children from their mother by emphasizing the flaws and shortcomings of the mother such that the mother cannot discipline the children when in her presence. He has succeeded in the alienation of the oldest child, [K.S.], and it would be detrimental to her emotional well-being for her to be forced to visit her mother. Therefore, DHR is relieved of custody of [K.S.] and she [is] remanded to the custody of her father.
“The court finds that the father is not a fit and proper person to have custody of [R.P.S.] and that it would be detrimental to her emotional well-being should the child continue to be placed with him. Therefore, DHR is ordered to remove the child from [the] father’s home and place the child with [the] mother.... Upon removal of the child to the home of the mother, DHR is relieved of custody and the child is remanded to the custody of mother, [K.S.S.]
“The parties, their families and the children shall not have any further contact with each other except through their attorneys and the guardian ad li-tem. At such time that the parties and families feel that they can cooperate, then the court will consider verified petitions for visitation.
“The court finds that the father has willfully violated the visitation orders and decrees of this court and has literally thumbed his nose at this court’s orders.
“The father is ordered to pay to mother’s attorney the sum of $455.62 as costs and the further sum of $4,325 as reasonable attorneys fees within 30 days of this order.”

On July 24, 2006, the father appealed to this court. The next day, the father moved this court to stay the execution of the juvenile court’s purported July 20, 2006, judgment pending resolution of his appeal; this court granted that motion.

On July 28, 2006, the guardian ad litem petitioned the juvenile court to enter an order determining the physical custody of R.P.S. pending resolution of the father’s appeal. In response to that motion, the juvenile court entered an order on August 3, 2006, awarding legal custody of R.P.S. to DHR and awarding physical custody to the mother.

The father then moved this court to vacate the juvenile court’s August 8, 2006, order. After receiving responses to the father’s motion to vacate from the mother, DHR, and the guardian ad litem, this court entered an order that, among other things, granted the father’s motion to vacate the August 8, 2006, order and ruled that the juvenile court’s March 14, 2006, order should govern the custody of the children pending the resolution of this appeal.

On appeal, the father first argues that the juvenile court, in its purported judgment of July 20, 2006, erred in transferring custody of R.P.S. to the mother and in awarding an attorney’s fee to the mother’s attorney. Because “[a] void judgment will not support an appeal,” Carter v. Hilliard, 838 So.2d 1062, 1064 (Ala.Civ.App.2002), however, we must first determine whether the juvenile court’s purported July 20, 2006, judgment is a valid judgment. Because a judgment is void if the court that entered it lacked subject-matter jurisdiction, see Clark v. Clark, 682 So.2d 1051, 1052 (Ala.Civ.App.1996), we must determine whether the juvenile court had subject-matter jurisdiction over the parties’ dispute when it entered its purported judgment of July 20, 2006, in order to determine whether that judgment is valid.

Before the guardian ad litem filed her dependency petitions with the juvenile court, the circuit court, by virtue of the parties’ divorce action, had continuing subject-matter jurisdiction over custody issues to the exclusion of the juvenile court. See Ex parte K.S.G., 645 So.2d 297, 299 (Ala.Civ.App.1992) (“[Subject to two exceptions,] when a circuit court acquires jurisdiction over the issue of child custody pursuant to a divorce action, it thereafter retains jurisdiction over that issue to the exclusion of the juvenile court. P.R.G. v. W.P.R., 590 So.2d 913 (Ala.Civ.App.1991); Taylor v. State, 448 So.2d 397 (Ala.Civ.App.1984).”). An exception to the exclusive continuing jurisdiction over custody issues conferred on a circuit court by the parties’ divorce action occurs “when there are emergency circumstances which threaten the immediate welfare of the child....” Ex parte K.S.G., 645 So.2d at 299. When those circumstances are alleged, the juvenile court’s subject-matter jurisdiction over custody issues is concurrent with the continuing jurisdiction over custody issues conferred upon the circuit court by the parties’ divorce action. See Ex parte K.S.G., 645 So.2d at 299; and Walters v. Taylor, 513 So.2d 640, 641 (Ala.Civ.App.1987). Furthermore, “[b]y statute, the juvenile court has exclusive original jurisdiction in proceedings in which a child is alleged to be dependent, § 12-15-30(a), [Ala.] Code 1975.” Ex parte K.S.G., 645 So.2d at 299. Thus, in the case now before us, the filing with the juvenile court of the guardian ad litem’s dependency petitions, which alleged circumstances constituting an emergency with regard to the emotional welfare of the children, not only conferred upon the juvenile court exclusive original subject-matter jurisdiction over the dependency proceedings initiated by those petitions but also conferred upon the juvenile court subject-matter jurisdiction over custody issues that was concurrent with the continuing subject-matter jurisdiction over custody issues conferred upon the circuit court by the parties’ divorce action.

However, the juvenile court’s denial of the dependency petitions on March 14, 2006, not only terminated the dependency proceedings, but also constituted a determination on the allegations of circumstances constituting an emergency with regard to the emotional welfare of the children. Those allegations were the sole basis for the juvenile court’s concurrent jurisdiction over custody issues under the circumstances of this case. Thus, when it entered its purported judgment on July 20, 2006, the juvenile court did not have subject-matter jurisdiction over the parties’ custody dispute, and, therefore, that purported judgment is void.

Under the circumstances of this case, the only court that had subject-matter jurisdiction over the parties’ custody dispute after the juvenile court denied the dependency petitions was the circuit court. Consequently, the juvenile court should have transferred case no. DR-03-752.02 back to the circuit court for it to adjudicate the custody dispute in accordance with the standard enunciated by the Alabama Supreme Court in Ex parte McLendon, 455 So.2d 863 (Ala.1984), instead of proceeding further.

Because the juvenile court’s purported July 20, 2006, judgment is void, we dismiss the father’s appeal insofar as it seeks review of the purported July 20, 2006, judgment of the juvenile court, and we direct the juvenile court (1) to set aside its purported judgment of July 20, 2006, and (2) to transfer case no. DR-03-752.02 back to the circuit court for it to adjudicate the custody dispute in accordance with the McLendon standard.

The father also argues that the circuit court erred in finding him in contempt in its January 19, 2006, order. However, this court does not have jurisdiction to review that finding of contempt because it was a final, separately appealable judgment, see Gladden v. Gladden, 942 So.2d 362, 370 (Ala.Civ.App.2005); and Thomas v. Vanhorn, 876 So.2d 488, 491 (Ala.Civ.App.2003), from which the father did not file a timely appeal — the father did not file a notice of appeal within 42 days of the denial of his Rule 59 postjudgment motion challenging that finding of contempt. See Rule 4(a)(1) and (3), Ala. R.App. P. Although in Christian v. Christian, 738 So.2d 1275 (Ala.Civ.App.1999), this court held that a finding of contempt was not a final, separately appealable judgment, our subsequent decisions in Thomas v. Vanhorn and Gladden v. Gladden implicitly overruled Christian v. Christian but did not expressly do so. We take this opportunity to expressly overrule Christian v. Christian.

“ ‘The timely filing of a notice of appeal is a jurisdictional act.’ Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985); see also Rule 2(a)(1), Ala. R.App. P.” R.M. v. J.D.C., 925 So.2d 970, 972 (Ala.Civ.App.2005). Thus, the father’s failure to timely file a notice of appeal from the circuit court’s January 19, 2006, judgment finding him in contempt deprives this court of jurisdiction to review that contempt judgment. Accordingly, we dismiss the father’s appeal insofar as it seeks review of that contempt judgment.

Finally, the mother has moved this court to strike certain documents that are appended to the father’s brief on the ground that those documents are outside the record on appeal. Because we dismiss the father’s appeal, the mother’s motion to strike is moot.

APPEAL DISMISSED WITH INSTRUCTIONS TO THE JUVENILE COURT.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

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

      . The circuit court did not have subject-matter jurisdiction to find the children dependent. Section 12-15-30(a), Ala.Code 1975, provides that "[t]he juvenile court shall exercise exclusive original jurisdiction of proceedings in which a child is alleged to be ... dependent....”

      . The Houston Circuit Court judge to whom case no. DR-03-752.02 was then assigned is also designated to serve as the Houston Juvenile Court judge.

      . Although neither party has raised an issue regarding this court's jurisdiction, " jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ " Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)).

      . Although the Houston Circuit Court judge presiding over the parties' circuit court action is also designated to serve as the Houston Juvenile Court judge, the circuit court did not have jurisdiction to find the children dependent as it purported to do in its January 19, 2006, order. Because the circuit court lacked subject-matter jurisdiction to find the children dependent, its finding of dependency is void. See Clark v. Clark, 682 So.2d at 1052.

      . The circuit court's transfer of case no. DR-03-752.02 to the juvenile court could not confer upon the juvenile court the continuing subject-matter jurisdiction regarding custody conferred upon the circuit court by the parties' divorce action. Moreover, although in this instance the juvenile court judge is a circuit court judge and Rule 2(F), Ala. R. Juv. P., states that "[wjhen the juvenile judge is a circuit judge, the juvenile court shall have and exercise full jurisdiction and power of the juvenile court and of the circuit court of the state” (emphasis added), we do not read that rule of procedure as purporting to enlarge the subject-matter jurisdiction conferred upon the juvenile court by § 12-15-30, Ala.Code 1975. See Ala. Const.1901, Amend. No. 328, § 6.11 (now Art. IV, § 150, Ala. Const.1901 (official recomp.) )(”The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts ....”) (Emphasis added.)


author: THOMAS, Judge.

text:
    C.E. v. C.C.H.
    2050898.
    Court of Civil Appeals of Alabama.
    March 9, 2007.

      J. David Robinson, Daleville, for appellant.
    Anthony R. Livingston, Daleville, for ap-pellee.
   THOMAS, Judge.

C.E. (“the father”) and C.C.H. “(the mother”) are the parents of B.N.E. (“the child”). The child has been in the custody of the father, a sergeant in United States Army, since 1996 or 1997; the father received court-ordered custody in 1998. In January 2005, the mother petitioned for custody of the child; the juvenile court awarded the mother custody. The father appealed to this court, arguing that the mother had failed to meet the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984). We reversed the judgment of the juvenile court, concluding that the mother had failed to meet the stringent burden imposed by Ex parte McLendon. C.E. v. C.C.H., 922 So.2d 934 (Ala.Civ.App.2005). The child was returned to the custody of her father in August 2005.

The mother filed another petition to modify custody on September 7, 2005. After a trial in June 2006, the juvenile court again awarded custody of the child to the mother. The father appeals, arguing that the mother failed to meet the burden imposed by Ex parte McLendon. We reverse the judgment of the juvenile court awarding custody to the mother.

“When evidence is presented ore ten-us and the trial court ‘ “resolves conflicting questions of fact in favor of one of the parties, its findings will not be disturbed on appeal unless they were clearly erroneous or manifestly unjust.” ’ Lilly v. Palmer, 495 So.2d 522, 525 (Ala.1986) (quoting Scarbrough v. Smith, 445 So.2d 553, 555 (Ala.1984)). However, when the question presented on appeal is one of law, the ore tenus rule has no application. Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994). Likewise, ‘there is no presumption of correctness in the trial court’s application of the law to the facts.’ Amie v. Conrey, 801 So.2d 841, 846 (Ala.Civ.App.2001).”

Ex parte Martin, 961 So.2d 83, 86 (Ala.2006).

The testimony at trial indicated that the 13-year-old child, who testified in camera, desired to live with her mother. She reported that she did not get along well with the father’s new wife, S.E. The child said that they did not speak to each other very much. The child also reported that her father was not home very often and that he did not interact with her very much at all. She said that the father required her to keep her room clean and to do dishes three nights per week. She said that he did not allow her to go places, such as parties, alone. She also said that her father and her stepmother would fuss and fight over the father’s not being home with the child. The child also testified that she was closer to her mother than to her father and that when she was with her mother they went places.

The mother testified that she had moved into her current residence, a three-bedroom, two-bath apartment in government-subsidized housing, in January 2006. She also said that she had started new employment at a behavioral-medicine facility in January 2006. According to the mother, she works from 7:00 a.m. to 3:00 p.m., earns $7.84 per hour, and “brings home” almost $400 every two weeks. At the time of trial in June 2006, the mother was still living with D.W., who was currently her fiancé; they planned to marry in August 2006. The mother’s fiancé is employed with a company that installs flooring; his income is approximately $500 per week, from which child support for his two children from a prior relationship is deducted. The mother’s two children from a prior relationship, Ca.H. (“the half sister”) and Ch.H. (“the half brother”) also live with the mother and D.W.

The mother testified that she called the child two times per week but that visiting her had been impossible because of the distance between Alabama and Foot Leonard Wood, Missouri, where the father is currently stationed, and because of her work schedule. According to the mother, she can hear the father and the stepmother “fussing and fighting” when she calls the child. The mother explained that when the child was living with her she always had something to do, including attending school functions such as basketball games or football games or attending parties. The mother said that her brother or sister-in-law would often take the child to parties when the mother was at work.

Both of the child’s half siblings testified. The half sister, who is 14 years old, said that she was close to the child. The half sister makes good grades (A’s and B’s) and is involved in cheerleading and beauty pageants. When asked about her weekends, the half sister replied that she spent them at a friend’s house or “sometimes we’ll practice,” apparently referring to cheer-leading practice. According to the half sister, the mother arrives home late in the evening, around 9:00 p.m., and she and her brother stay at home largely unsupervised except for their grandmother’s checking in on them occasionally. The half brother, who is 16 years old, testified that he thought having the child come back to live with them would be a good idea. According to the half brother, his grades range from A’s to C’s, and, when he was asked what he was doing during the summer while the mother worked, he said that he stayed at home and was just hanging out with some friends.

The father testified that the child made good grades in school, making the honor roll for three semesters. However, the child made three B’s, two C’s, and one A in the grading period before trial. The father said that the child had decided that she wanted to attend summer school because the school was offering an advanced math class she wanted to take. The father said that he supported the child’s decision. The father described the after-school program the child attended each day. The program has a computer lab, a homework lab, a gym and associated activities like basketball, a pool hall, and what the father described as “games”; the program supplies teachers who can assist the students with homework. According to the father, the child is usually at the program from approximately 3:00 p.m. to 5:30 p.m.; however, the child said that the father sometimes arrived to pick her up as late at 7:30 p.m.

The father explained that he expects the child to do her homework first, before participating in any after-school activities. He also agreed that he expected the child to keep her room clean and to wash dishes three nights per week. He said that the child would usually get on the telephone or on the computer when she arrived home in the evenings; the father noted that, to the child’s displeasure, the computer was in his room and he monitored her use of it. The father explained that he might be a little overprotective because the child is a female child. The father explained that he was protective of the child, in part, in reaction to a sexual assault that had occurred on base. He admitted that he would take the child to events and remain at the events with her, but he stated that he would sit in another area. As an example, the father stated that he allowed the child to attend a dance and that he went and sat high in the bleachers so he could be nearby but not in the way; he also recounted that he would take the child and her friends to sporting events and sit in a different section than them during the events.

The father also recounted a typical weekend at his home. He denied going out alone on a regular basis, commenting that he might have gone out without the family on a couple of occasions since he had been at Fort Leonard Wood. The father said that he and the child often went to the gym on Saturday mornings to practice basketball together. On Saturday evenings, he said, they would often order pizza and watch a movie. The father said that they only went to church “on occasion”; he also said that he took the child to the “PX,” the store on base, every weekend. On nice evenings, the father said, he and the child might practice basketball outside or he would go outside and watch the child jump on the trampoline; he also said that his family would sometimes play Monopoly, a board game, or a game he called “Phase Ten.” The father admitted that the child’s relationship with the stepmother was not like one with a mother; he commented that he never expected the stepmother to be the child’s mother. He did describe the relationship between the child and the stepmother as good, noting that they did “girlie things,” such as getting manicures and pedicures together.

The father argues that the mother failed to meet the burden imposed by Ex parte McLendon.

“The correct standard [to be applied in custody-modification proceedings in which one parent was favored over the other in the original custody award] is:
“ ‘... [T]he [noncustodial] parent will not be permitted to reclaim the custody of the child, unless [s]he can show that a change of the custody will materially promote h[er] child’s welfare.’
“Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1947), quoting the Supreme Court of Virginia, Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 687, 40 L.R.A. 623 (1898).
“Furthermore,
“ ‘[This] is a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child’s healthy growth into adolescence and adulthood. The doctrine requires that the party seeking modification prove to the court’s satisfaction that material changes affecting the child’s welfare since the most recent [judgment] demonstrate that custody should be disturbed to promote the child’s best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned.’
“Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976).
“It is not enough that the parent show that she has remarried, reformed her lifestyle, and improved her financial position. Carter v. Harbin, 279 Ala. 237, 184 So.2d 145 (1966); Abel v. Hadder, 404 So.2d 64 (Ala.Civ.App.1981). The parent seeking the custody change must show not only that she is fit, but also that the change of custody ‘materially promotes’ the child’s best interest and welfare.”

Ex parte McLendon, 455 So.2d at 865-66 (emphasis added).

More recently, our supreme court has reiterated that the Ex parte McLendon burden is a heavy burden to be met by the parent seeking a change in custody:

“[T]he McLendon test for a change of custody after custody is awarded in a divorce judgment is that the noncustodial parent seeking a change in custody must demonstrate (1) that he is fit to be the custodial parent; (2) that material changes that affect the child’s welfare have occurred since the original award of custody; and (3) that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child.
“Subsequent cases have made the burden of the noncustodial parent even heavier.... Sexton v. Lambert, 611 So.2d 385 (Ala.Civ.App.1992), noted that the McLendon burden is ‘a very heavy burden.’ 611 So.2d at 387. Klapal v. Brannon, 610 So.2d 1167 (Ala.Civ.App.1992), also described the McLendon burden as a ‘heavy burden’ and added that the evidence in support of a modification of custody ‘must be so substantial as to disclose an obvious and overwhelming necessity for a change.’ 610 So.2d at 1169. See also Whitfield v. Whitfield, 570 So.2d 700, 702 (Ala.Civ.App.1990); and Braswell v. Braswell, 460 So.2d 1339, 1341 (Ala.Civ.App.1984).”

Ex parte Martin, 961 So.2d at 87.

Based on the testimony at trial, the mother has established only that the child desires to live with her because, from what we can glean from the child’s testimony, she does not like talking to her stepmother, the father does not spend time with her, and when she was in the mother’s custody she got to “go places.” The mother’s circumstances, though different in certain specifics, are essentially the same as the circumstances she was in at the last modification trial. The child’s circumstances have not changed to any material degree. Nothing in the testimony at trial established a material change in circumstances affecting the child’s welfare such that custody should be changed; nor did the evidence demonstrate that the child’s best interests would be materially promoted by placement in her mother’s custody.

As our supreme court has recently reiterated, “the evidence in support of a modification of custody must be substantial and must demonstrate an overwhelming necessity for a change, as required by Klapal v. Brannon, 610 So.2d [1167,] 1169 [(Ala.Civ.App.1992)].” Ex parte Martin, 961 So.2d at 88. We simply cannot find an overwhelming necessity for this custody modification. Thus, we reverse the judgment of the juvenile court and remand the cause for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The September 2005 petition seeking custody is the mother’s fourth attempt to modify custody of the child since 1998.

      . The record is not entirely clear on this point. The half sister replied to the question "What do ya’ll do before then [referring to when the mother arrives home at 9:00]?” with the answer "My grandma.” Later, she responded affirmatively to the question "Your grandmother comes by and checks on ya'll.”


author: THOMAS, Judge. THOMPSON, Presiding Judge,

text:
    Larry McIVER v. BONDY’S FORD, INC.
    2050317.
    Court of Civil Appeals of Alabama.
    March 9, 2007.

      Charles D. Decker, Dothan, for appellant.
    William L. Lee IV and William L. Nichols of Lee & Mclnish, P.C., Dothan, for appellee.
   THOMAS, Judge.

In June 2000, Larry Mclver purchased a 2001 Ford Sport Trac automobile from Bondy’s Ford, Inc., for $26,480.75. The sale included a $14,000 trade-in allowance for Mclver’s 1996 Ford Explorer automobile. Several weeks after the sale, Bon-dy’s discovered that the Explorer had water damage, a fact of which it had been unaware at the time of the sale. In December 2000, Bondy’s sued Mclver, alleging breach of contract, conversion, negligence, wantonness and fraud. Mclver answered and counterclaimed, alleging breach of contract and a violation of the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala.Code 1975. After a bench trial, the trial court entered a judgment in favor of Bondy’s on its fraud claim and on Mclver’s counterclaims, assessing compensatory damages in the amount of $12,699.18 and punitive damages in the amount of $25,000.

Mclver filed a postjudgment motion, which the trial court denied, and Mclver timely appealed, raising four issues: that the trial court erred (1) by finding that Mclver made a false representation to Bondy’s about the condition of the Explorer; (2) by finding that Bondy’s had reasonably relied on any representation made by Mclver; (3) by awarding punitive damages; and (4) by considering whether the case had been settled before trial.

Bondy’s complaint alleged fraudulent misrepresentation and fraudulent suppression. The trial court apparently determined that Mclver had committed both misrepresentation and suppression because its judgment states:

“The Court ... finds that [Mclver] intentionally and fraudulently failed to disclose the prior damage to. the 1996 Ford Explorer at the time of the trade-in, after specific inquiry by [Bondy’s], that the existence of damage or prior damage was a material fact relating to the transaction, that [Mclver] intended to deceive [Bondy’s] and had knowledge of the misrepresentation, that [Mclver] had a duty to disclose the prior damage, that [Bondy’s] did rely on the intentional misrepresentation and that [Bondy’s] suffered damages as a result of [Mclver’s] intentional misrepresentations; therefore, an additional award of punitive damages in the amount of $25,000.00 is hereby awarded to [Bon-dy’s].”

(Emphasis added.)

The evidence at trial established that on or about May 2, 2000, Mclver, a Florida resident, purchased a 1996 Ford Explorer from John Obert d/b/a Obert Auto Wholesale, in Panama City, Florida, for $9,710. At some point before the transaction was complete, Obert told Mclver that the Explorer had had “light water damage,” and Obert wrote “Has had light water damage” on the invoice for the purchase of the vehicle. Mclver testified that when he inquired about the light water damage, Obert replied that “light water damage” could mean that rain might have come into the vehicle through an open sunroof or window. Mclver further testified that Obert also said that if there had been light water damage, it had been properly repaired and there was “nothing wrong” with the Explorer.

Mclver had the Explorer inspected before he purchased it. Danny Hewitt, an automobile mechante in Panama City, testified that he gave the Explorer a thorough inspection and found nothing wrong with it. Mclver then went to a local automobile dealership and had the title to the Explorer researched. The dealership reported to Mclver that the title was “clean” and that no damage to the vehicle had been reported.

Approximately two months later, Mclver visited Bondy’s and decided to purchase a 2001 Ford Sport Trac and to trade in the Explorer that he had purchased from Obert. John Vollmuth, the Bondy’s salesman who handled Mclver’s transaction, testified that he asked Mclver if there was any damage to the Explorer and that Mclver responded that there was none. Mclver testified that he did not remember Vollmuth’s asking him that question, but he did remember telling Vollmuth that “to the best of his knowledge, there was nothing wrong with the vehicle.” On a trade-in description of the Explorer, Vollmuth wrote that the Explorer was “used — no damage.” Vollmuth acknowledged that he could not remember the transaction with Mclver or recall the specific conversation they had, but he said that he asked everyone who was seeking to trade in a vehicle whether the vehicle had any damage. Vollmuth said that the note he wrote on the trade-in description indicated that he and Mclver had such a conversation.

Larry Williams, the used-car manager for Bondy’s, stated that he performed an inspection on the Explorer and took it for a test drive before agreeing to accept the vehicle as a trade-in and before negotiating a trade-in allowance of $14,000 to offset the price of the Sport Trac that Mclver wished to purchase. Williams testified that, during the inspection, he and Voll-muth asked Mclver why there was sand and dampness on the back carpet. Mclver answered that his son had taken the Explorer to the beach recently and had used it to haul beach equipment. Williams stated that he asked Mclver if there had been any prior damage to the Explorer and that Mclver responded in the negative.

On the buyer’s order for the transaction between Mclver and Bondy’s, Mclver signed a statement that reads as follows: “To the best of my knowledge, the above described trade-in has never been damaged, wrecked or rebuilt; nor does said trade-in have previous or current rebuilt or salvage title.” Mclver testified that he asked what the statement on the buyer’s order meant and that the Bondy’s employee who had assisted him in signing the contracts responded that the statement was asking whether the vehicle had ever been wrecked. Mclver claims he responded that, to the best of his knowledge, the Explorer had never been wrecked.

David Marshall, the president of Bon-dy’s, testified that a few weeks after the sale, he heard some of his employees talking about a vehicle that possibly had some water damage, so Bondy’s decided to have the Explorer checked out specifically for water damage. The Explorer was sent to Bondy’s shop where, Marshall said, the following occurred: “We took the door panels off and the tailgate panel, and found sand in them.... I don’t know if it was salt water or fresh water. But it was up about two and a-half feet inside the car, what it looked like to us.”

Standard of Review

It is well established law in Alabama that, when ore tenus evidence is presented to a trial court sitting without a jury, a presumption of correctness is given to the trial court’s judgment based on that evidence. On appeal, that judgment “will not be disturbed ... unless a consideration of the evidence and all reasonable inferences therefrom reveals that the judgment is plainly and palpably erroneous or manifestly unjust.” Arzonico v. Wells, 589 So.2d 152, 153 (Ala.1991). “Even if this court may have decided differently, it is not [this court’s] function to reweigh the evidence or to substitute its judgment for that of the trial court. James v. James, 582 So.2d 560 (Ala.Civ.App.1991).” Dees v. Dees, 628 So.2d 945, 947 (Ala.Civ.App.1993).

I.

Misrepresentation

Four elements must be proven in a misrepresentation action: (1) a false representation; (2) as to a material existing fact; (3) reliance on that representation; and (4) damage resulting from the reb-anee. Crowne Invs., Inc. v. Bryant, 638 So.2d 873, 876-77 (Ala.1994).

The evidence was undisputed that Mclver signed a statement informing Bondy’s that, “to the best of [his] knowledge,” the Explorer had never been damaged. Focusing on the word “knowledge,” Mclver maintained at trial and now argues on appeal that the evidence did not support a finding that his statement was false. Specifically, Mclver claims that, although he had been informed by Obert that the Explorer had sustained “light water damage,” he had no actual knowledge of any damage to the vehicle. Citing McGarry v. Flournoy, 624 So.2d 1359 (Ala.1993), Mclver contends that his merely stating “not to my knowledge” in response to a question concerning whether the vehicle had any damage is insufficient to prove that he had actual knowledge of the damage and, therefore, is insufficient to prove that he made a “false representation.”

McGarry is distinguishable on its facts. In McGarry, the buyer of a used car brought a fraud action against the seller when the buyer discovered after the sale that the vehicle had previously been wrecked. During negotiations leading up to the sale, the buyer had asked the seller whether the car had ever been wrecked. The seller, who had owned the vehicle less than a week, responded, “Not to my knowledge.” 624 So.2d at 1360. The Alabama Supreme Court affirmed a summary judgment for the seller because, in response to the seller’s motion for a summary judgment, the buyer had submitted no evidence indicating that the seller had knowledge that the vehicle had been wrecked.

In the present case, there was evidence from which the trial court could reasonably have determined that Mclver did have knowledge of the water damage to the Explorer. The sales invoice of Mclver’s purchase of the Explorer from Obert, the deposition testimony of Obert, and Mclver’s own testimony established that Mclver had been informed when he purchased the Explorer that it had sustained “light water damage.”

Moreover, it appears that Mclver is confusing the term “actual knowledge,” as used in the context of fraud, with the term “personal knowledge.” Clearly, Bondy’s was not required to prove that Mclver had “personal knowledge” — in the sense of having seen, with his own eyes — of water damage to the vehicle. Instead, it was sufficient for Bondy’s to prove that Mclver had been informed by his seller (Obert) that the vehicle had sustained water damage and that a document evidencing the sale of the Explorer to Mclver stated that the vehicle had sustained water damage. See Roland v. Cooper, 768 So.2d 400, 406 (Ala.Civ.App.2000)(holding that, because the seller of a truck had in its possession a title document indicating an “odometer discrepancy” on the truck, whether the seller’s agent made a representation that, to the best of his knowledge, the mileage reflected on the odometer was correct — a representation that, if made, could be imputed to the seller — created a question of fact as to fraudulent-suppression claim against the seller). Compare Locklear Dodge City, Inc. v. Kimbrell, 703 So.2d 303 (Ala.1997)(holding that a seller who responded that, to the best of his knowledge, the vehicle had not been wrecked did not engage in fraudulent suppression when the documents in the seller’s possession did not indicate whether the vehicle had been wrecked).

Mclver also argues that the evidence did not support the trial court’s finding that Bondy’s relied on any representation made by Mclver regarding the condition of the vehicle. Instead, Mclver contends that Bondy’s trade-in valuation was based on Bondy’s own inspection of the vehicle and its investigation of the vehicle’s title history. Bondy’s maintains that it relied on both Mclver’s representation that the vehicle had “no damage” and on its own inspection in order to arrive at a fair trade-in allowance for the Explorer. Larry Williams, Bondy’s used-car manager, testified that, if Bondy’s had known of the previous water damage to the vehicle, it either would not have taken the vehicle as a trade-in at all or it would have sold the vehicle to a wholesaler for approximately $5,000. Williams stated unequivocally that Bondy’s would not have given Mclver $14,000 for the trade-in and would not have put a water-damaged vehicle on its lot for resale.

In Torres v. State Farm Fire & Casualty Co., 438 So.2d 757 (Ala.1983), the supreme court set out the guidelines for determining whether a plaintiff has established that he relied on the defendant’s misrepresentation:

“Because it is the policy of courts not only to discourage fraud but also to discourage negligence and inattention to one’s own interests, the right of reliance comes with a concomitant duty on the part of the plaintiffs to exercise some measure of precaution to safeguard their interests. In order to recover for misrepresentation, the plaintiffs reliance must, therefore, have been reasonable under the circumstances. If the circumstances are such that a reasonably prudent person who exercised ordinary care would have discovered the true facts, the plaintiffs should not recover.”

438 So.2d at 758-59.

In support of his lack-of-reliance argument, McIver points to the Alabama Supreme Court’s decision in Turner v. Landmark Chevrolet, Inc., 514 So.2d 1337 (Ala.1987). In Turner, the court held that the buyer of a car could not reasonably rely on the representations of the seller’s agent that the car had not been wrecked because the buyer later had the car inspected by a mechanic of her choosing, the buyer learned from the mechanic that the car had been wrecked, and the buyer was advised by the mechanic either not to buy the car or to ascertain the extent of the damage before she did so.

Turner is clearly distinguishable on its facts. Although Bondy’s performed an inspection, its inspection — unlike the inspection in Turner — revealed no evidence of damage. It was weeks after the sale, when Bondy’s removed the interior side panels of the vehicle, that evidence of water damage was discovered by Bondy’s. David Marshall, Bondy’s president, testified that if Bondy’s had had any indication that the Explorer might have had water damage, it would have inspected the vehicle “a lot closer.” He explained that the normal inspection for purposes of a trade-in appraisal does not include taking out the interior trim.

Whether a plaintiff has reasonably relied on a defendant’s misrepresentation is usually a question of fact. Cf. Foremost Ins. Co. v. Parham, 693 So.2d 409, 421 (Ala.1997)(stating that “[t]he ‘reasonable reliance’ standard ... allow[s] the factfinder ... flexibility in determining the issue of reliance based on all of the circumstances surrounding a transaction, including the mental capacity, educational background, relative sophistication, and bargaining power of the parties”).

The trial court was presented with evidence from which it was authorized to conclude that Bondy’s reasonably relied on Mclver’s representation that the vehicle had no damage. We will not substitute our judgment for that of the trial court on this issue. See C & S Family Credit of Alabama, Inc. v. McNairy, 613 So.2d 1232 (Ala.1992):

“[An appellate court] ‘ “must indulge all reasonable presumptions in favor of the trial court’s findings when evidence is [presented] ore tenus, and this [c]ourt will not substitute its judgment for that of the trial court on the effect of conflicting evidence dealing with a pivotal question of fact.” ’ ”

613 So.2d at 1233 (quoting Starek v. TKW, Inc., 410 So.2d 35, 38 (Ala.1982), overruled on other grounds, Ex parte Grubbs, 571 So.2d 1119 (Ala.1990)(quoting in turn Howell v. Hallett Manufacturing Co., 278 Ala. 316, 318, 178 So.2d 94, 96 (1965))).

Suppression

The elements of a fraudulent-suppression claim are “ ‘(1) a duty on the part of the defendant to disclose facts; (2) concealment or nondisclosure of material facts by the defendant; (3) inducement of the plaintiff to act; (4) action by the plaintiff to his or her injury.’ ” Freightliner, L.L.C. v. Whatley Contract Carriers, L.L.C., 932 So.2d 883, 891 (Ala.2005)(quoting Lambert v. Mail Handlers Benefit Plan, 682 So.2d 61, 63 (Ala.1996)).

“An action for suppression will lie only if the defendant actually knows the fact alleged to be suppressed.” McGarry v. Flournoy, 624 So.2d at 1362. “As a matter of law, one can only be liable for concealing facts of which one has knowledge.” Harrell v. Dodson, 398 So.2d 272, 276 (Ala.1981).

Mclver challenges only the “actual knowledge” component of the nondisclosure element of Bondy’s fraudulent-suppression claim. As we have previously stated in our discussion of the misrepresentation claim, the trial court was presented with evidence from which it reasonably could have concluded that Mclver had actual knowledge that the Explorer had sustained water damage.

II.

Mclver contends that the trial court erred in awarding punitive damages because, he says, the evidence of intentional fraud was not clear and convincing. Initially, we note that it is questionable whether Mclver adequately preserved this issue for appellate review. His post-judgment motion makes two allegations regarding the punitive-damages award: (1) that “[t]he Court abused its discretion in awarding punitive damages to [Bondy’s],” and (2) that “the punitive damages were excessive.”

Neither allegation specifically directed the trial court’s attention to the claimed insufficiency of the evidence to support the punitive-damages award. Compare Sears, Roebuck & Co. v. Harris, 630 So.2d 1018, 1032 (Ala.1993) (stating that appellants “properly raise[d] the issue of whether the award of punitive damages was supported by clear and convincing evidence[ ] in their post-judgment motion for J.N.O.V., or, in the alternative, a new trial or remittitur”). Assuming that Mclver has properly preserved the issue, however, we will address the merits of this issue.

Section 6-11-20, Ala.Code 1975, sets out the circumstances under which punitive damages may be awarded:

“(a) Punitive damages may not be awarded in any civil action, except civil actions for wrongful death pursuant to Sections 6-5-391 and 6-5-410, other than in a tort action where it is proven by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff. Nothing contained in this article is to be construed as creating any claim for punitive damages which is not now present under the law of the State of Alabama.
“(b) As used in this article, the following definitions shall apply:
“(1) Fraud. An intentional misrepresentation, deceit, or concealment of a material fact the concealing party had a duty to disclose, which was gross, oppressive, or malicious and committed with the intention on the part of the defendant of thereby depriving a person or entity of property or legal rights or otherwise causing injury.
“(2) Malice. The intentional doing of a wrongful act without just cause or excuse, either:
“a. With an intent to injure the person or property of another person or entity, or
“b. Under such circumstances that the law will imply an evil intent.
“(3) Wantonness. Conduct which is carried on with a reckless or conscious disregard of the rights or safety of others.
“(4) Clear and Convincing Evidence. Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.
“(5) Oppression. Subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.”

(Emphasis added.) A “gross” misrepresentation is one that is inexcusable, flagrant, or shameful. Talent Tree Pers. Servs., Inc. v. Fleenor, 703 So.2d 917, 924 (Ala.1997). In Prudential Ballard Realty Co. v. Weatherly, 792 So.2d 1045 (Ala.2000), the Alabama Supreme Court explained that

“[t]he terms ‘malicious’ and ‘oppressive,’ ... and the term ‘gross,’ ... are subsumed within the definition of fraud in § 6 — 11—20(b)(1).”

792 So.2d at 1049. The court concluded that,

“in other words, it cannot seriously be argued that an intentional act of fraud committed for the purpose of ‘depriving a person or entity of property or legal rights or otherwise causing injury,’ is not a gross, malicious, or oppressive act, as those terms are defined in § 6-11-20. In short, for purposes of applying § 6-11 — 20(b)(1), the terms ‘gross,’ ‘malicious,’ and ‘oppressive’ are redundant.”

Id.

Section 6-ll-21(e), Ala.Code 1975, provides, subject to exceptions that are not applicable here, that

“no defendant shall be hable for any punitive damages unless that defendant has been expressly found by the trier of fact to have engaged in conduct, as defined in Section 6-11-20, warranting punitive damages, and such defendant shall be liable only for punitive damages commensurate with that defendant’s own conduct.”

(Emphasis added.) The trial court’s judgment makes the express findings required by § 6—11—21(e). It states:

“The Court ... finds that [Mclver] intentionally and fraudulently failed to disclose the prior damage to the 1996 Ford Explorer at the time of the trade-in, after specific inquiry by [Bondy’s], that the existence of damage or prior damage was a material fact relating to the transaction, that [Mclver] intended to deceive [Bondy’s] and had knowledge of the misrepresentation, that [Mclver] had a duty to disclose the prior damage, that [Bondy’s] did rely on the intentional misrepresentation and that [Bondy’s] suffered damages as a result of [Mclver’s] intentional misrepresentations; therefore, an additional award of punitive damages in the amount of $25,000.00 is hereby awarded to [Bon-dy’s].”

(Emphasis added.)

Although the trial court did not expressly state that Mclver engaged in fraud that was “gross, oppressive, or malicious,” the trial court did expressly find that Mclver committed intentional fraud; therefore, punitive damages were warranted. As Weatherly states, “for purposes of applying § 6—11—20(b)(1), the terms ‘gross,’ ‘malicious,’ and ‘oppressive’ are redundant.” 792 So.2d at 1049. Therefore, when the trial court expressly found that Mclver had committed intentional fraud, it was not necessary to then expressly find that such fraud was “gross, oppressive, or malicious,” because such a finding would have been “redundant.”

When determining whether the burden of proof was met to award punitive damages, the standard of appellate review is whether there was “evidence of such quality and weight that a [reasonable and fair-minded fact-finder] could find by clear and convincing evidence [the fact sought to be proved].” Ex parte Norwood Hodges Motor Co., 680 So.2d 245, 249 (Ala.1996). Cf. KGS Steel, Inc. v. McInish, [Ms. 2040526, June 30, 2006] — So.2d -, - (Ala.Civ.App.2006)(Murdock, J. concurring in the result). See also Green v. Leatherwood, 727 So.2d 92 (Ala.Civ.App.1998) (holding that because the trial court, sitting without a jury, determined that the plaintiff had proved wantonness by clear and convincing evidence, the trial court was authorized to award punitive damages).

After carefully reviewing the evidence, we hold that the trial court reasonably could have determined that the following facts were shown by clear and convincing evidence: that Mclver intentionally failed to disclose the water damage to the vehicle; that, in response to a specific inquiry, Mclver knowingly misrepresented that the vehicle had “no damage”; that the existence of the water damage was a material fact, one that Mclver had a duty to disclose; that Bon-dy’s relied on Mclver’s intentional misrepresentation; and that Bondy’s suffered damages as a result. See Alfa Mut. Fire Ins. Co. v. Thomas, 738 So.2d 815, 821 (Ala.1999).

Mclver also contends that the amount of the punitive-damages award was excessive. He filed a postjudgment motion seeking a new trial or requesting, among other things, that the court alter, amend, or vacate the punitive-damages award, arguing that,

“[t]he punitive damages were excessive .... [T]he Court failed to consider the factors for the award of punitive damages as set forth in BMW of North America, Inc. v. Gore[, 517 U.S. 559 (1996) ]; Hammond v. City of Gadsden[, 493 So.2d 1374 (Ala.1986) ]; and Green Oil Co. v. Hornsby[, 539 So.2d 218 (Ala.1989) ]. [Mclver] specifically requests the Court to make on the record findings as to the reasons for awarding punitive damages in this case.”

On appeal, Mclver argues that the trial court erred by denying his postjudgment motion without conducting a hearing and without reviewing the Hammond and Green Oil factors. Those issues, however, have not been preserved for appellate review because Mclver “did [not] request a hearing on the punitive-damages issue,” Waldrip Wrecker Serv., Inc. v. Wallace, 758 So.2d 1110, 1115 (Ala.Civ.App.1999), and “did not point to any evidence to indicate why [he] thought the judgment was excessive,” id. McIver has established no error with respect to the punitive-damages award.

III.

In a prior appeal, this court reversed the trial court’s order granting Bondy’s motion to enforce what Bondy’s said and the trial court agreed, was a binding settlement agreement between the parties. See McIver v. Bondy’s Ford, Inc., 916 So.2d 616 (Ala.Civ.App.2005) (“McIver I”) (holding that the requirements of § 34-3-21, Ala. Code 1975, had not been satisfied). Mclver asserts that the trial court erred by considering this previous alleged “settlement.”

The Alabama Rules of Evidence state that “[e]vidence of conduct or statements made in compromise negotiations is ... not admissible.” Ala. R. Evid. 408. “The Alabama law regarding the admissibility of settlement communications between parties is well established .... [Ojffers of compromise by one party to another in a civil action, whether before or after the litigation is begun, is inadmissible. Alabama courts also recognize that conversations in connection with settlement negotiations are inadmissible.” Super Valu Stores, Inc. v. Peterson, 506 So.2d 317, 321 (Ala.1987)(internal citation omitted).

During the trial, the following colloquy between the court and counsel for the parties occurred:

“THE COURT: Let me see, now, this is a case that went up; is that correct?
“MR. LEE [Counsel for Bondy’s]: Yes, sir.
“MR. DECKER [Counsel for Mclver]: Yes, sir. It has already been reversed once.
“THE COURT: And it was settled; is that right?
“MR. DECKER: Mr. Lee says it was settled. There is nothing other than Mr. Lee’s statement that it was settled.
“MR. LEE: It was represented to the Court by [Mclver’s] previous counsel—
“THE COURT: Well, I think folks came in my office and talked about it. I was under the impression it was settled.
“MR. LEE: It was stated to you by myself, as well as Mr. Yarbrough [Mclver’s former counsel] that it was settled. I thereafter wrote Mr. Yarbrough a letter immediately upon leaving your office. It was not put on the record, Your Hon- or, but you were advised by an officer of the Court on each side of the case that the case had been settled.
“MR. DECKER: Well, since Mr. Yar-brough is not here, I cannot speak for him.
“THE COURT: I understand that.
“MR. DECKER: But that is not what the ... Alabama Court of [Civil] Appeals found.
“THE COURT: Well, the only thing they found was that [the settlement] wasn’t enforceable. They didn’t find whether or not, in fact, there was an agreement. Okay. Anything else, gentlemen?
“[Mr. Lee called the next witness]”

Mclver’s counsel did not object to any part of the foregoing exchange between the court and counsel. In his post-judgment motion, Mclver complained that

“the Court acted improperly in considering the fact that this case was previously settled. The Court during the trial made reference to this alleged settlement. The case had previously been reversed based on the failure of [Bon-dy’s'] to document the alleged settlement. The Alabama Court of [Civil] Appeals agreed that this case had not been settled as alleged by [Bondy’s]. It appears from the Court’s ruling that Mclver was punished for successfully appealing the Court’s prior judgment which was not substantiated by the record.”

Mclver did not request a hearing on his motion. On appeal, he asserts that the trial court ignored the evidence and sought to enforce the terms of the alleged settlement agreement.

In support of his argument that the trial court improperly considered the previous alleged settlement between the parties, McIver cites Kaufman v. Kaufman, 934 So.2d 1073 (Ala.Civ.App.2005), in which this court held that the same trial judge had improperly considered the settlement negotiations of the parties to a divorce. In Kaufman, the judge made the following statements with regard to the settlement negotiations between the parties:

“ ‘[T]he fact of the matter is if you want to know the truth, I was there when the attorneys were trying to settle this case. And you know I was there, Jerry. Of course, I did not participate in the settlement, but I stuck my head in the room enough to know what was going on. And as I understand, the offer that was made to [the wife] was very reasonable, and she turned it down. This is the way I look at things sometimes. Okay....’”

934 So.2d at 1079. Mclver maintains that the judgment in the present case is “along similar lines as the [earlier] settlement [offer] proposed by [Bondy’s].” According to the record, the proposed settlement was that McIver pay Bondy’s $15,000. However, the judgment in favor of Bondy’s in the present case assessed compensatory damages in the amount of $12,699.18.

“This court is bound by the record in all cases.” Bowman v. Integrity Credit Corp., 507 So.2d 104, 106 (Ala.Civ.App.1987)(quoted in McIver I, 916 So.2d at 622). In contrast to Kaufman, we cannot infer from the record in the present case that the trial judge thought the previous settlement offer between these parties was “reasonable” or deduce that the judge was considering the settlement negotiations in any way. From all that appears, the judge was merely trying to recall the procedural history of the case and to restate the decision of the appellate court that reversed his judgment. To conclude otherwise would be pure speculation.

The judgment of the Houston Circuit Court is affirmed.

AFFIRMED.

MOORE, J., concurs.

THOMPSON, P.J., concurs as to Parts I and III and concurs in the result as to Part II, with writing, which BRYAN, J., joins.

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

THOMPSON, Presiding Judge,

concurring as to Parts I and III, and concurring in the result as to Part II.

I concur with the result reached by the main opinion as to Part II. I write specially to discuss in more detail two legal questions surrounding the punitive-damages award: first, what standard of appellate review this court should apply given the procedural circumstances of this case; and, second, whether the Alabama Supreme Court’s decision in Prudential Ballard Realty Co. v. Weatherly, 792 So.2d 1045 (Ala.2000), has diminished the heightened burden that our legislature and judiciary place on plaintiffs seeking punitive damages for fraud-based claims.

Regarding the standard of appellate review, I question the main opinion’s application of a “reasonable fact-finder” standard to this court’s review of the punitive-damages award. The case from which the main opinion draws this standard is inap-posite to the procedural circumstances of this case; Ex parte Norwood Hodges Motor Co. established the standard to be used by trial courts at the summary-judgment or judgment-as-a-matter-of-law stage in “determining whether to submit an issue of punitive damages to the jury.” 680 So.2d 245, 248 (Ala.1996). I do not believe that the standard stated in Ex parte Norwood Hodges Motor Co. is one of appellate review or that it applies after the issue has been submitted to the fact-finder and punitive damages have been awarded. Additionally, this court’s opinion in Green v. Leatherwood appears to apply an ore ten-us, not a reasonable fact-finder, standard of appellate review to the trial court’s award of punitive damages on a wantonness claim. 727 So.2d 92, 93-94 (Ala.Civ.App.1998).

Although the standard of appellate review to determine the excessiveness and constitutionality of a punitive-damages award has been firmly established, see § 6-11-24, Ala.Code 1975; Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 441-42, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001); Horton Homes, Inc. v. Brooks, 832 So.2d 44, 57 (Ala.2001); and Acceptance Ins. Co. v. Brown, 832 So.2d 1, 24 (Ala.2001), I have found no clear statement of the standard of appellate review to be applied in circumstances such as those presented here, where the appellant challenges the trial court’s award of punitive damages, not based on excessiveness or unconstitutionality, but based on a lack of clear and convincing evidence to support the award. Given this lack of guidance, I invite our supreme court to define the proper standard of appellate review to be applied in this procedural circumstance.

Regarding the evidentiary burden placed on plaintiffs seeking punitive damages for fraud-based claims, I concur in the result reached by the main opinion because this court is bound by the precedent of the Alabama Supreme Court. I write to identify an apparent incongruity in the governing law. The Alabama Code and precedent from the United States Supreme Court impose a heightened burden on such claims, requiring plaintiffs to prove more than the simple elements of fraud by substantial evidence. Alabama Code 1975, § 6-ll-20(a), requires proof “by clear and convincing evidence that the defendant consciously or deliberately engaged in ... fraud” as defined by that section. (Emphasis supplied.) Therefore, although a plaintiff may present substantial evidence of fraud, even intentional fraud, such evidence is insufficient to support a punitive-damages award unless it is also “clear and convincing.”

The United States Supreme Court’s decision in BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), demonstrates that a punitive-damages award requires more than substantial evidence of fraud. The Court established three “guideposts” to determine the excessiveness of a punitive-damages award; regarding the first “guidepost,” the reprehensibility of the defendant’s conduct, the Court explained:

“That conduct is sufficiently reprehensible to give rise to tort liability, and even a modest award of exemplary damages does not establish the high degree of culpability that warrants a substantial punitive damages award.”

Id. at 580, 116 S.Ct. 1589. In other words, evidence sufficient to sustain a finding for the plaintiff on his fraud claim is not, without something more, sufficient to sustain a punitive-damages award.

Additionally, for purposes of determining punitive damages, § 6-11-20, Ala.Code 1975, defines fraud to include more than the elements of simple fraud. That section requires clear and convincing evidence that the defendant “consciously or deliberately” engaged in fraud that was “gross, oppressive, or malicious.” Compare § 6-11 — 20(b)(1) with S.B. v. Saint James School, 959 So.2d 72 (Ala.2006). However, as the main opinion discusses, the Alabama Supreme Court in Prudential Ballard Realty Co. v. Weatherly has stated that “for purposes of applying § 6 — 11—20(b)(1), the terms ‘gross,’ ‘malicious,’ and ‘oppressive’ are redundant” and are “subsumed within the definition of fraud.” 792 So.2d at 1049. As the holding in this case demonstrates, despite the statutory language and the heightened burden, under Weatherly punitive damages may be awarded simply upon a finding of intentional fraud for the purpose of causing some injury. Accordingly, Weatherly diminishes the evidentiary burden that has been heightened by statute and by judicial precedent. See Weatherly, 792 So.2d at 1057-58 (Hooper, C.J., dissenting); see also Hunt Petroleum Corp. v. State, 901 So.2d 1, 17-18 (Ala.2004) (Houston, J., concurring specially)(“It is important to note that the statute requires the intentional misrepresentation or deceit to be ‘gross, oppressive, or malicious,’ which heightens the burden of proof necessary to impose punitive damages” (footnote omitted)).

Weatherly, therefore, seemingly conflicts with the express language of § 6—11—20 to the extent that it disregards as “redundant” language that the Alabama Supreme Court has cited and followed with approval. See, e.g., Wholesale Motors, Inc. v. Williams, 814 So.2d 227, 230 (Ala.2001); Cavalier Mfg., Inc. v. Jackson, 823 So.2d 1237, 1248 (Ala.2001), overruled on other grounds, Ex parte Thicklin, 824 So.2d 723 (Ala.2002). I therefore invite the Alabama Supreme Court to clarify the proper application of § 6-11-20, Ala.Code 1975, and the heightened evidentiary burden placed on plaintiffs seeking punitive damages for fraud-based claims, in light of its decision in Prudential Ballard Realty Co. v. Weatherly, supra.

BRYAN, J., concurs.

      . Bondy's voluntarily dismissed its conversion claim. The trial court’s order, which states that "[t]his matter comes before the Court by Plaintiff's Complaint, Defendant’s Counterclaim, the Amendments thereto, as well as the Answers filed by the parties,” explicitly adjudicated Bondy's fraud claims and Mclver’s counterclaims. It is apparent from the trial court’s order that Bondy’s breach-of-contract, negligence, and wantonness claims were implicitly denied. See Coosa Valley Youth Servs. Corp. v. Etowah County, 460 So.2d 1232 (Ala.1984), and Hingle v. Gann, 368 So.2d 22 (Ala.1979).

      . Section 6-5-101, Ala.Code 1975, provides:
      “Misrepresentation of a material fact made willfully to deceive,. or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud."
      Section 6-5-102, Ala.Code 1975, provides:
      "Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.”

      . This court is bound by precedent to review the propriety of an award of punitive damages under the reasonable fact-finder standard. However, we urge the Alabama Supreme Court to revisit or clarify this issue in light of Justice Houston's special concurrence in Hunt Petroleum Corp. v. State, 901 So.2d 1, 17-18 (Ala.2004)(Houston, J., concurring specially):

        "It is important to note that [§ 6 — 11— 20(b)(1) ] requires the intentional misrepresentation or deceit to be 'gross, oppressive, or malicious,’ which heightens the burden of proof necessary to impose punitive damages. Furthermore, 'clear and convincing’ is defined as:
      " 'Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt. ’

      "Ala.Code 1975, § 6 — 11—20(b)(4) (emphasis added). The phrase 'when weighed against evidence in opposition' is very important. Unlike the typical review of a judgment based on a jury verdict where we must, as the jury may, disregard evidence submitted by the defendant when that evidence is disputed, when evaluating the propriety of punitive damages under Ala.Code 1975, § 6-11-20, we are required to weigh the conflicting evidence.”
      (Footnote omitted.)

      . As previously mentioned, the alleged settlement was originally ordered to be enforced by the trial court; Mclver, appealed and the alleged settlement agreement was held to be unenforceable by this court in McIver I.