text:
    William D. THOMPSON v. SouthTRUST BANK, R. Larry Turner, and Terri Nicholson.
    2050078.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2007.

      Phillip A. Gibson, Huntsville, for appellant.
    Robert C. Gammons of Stephens, Milli-rons, Harrison & Gammons, P.C., Huntsville, for appellees.
   MURDOCK, Judge.

William D. Thompson appeals from a summary judgment that the Madison Circuit Court entered in favor of SouthTrust Bank (“SouthTrust”), R. Larry Turner, and Terri Nicholson. We affirm.

I. Facts and Procedural History

In April 2002, Thompson entered into a contract with Tifton’s Corner, Inc., whereby Thompson obtained an option to purchase from Tifton’s Corner, Inc., the Villa Madrid Apartments (“the apartments”) for $1,600,00o. In exchange for the option, Thompson was required to pay $5,000 to Tifton’s Corner, Inc., each month until the option expired in December 2002.

In August 2002, Thompson entered into a contract to sell the apartments to Randy Campbell for $1,900,000. The contract was contingent on Campbell’s obtaining a loan for that amount, and on Campbell’s providing proof to Thompson by September 5, 2002, that a loan in that amount for the purchase of the apartments had been approved by a lender.

Campbell applied to SouthTrust for a loan for the purchase price of the apartments. As part of the application process, Campbell provided a copy of the apartment-purchase contract to Terri Nicholson, an employee of SouthTrust. On August 15, 2002, Nicholson provided to Campbell a letter addressed “to whom it may concern,” in which she stated that Campbell had requested a loan from SouthTrust and that it was SouthTrust’s “intention to provide funding in support of the contract, subject to further property data review including appraisals and full underwriting analysis.” At some point in August 2002, during an inspection of the apartments, Nicholson stated to Thompson’s real-estate agent, Patsy Rentz, that the contract to purchase the apartments was “a done deal” and that “[w]e don’t know what the appraisal will be, but Mr. Campbell has sufficient other collateral if the appraisal is not enough, and he will put additional collateral up to buy this property.”

On September 4, 2002, Nicholson sent a letter to Campbell indicating that South-Trust would loan him up to 80% of the appraised value of the apartments. On September 5, 2002, Campbell contacted Nicholson, asking for a letter indicating that SouthTrust had approved a loan to him for the purchase of the apartments. On that same day, Nicholson prepared and forwarded to Thompson a letter that stated: “Please be advised that SouthTrust Bank has approved a loan to Randy Campbell for the purchase of Villa Madrid Apartments, located at 3902 Cobb Road, Huntsville, AL.”

On September 18, 2002, in an addendum to the purchase contract, Campbell received an extension on the closing date from September 19, 2002, to September 30, 2002. The addendum indicated that SouthTrust had approved a loan to Campbell.

At some point, David Frederick, Campbell’s real-estate agent, learned that Thompson had an option contract to purchase the apartments for only $1,600,000. He contacted Rentz and told her that Campbell would not pay $1,900,000 for the apartments, given the lower amount for which Thompson was purchasing the apartments. Frederick indicated that, by not consummating the transaction with Thompson, Campbell stood to lose only the $10,000 earnest money he had provided under the contract and that he could purchase the apartments directly from Tif-ton’s Corner, Inc., once Thompson’s option contract expired. Frederick stated that “[i]f Mr. Thompson wants to be so greedy, he might wind up with zippo.”

On September 26, 2002, an appraisal on the apartments was completed; it indicated that they had a value of $1,970,000. Campbell testified that because South-Trust had agreed to loan him only 80% of the appraised value of the apartments, he did not have sufficient financing to complete the transaction. On the same day, Campbell sought to amend the contract to reflect a new purchase price of $1,820,000 and a closing date of October 7, 2002. Thompson rejected this amendment. Campbell did not purchase the apartments. Thereafter, Thompson’s option contract on the apartments expired without Thompson having exercised the option to purchase the apartments.

In 2002, Thompson sued SouthTrust, Campbell, and various fictitiously named persons and entities — but not Turner or Nicholson — in the Madison Circuit Court (“the 2002 lawsuit”). The 2002 lawsuit asserted claims of fraud, negligence, wantonness, and conspiracy against South-Trust in connection with the failed transaction involving the apartments. SouthTrust moved the trial court to enter a summary judgment in its favor on all of Thompson’s claims against it. On October 7, 2004, the trial court granted SouthTrust’s motion and entered a summary judgment in its favor.

After the trial court certified the summary judgment in favor of SouthTrust in the 2002 lawsuit as a final judgment pursuant to Rule 54(b), Ala. R. Civ.App., Thompson appealed that judgment to the Supreme Court, which, in turn, transferred the appeal to this court pursuant to § 12-2-7, Ala.Code 1975. This court affirmed the summary judgment in SouthTrust’s favor without a published opinion on September 9, 2005. See Thompson v. SouthTrust Bank, [Ms. 2040509, Sept. 9, 2005] 954 So.2d 5 (Ala.Civ.App.2005) (table) (consolidated with Thompson v. Campbell, [Ms. 2040508, Sept. 9, 2005] 954 So.2d 5 (Ala.Civ.App.2005) (table) ).

On September 7, 2004, while his claims were still pending against SouthTrust in the 2002 lawsuit, Thompson filed a separate lawsuit in the Madison Circuit Court against SouthTrust, Turner, and Nicholson relating to the same failed transaction involving the apartments (“the 2004 lawsuit”). Thompson asserted claims of negligence, wantonness, fraud, and fraud in the inducement against all three defendants. He also asserted a claim of negligent and/or wanton supervision and training against Turner, who was Nicholson’s supervisor, and against SouthTrust. Thompson alleged that SouthTrust was vicariously liable for the conduct of its employees.

On May 24, 2005, SouthTrust, Turner, and Nicholson filed a motion for a summary judgment in their favor. South-Trust contended that Thompson’s action against it was barred by the affirmative defenses of collateral estoppel and res ju-dicata; Turner and Nicholson contended that Thompson’s action against them was barred by the affirmative defense of res judicata. The trial court granted a summary judgment in favor of all three defendants on July 15, 2005. Thompson appealed to the Supreme Court, which transferred the appeal to this court pursuant to Ala.Code 1975, § 12-2-7(6).

II. Standard of Review

A motion for a summary judgment calls into question whether there are genuine issues of material fact and, if not, whether one or more of the parties are entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P. We review de novo the entry of a summary judgment, applying the same standard the trial court applied. “The party moving for summary judgment bears ‘ “the burden of production, i.e., the burden of making a prima facie showing that he is entitled to summary judgment.” ’ Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)).” Stewart v. Brinley, 902 So.2d 1, 8 (Ala.2004). If the party moving for a summary judgment bears the burden of proof at trial on the matter for which a summary judgment is sought, the movant bears the burden at the summary-judgment stage and must provide substantial evidence in support of the motion. Id. “Otherwise, the burden of production does not shift to the nonmovant, and the movant cannot prevail on the motion.” Id.

III. Discussion

Thompson contends that the trial court erred when it entered a summary judgment in the defendants’ favor on their affirmative defenses of res judicata and collateral estoppel because, he argues, they failed to prove several of the elements of each of those defenses. As set forth below, we conclude that the summary judgment in favor of all three defendants is due to be affirmed.

A. The Summary Judgment in SouthTrust’s Favor

SouthTrust was a defendant in Thompson’s 2002 lawsuit, which, like the present action, arose from the failed transaction involving the apartments. The trial court entered a summary judgment in South-Trust’s favor in the 2002 lawsuit, and we affirmed that judgment.

The elements of res judicata are “(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.” Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 636 (Ala.1998). On appeal, the only element of res judicata Thompson argues is not satisfied as to SouthTrust in this case is the fourth element. He asserts that his present cause of action is different than the cause of action that was at issue in the 2002 lawsuit. Specifically, he argues that the claims he asserted against SouthTrust in the 2002 lawsuit did not include one for negligent and/or wanton supervision or training by SouthTrust.

In Old Republic Insurance Co. v. Lanier, 790 So.2d 922 (Ala.2000), our Supreme Court discussed the same-cause-of-action element of res judicata:

“In Alabama ‘[i]t is well-settled that “the principal test for comparing causes of action [for the application of res judi-cata ] is whether the primary right and duty or wrong are the same in each action.” ’ Wesch v. Folsom, 6 F.3d 1465, 1471 (11th Cir.1993) (emphasis added), cert. denied sub nom. Sinkfield v. Wesch, 510 U.S. 1046, 114 S.Ct. 696, 126 L.Ed.2d 663 (1994). ‘Res judicata applies not only to the exact legal theories advanced in the prior case, but to all legal theories and claims arising out of the same nucleus of operative facts.’ Id. (emphasis added). ‘The question is whether the same evidence substantially supports both actions.... It is considered the same cause of action when the same evidence is applicable in both actions.’ Hughes v. Martin, 533 So.2d 188, 191 (Ala.1988). As it is sometimes stated, ‘ “[wjhere two successive suits seek recovery for the same injury, a judgment on the merits operates as a bar to the later suit, even though a different legal theory of recovery is advanced in the second suit.”’ Silcox v. United Trucking Serv., Inc., 687 F.2d 848, 852 (6th Cir.1982); Harrington v. Vandalia-Butler Bd. of Educ., 649 F.2d 434, 437 (6th Cir.1981).... ”

790 So.2d at 928-29 (some emphasis added).

In Equity Resources Management, Inc., supra, the Supreme Court held that a previous lawsuit the plaintiff had filed in federal court barred her subsequent lawsuit in state court. In the previous lawsuit, the plaintiff had sued her employer and several of her coworkers alleging age discrimination in the termination of her employment in violation of the federal Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. Equity Resources Mgmt., 723 So.2d at 635-36. After the federal court dismissed the employee’s claims against her coworkers, the plaintiff obtained a favorable verdict against her employer. Id. at 636. She filed a subsequent suit against the same employer and the same coworkers in state court, asserting, inter alia, negligence or wantonness in the hiring, training, retention, and supervision of her supervisor. Id. The defendants filed a motion for a summary judgment on the ground of res judicata. The trial court denied that motion. Id. at 635. The Supreme Court granted permission under Rule 5, Ala. RApp. P., for the defendants to appeal the denial of their summary-judgment motion. Id.

On appeal, the issue presented to the Supreme Court was whether the fourth element of res judicata was present. The Supreme Court reversed the order of the trial court, holding that the previous lawsuit involved the same cause of action as the subsequent lawsuit. Id. at 636. The Supreme Court held that, in spite of the fact that the plaintiff asserted different claims in each of the lawsuits, the cause of action in each was the same. Id. at 639. The Court stated:

“After carefully examining the allegations contained in Vinson’s federal- and state-court complaints, and after reviewing the federal district court’s ‘Order on Pretrial Hearing,’ we conclude that Vinson’s state-law claims are barred. The basic issues in the federal action centered around whether the defendants, and specifically Carol Bohn, had intentionally discriminated against Vinson by terminating her employment solely on the basis of her age. Vinson specifically alleged in the federal action that the defendants had made material misrepresentations to her concerning her job security and that she had relied on those misrepresentations to her detriment, by giving up an opportunity for other employment. Vinson made these same allegations in her state action. She also alleged in her state action that the defendants had breached a contract by terminating her employment for a reason other than the grounds set out in the company’s ‘Policies and Procedures Manual’ and that the defendants had negligently or wantonly hired or failed to train or supervise ‘staff who act responsibly, and in accordance with the law, toward their employees.’ Vinson’s federal age-discrimination claim and her state-law claims, including her rather vague state constitutional claims, all arose out of the same acts, and her state claims logically would be subject to proof by the very same evidence that supported her federal age-discrimination claim. Although Vinson’s state-law action was instituted on legal theories of recovery different from those pursued in the federal action, those theories, in light of the substantial overlap of factual issues and evidence, do not constitute different causes of action for res judica-ta purposes. Vinson did not request that the district court exercise pendent jurisdiction over her state-law claims, and it is not clear from the record that the district court would have declined such a request.... Therefore, the federal judgment bars her state action under the doctrine of res judicata.”

723 So.2d at 639.

In the present case, the primary wrong alleged in the present lawsuit and the wrong alleged in the 2002 lawsuit are the same. Both lawsuits arise from South-Trust’s representations to Thompson regarding the anticipated loan to Campbell for the purchase of the apartments from Thompson. Although Thompson did not specifically allege in the 2002 lawsuit that SouthTrust’s liability had resulted from its alleged failure to properly supervise or train its employees, the fact remains that SouthTrust, as a corporate entity, could and did act only through its employees. See Read News Agency, Inc. v. Moman, 383 So.2d 840, 843 (Ala.Civ.App.1980). The “legal theory and claims” that Thompson asserts against SouthTrust in this action “arise out of the same nucleus of operative facts” that gave rise to the legal theories he asserted against SouthTrust in the 2002 lawsuit. The same evidence supporting the 2002 lawsuit with regard to SouthTrust substantially supports the present action. The cause of action as to SouthTrust in the present action is the same cause of action Thompson prosecuted against SouthTrust in the 2002 lawsuit, notwithstanding the inclusion of additional “legal theories and claims.” Thus the summary judgment with regard to South-Trust is due to be affirmed.

B. The Summary Judgment in Turner and Nicholson’s Favor

Thompson also argues that the trial court erred when it entered a summary judgment in Turner and Nicholson’s favor on the basis of res judicata. As with SouthTrust, Thompson argues that the present lawsuit arises from a different cause of action than the 2002 lawsuit. We already have explained our disagreement with this assertion. Thompson also argues, however, that Turner and Nicholson cannot satisfy the third element of res judicata, i.e., the requirement of “substantial identity” between the parties in the previous lawsuit and the present lawsuit.

Our Supreme Court has discussed the substantial-identity element of res judica-ta:

“Axiomatically, res judicata ... operate[s] only between parties (and their respective privies) who or which have already opposed each other in at least one claim that has been litigated to a judgment. If neither a party nor any of that party’s privies has litigated at least one claim to a judgment against another party nor any of the other party’s privies, [res judicata cannot] bar either of those parties or any of that party’s privies from suing the other party or any of the other’s privies. See Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So.2d 507, 520 (Ala.2002), Leon C. Baker, P.C. v. Merrill Lynch, Pierce, Fenner & Smith, 821 So.2d 158, 165 (Ala.2001), Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634 (Ala.1998), and Hughes v. Martin, 533 So.2d 188 (Ala.1988).
“ ‘Ordinarily, “[a] party to the second suit will not be [barred by res judicata ... ] from relitigating an issue unless all of the requisite elements exist. It is noteworthy that Alabama has not followed the trend of abolishing the requirement that parties be identical, sometimes referred to as the mutuality of estoppel requirement.” McMillian v. Johnson, 878 F.Supp. 1473, 1520 (M.D.Ala.1995), rev’d in part on other grounds, 88 F.3d 1554 (11th Cir.1996), cert. denied, 521 U.S. 1121 ... (1997). “An exception is made to this requirement for parties in privity with a party to the prior action.” Id. (emphasis added).’ ”

Stewart v. Brinley, 902 So.2d 1, 9-11 (Ala.2004) (quoting Leon C. Baker, P.C. v. Merrill Lynch, Pierce, Fenner & Smith, 821 So.2d 158, 165 (Ala.2001)). In the present case, it is undisputed that Thompson did not name Turner and Nicholson in the 2002 lawsuit. Thus, for the doctrine of res judicata to bar Thompson’s present action against them, Turner and Nicholson must be in privity with at least one of the prevailing defendants in the 2002 lawsuit.

“ ‘ “ ‘The term “privity” has not been uniformly defined with respect to [res judicata ...].’ ” Hughes v. Martin, 533 So.2d 188, 191 (Ala.1988) (quoting Issue Preclusion in Alabama, 32 Ala. L.Rev. 500, 520-21 (1981)). Privity is often deemed, however, to arise from “ ‘(1) the relationship of one who is privy in blood, estate, or law; (2) the mutual or successive relationship to the same rights of property; [or] (3) an identity of interest in the subject matter of litigation.’ ” Id. Thus, the existence of privity has generally been resolved ‘“on an ad hoc basis in which the circumstances determine whether a person should be bound by or entitled to the benefits of a judgment. ’ ” Id. See also Dairyland Ins. Co. v. Jackson, 566 So.2d 723, 726 (Ala.1990) (collecting cases).’
“Leon C. Baker, P.C., 821 So.2d at 165.”

902 So.2d at 10-11 (emphasis added).

Turner and Nicholson’s status as employees of SouthTrust is undisputed. This fact, coupled with the basis on which SouthTrust obtained a summary judgment in the previous lawsuit, allows Turner and Nicholson to take advantage of the previous adjudication in favor of SouthTrust.

In Hughes v. Martin, 533 So.2d 188 (Ala.1988), our Supreme Court examined the substantial-identity requirement of res judicata in the context of joint tortfeasors. In that case, the parents of Henry Hughes were killed when their vehicle collided with a tractor-trailer owned by Southern Haulers, Inc. Hughes, as the executor of his parents’ estate, retained an attorney, Myron Allenstein, and filed a wrongful-death action against Southern Haulers, eventually obtaining a jury verdict in the amount of $10,000. Hughes appealed, arguing, among other things, that the damages awarded were insufficient. This court affirmed.

Hughes, utilizing Allenstein, filed a second wrongful-death action, this time against the driver of the tractor-trailer. Allenstein associated a second attorney, Ludger Martin, to assist him in the case. Before the case went to trial, Hughes, following the advice of the two attorneys, settled the case for $25,000.

After the second case was settled, Hughes sued Allenstein, alleging legal malpractice in connection with the first lawsuit. The trial of this malpractice action resulted in a judgment in Allenstein’s favor, which was affirmed on appeal. Hughes then brought a second legal-malpractice action, this one against both Al-lenstein and Martin in connection with the lawsuit against the driver of the tractor-trailer. Allenstein obtained a summary judgment in this second legal-malpractice action, which was affirmed on appeal. Martin also obtained a summary judgment, from which Hughes appealed.

In the appeal of the summary judgment in Martin’s favor, the Supreme Court considered whether the doctrine of res judica-ta barred the action against Martin and justified the summary judgment in his favor. Addressing the substantial-identity-of-the-parties element, the Court stated:

“[T]he facts unequivocally show that Al-lenstein associated Martin in the case; therefore, we conclude that there was sufficient privity between Allenstein and Martin for the principle of res judicata to apply. Upon review of the record, it is clear that Hughes sued both Martin and Allenstein as joint tort-feasors in the malpractice case based on the [lawsuit against the driver of the tractor trailer], choosing not to claim, if he could, that Martin’s alleged negligence was different from Allenstein’s. Because Hughes sued Allenstein and Martin as joint tort-feasors, we hold that privity existed between Allenstein and Martin and that the ‘substantial identity of the parties’ prong of the res judicata test is met.
“As stated earlier, before a prior judgment will bar a subsequent action, the parties, or those in privity with them, must be the same in the two lawsuits.
“ ‘The term “privity” has not been uniformly defined with respect to res judicata. The following three definitions have appeared in Alabama cases: (1) the relationship of one who is privy in blood, estate, or law; (2) the mutual or successive relationship to the same rights of property; and (3) an identity of interest in the subject matter of litigation. Largely defining privity by example, the Alabama cases seem to resolve the question on an ad hoc basis in which the circumstances determine whether a person should be bound by or entitled to the benefits of a judgment. The decision usually turns on whether the relationship between the parties was close enough and whether adequate notice of the action was received by the alleged privy; this test has been bolstered by the recent tendency of the Alabama courts to analyze privity as an identity of interests.’
“ ‘Issue preclusion in Alabama,’ 32 Ala. L.Rev. 500, 520-21 (1981).
“Appellee contends, and we agree, that ‘if [the plaintiffs claim against Al-lenstein related to the lawsuit against the driver] is barred by application of the doctrine of res judicata, then the claim against co-defendant Martin is likewise barred by the doctrine of res judicata; first, under claim preclusion, and secondly, that not only was there substantial identity of parties between Hughes and Allenstein, but also substantial identity between Allenstein and Martin.’ ”

Hughes, 533 So.2d at 190-91. The Supreme Court concluded that, in addition to the substantial-identity-of-the-parties element, all of the other elements of res judicata were met, and, as a result, the Court affirmed the summary judgment in Martin’s favor.

Although Hughes involved claims against joint tortfeasors, we conclude that its reasoning applies with equal force to a case such as that before us, so as to bar a plaintiff from prosecuting a lawsuit against an employee when the same plaintiff already has suffered an adverse judgment on the merits in an action against the employer for the acts of the employee, provided that the prior judgment for the employer was not based on grounds personal to the employer. Applying the doctrine of res judicata in this circumstance is consistent with the policy underpinning that doctrine. As the Hughes court explained:

“Res judicata is a broad, judicially developed doctrine, which rests upon the ground that public policy, and the interest of the litigants alike, mandate that there be an end to litigation; that those who have contested an issue shall be bound by the ruling of the court; and that issues once tried shall be considered forever settled between those same parties and their privies. 46 Am.Jur.2d Res Judicata § 395 (1969). ‘The principle of res judicata fosters reliance on judicial action, and tends to eliminate vexation and expense to the parties, wasted use of judicial machinery and the possibility of inconsistent results.’ ‘Developments in the Law — Res Judicata,’ 65 Harv. L.Rev. 820 (1952).”

Hughes, 533 So.2d at 190.

The application of res judicata to the employer-employee relationship involved in the present case is in accord with the general rule applied in other jurisdictions. As one well-known treatise explains:

“[WJhere suit is brought against an employer for the alleged wrong of an employee, it is generally held that a judgment on the merits for the employer may bar an action against the employee, particularly where it is conceded or undisputed in the first action that the employee was acting within the scope of his or her employment.”

47 Am.Jur.2d Judgments § 614 (2006) (footnotes omitted). See generally Restatement (Second) of Judgments § 51(l)(a) (1982).

In Emery v. Fowler, 39 Me. 326 (1855), the defendant was tried and found liable for trespass. On appeal, the appellate court noted that there was evidence, excluded by the trial court, indicating that the defendant was the servant of his father, and, for purposes relevant to the lawsuit, had acted at the direction of his father. The court also noted that there was evidence that the defendant’s father had already been tried and found not liable for the same acts that had given rise to the lawsuit against his son. Reversing the judgment against the son and remanding the case for a new trial, the appellate court held that the excluded evidence, if believed by the jury, would constitute a bar to the action against the defendant:

“This case requires that a single point only should be considered; whether one who acts as the servant of another, in doing an act alleged to have been a trespass, is to be considered as so connected with his principal, who commanded the act to be done, that what will operate as a bar to the further prosecution of the principal, will operate as such for his servant.... In such case the principal and servant would be one in interest and would be known to the plaintiff to be so. To permit a person to commence an action against the principal and to prove the acts alleged to be trespasses, to have been committed by his servant acting by his order, and to fail upon the merits to recover, and subsequently to commence an action against that servant and to prove and rely upon the same acts as a trespass, is to allow him to have two trials for the same cause of action, to be proved by the same testimony. In such cases the technical rule, that a judgment can only be admitted between the parties to the record or their privies, expands so far as to admit it, when the same question has been decided and judgment rendered between parties responsible for the acts of others. A familiar example is presented in suits against a sheriff or his deputy, which being determined upon the merits, against or in favor of one, will be conclusive upon the other.
“If upon the testimony the jury should have been satisfied, that the same acts of alleged trespass had been directly put in issue, and that a decision upon them had been made in the former suit on trial of the merits, that decision exhibited by the record of the judgment, should have been held to be conclusive.”

Emery, 39 Me. at 329-32.

Similarly, in Giedrewicz v. Donovan, 277 Mass. 563, 179 N.E. 246 (1932), an employee argued that a previous verdict in favor of his employer in an action brought by the plaintiff constituted a bar to the current suit. After a demurrer to the employee’s res judicata defense was sustained, an appeal was taken. The appellate court, reversing the judgment of the trial court, stated:

“As a matter of public policy and in the interest of accomplishing justice, the better rule would seem to be that, if it is clearly established, in the trial of an action either against the employee or against the principal for damages caused by the employee’s negligent conduct, that the employee is not negligent, the judgment in the case first tried is a bar to a subsequent action by the same plaintiff for the same negligent act of the same employee. In principle it would seem to be immaterial whether the first judgment was obtained in an action against the employer provided the only ground for holding the employer is the negligence of the employee and it clearly appears that in the first trial the employee was found to be free from culpability.”

Giedrewicz, 277 Mass. at 569, 179 N.E. at 248.

Likewise, the federal common law of res judicata provides an identity-of-parties rule that is in accord with the general rule set forth above. As the United States Circuit Court of Appeals for the Fifth Circuit stated in Lubrizol Corp. v. Exxon Corp., 871 F.2d 1279 (5th Cir.1989):

“Most other federal circuits have concluded that employer-employee or principal-agent relationships may ground a claim preclusion defense, regardless which party to the relationship was first sued. See Fiumara v. Fireman’s Fund Ins. Co., 746 F.2d 87, 92 (1st Cir.1984); Lambert v. Conrad, 536 F.2d 1183, 1186 (7th Cir.1976); Lober v. Moore, 417 F.2d 714 (D.C.Cir.1969); Spector v. El Ranco, Inc., 263 F.2d 143, 145 (9th Cir.1959). But see Morgan v. City of Rawlins, 792 F.2d 975, 980 (10th Cir.1986). The doctrinal basis for these decisions has varied according to their fidelity to traditional mutuality or privity concepts, but they share a common practical thread. Where a plaintiff has sued parties in serial litigation over the same transaction; where plaintiff chose the original forum and had the opportunity to raise all its claims relating to the disputed transaction in the first action; where there was a ‘special relationship’ between the defendants in each action, if not complete identity of parties; and where although the prior action was concluded, the plaintiffs later suit continued to seek essentially similar relief — the courts have denied the plaintiff a second bite at the apple. See, e.g., Gambocz v. Yelen[cs]ics, 468 F.2d 837 (3rd Cir.1972); Cahill v. Arthur Andersen & Co., 659 F.Supp. 1115, 1119-23 (S.D.N.Y.1986), aff'd, 822 F.2d 14 (2nd Cir.1987); Ruskay v. Jensen, 342 F.Supp. 264 (S.D.N.Y.1972) (noting that the plaintiffs ‘were fully aware of the role played by the present defendants who were not parties to the earlier proceeding’ when they settled their claims), aff'd, 552 F.2d 392 (2nd Cir.1977), cert. denied, 434 U.S. 911, 98 S.Ct. 312, 54 L.Ed.2d 197 (1977); McLaughlin v. Bradlee, 599 F.Supp. 839, 848 (D.D.C.1984), aff'd, 803 F.2d 1197 (1986); County of Cook v. MidCon Corp., 574 F.Supp. 902 (N.D.Ill.1983), aff'd, 773 F.2d 892 (7th Cir.1985); Spector v. El Ranco, Inc., 263 F.2d 143, 145 (9th Cir.1959).

Lubrizol Corp., 871 F.2d at 1288-89.

Courts in other states also have applied this general rule. See, e.g., Michelson v. Exxon Research & Eng’g Co., 629 F.Supp. 418, 423 (W.D.Pa.1986) (applying Pennsylvania law and citing Restatement (Second) of Judgments § 51 (1982) for the proposition that any judgment involving an employee for actions committed within the line and scope of employment “would apply with the same effect to the employer, and vice versa”); Saavedra v. Orange County Consol. Transportation Agency, 11 Cal.App.4th 824, 14 Cal.Rptr.2d 282, 285-86 (4th Dist.1992); Atlantic Cylinder Corp. v. Hetner, 438 So.2d 922, 923 (Fla.Dist.Ct.App.1983); McNeal v. Paine, Webber, Jackson & Curtis, Inc., 249 Ga. 662, 663-64, 293 S.E.2d 331, 332-33 (1982) (holding claim against employee barred by former adjudication in favor of employer and reasoning: “To allow this case to proceed against [the employee] would create a framework under which a plaintiff could consciously design a legal strategy which would allow him two shots at the same target. In gaming and sports there may be such a thing as the best two out of three, but not even those circles recognize the best one out of two.”); DeLeon v. Slear, 328 Md. 569, 587-88, 616 A.2d 380, 389 (1992); Berwald v. Ratliff, 782 S.W.2d 709, 710-11 (Mo.Ct.App.1989); Massoth v. Staples, 481 P.2d 141, 144 (Okla.1971).

A situation analogous to the present one was presented to our Supreme Court in the ease of Griffin v. Bozeman, 234 Ala. 186, 173 So. 857 (1937). In Griffin, the defendants, who had cut timber on certain land under the authority of Bolinger, were sued by an individual claiming to own that land. The defendants sought to have the case dismissed on the basis that a previous action by the plaintiff against Bolinger based on the same claims had resulted in a verdict in Bolinger’s favor. The defendants argued that they were entitled to the benefit of Bolinger’s judgment because they had acted under Bolinger’s authority and claim to the land in cutting the timber.

The trial court denied the defendants’ motion to dismiss, and the defendants appealed to the Supreme Court. The Supreme Court held that the basis for the previous adjudication must be considered in determining whether the defendants could claim the previous adjudication as a bar to the action against them:

“If in a suit between [the individual claiming the land] and Bolinger the question is directly presented, and it is adjudged in substance and effect that the latter did own the land and timber at the time of the cutting, such cutting should not be held to be a trespass, though not done by Bolinger, but by defendants whose rights were dependent upon and in privity with those of Bolinger. In order for the judgment in favor of Bolinger to exonerate these defendants, it must be made to appear that the judgment for him was based on the ground that there was no such trespass committed on [the] land [claimed by the individual suing the defendants], because it was there held by the court and jury that the land was not that of [the individual], but of Bolinger; or that he was then in the adverse possession.of it, rather than that the verdict was on some personal defense, as that Bolinger did not participate in the trespass.”

Griffin, 234 Ala. at 139, 173 So. at 859-60 (emphasis added). The verdict from the previous action against Bolinger was general, and it was therefore unknown whether the previous adjudication in favor of Bolinger was based on a defense that was personal to him or on a general defense to the action. Because the specific basis of the previous verdict was thus unknown, the defendants were unable to demonstrate on the appeal in their case that they were entitled to claim the previous adjudication in favor of Bolinger as a bar to the action against them, and, as a result, the Supreme Court did not overturn the trial court’s refusal to dismiss the case on that basis. Id.

Unlike Griffin, we are, in the present case, able to determine the basis of the trial court’s judgment in SouthTrust’s favor in the 2002 lawsuit. We have reviewed the record from the previous lawsuit and note that none of the grounds SouthTrust asserted in support of its motion for a summary judgment were grounds that were personal to it, as opposed to the employees through whom it would have acted in committing the alleged torts. Instead, it appears that the summary judgment was entered in SouthTrust’s favor based on Thompson’s failure to establish a genuine issue of material fact that South-Trust, acting through its employees, committed the torts alleged. Thus, the considerations that counseled against allowing the defendants in Griffin to claim the benefit of the previous judgment in favor of their principal are not present in this case.

Because the adjudication in the previous lawsuit in SouthTrust’s favor was based not on defenses that were personal to SouthTrust, but upon defenses that were applicable to the employees, Turner and Nicholson, through whom SouthTrust acted, Turner and Nicholson are in privity with SouthTrust with regard to that adjudication. As a result, the trial court did not err when it entered a summary judgment in Turner’s and Nicholson’s favor on the basis of their affirmative defense of res judicata.

IV. Conclusion

Based on the foregoing, we affirm the trial court’s judgment in favor of South-Trust, Turner, and Nicholson.

AFFIRMED.

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

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

      . The facts set forth herein are gleaned from the record, which we have considered in the light most favorable to Thompson, the party against whom SouthTrust, Turner, and Nicholson sought the summary judgment at issue in this appeal. See Hurst v. Alabama Power Co., 675 So.2d 397, 398 (Ala.1996).

      . The record before the trial court did not include the record from the 2002 lawsuit. SouthTrust, Turner and Nicholson brought to the trial court's attention, however, the fact that the pleadings and judgment of the trial court from the 2002 lawsuit were "on file with this [cjourt.” We may assume that, when the trial court in the present case considered the defenses of res judicata and collateral estoppel, it took judicial notice of the record in the 2002 lawsuit. Thompson did not challenge the defendants’ request that the nial court refer to the record from the 2002 lawsuit; nor has he challenged that request in his briefs to this court.
      Furthermore, as noted, the judgment in the 2002 lawsuit was affirmed by this court in Thompson v. SouthTrust Bank, [Ms. 2040509, Sept. 9, 2005] 954 So.2d 5 (Ala.Civ.App.2005) (table). This court can and does take judicial notice of the record from the 2002 lawsuit for purposes of addressing the res judicata issue presented here.

      . Because we hold that the trial court properly entered a summary judgment in South-Trust's favor on its affirmative defense of res judicata, we do not reach the question of the propriety of the summary judgment in South-Trust’s favor on its affirmative defense of collateral estoppel.

      . Restatement (Second) of Judgments § 51(l)(a) (1982) states:
      “A judgment against [an] injured person that bars him from reasserting his claim against the defendant in the first action extinguishes any claim he has against the other person responsible for the conduct unless ... [t]he claim asserted in the second action is based upon grounds that could not have been asserted against the defendant in the first action....”

      . The trial court’s summary judgment in favor of Turner and Nicholson was based solely on the ground of res judicata. No issues were presented to the trial court, and none have been presented to this court on appeal, as to whether claims of the nature asserted here against a bank’s employees by a prospective borrower are cognizable under Alabama law.


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    ALABAMA MUNICIPAL AND ENVIRONMENTAL ENGINEERS, INC. v. SLAUGHTER CONSTRUCTION COMPANY, INC.
    2050007.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2007.

      Micheál S. Jackson and R. Wesley Shaw of Beers, Anderson, Jackson, Patty & Van Heest, P.C., Montgomery, for appellant.
    Robert A. Wills of Wills & Simon, Bay Minette, for appellee.
   MURDOCK, Judge.

Alabama Municipal and Environmental Engineers, Inc. (“AME”), appeals from a judgment of the Baldwin Circuit Court in favor of Slaughter Construction Company, Inc. (“Slaughter”), following a bench trial. We reverse.

Pursuant to Ala.Code 1975, Title 39, the Utilities Board' of the City of Bay Minette (“the Board”) solicited bids for a one-year contract for the rehabilitation of existing manholes (“the contract”). The Board hired AME to prepare the specifications for the contract (“the contract specifications”), and to gather, rank, and forward bids to the Board, along with a recommendation as to which company submitting a bid should be awarded the contract. The ultimate decision regarding which company should receive the contract rested solely with the Board.

The contract specifications did not call for the rehabilitation of a specific number of manholes; instead, the contract specifications allowed for the Board to determine if and when manholes required rehabilitation. The contract specifications allowed the contract period to be extended to up to three years from the bid date. The contract specifications called for the rehabilitation of manholes using a cementitious process, an epoxy process, or a fiberglass process, with the Board making the decision as to the process to be used on a manhole-by-manhole basis, after the award of the contract. Thus, the contract specifications required that companies submitting bids be able to work with all three types of materials, and the bids submitted had to include costs for all three.

Section 12 of the contract specifications concerned the rehabilitation of manholes using the epoxy process. Section 12.02 provided:

“12.02 QUALITY ASSURANCE
“C. The manhole rehabilitation contractor shall provide evidence and preferences for having successfully installed resin based liners in at least 750 manholes and must have at least five (5) years experience in using the products specified in this specification. The product must also have been installed in at least 10,000 manholes during the last ten (10) years and have had at least 3000 manholes successfully installed for a period of five (5) years or longer. Certification of compliance with these requirements shall be included with the bid proposal.”

On May 25, 2004, the day bids were due, AME received three bids. Staggs Environmental Construction (“Staggs”) submitted a bid in the amount of $82,464; Slaughter submitted a bid in the amount of $89,200.04; and Suncoast Infrastructures, Inc., submitted a bid in the amount of $107,749.

On May 27, 2004, Slaughter sent a letter of protest to AME in which it complained that Staggs’s bid did not comply with the contract specifications. Slaughter’s letter stated:

“We write in regard to the bids which were received on the above referenced project in Bay Minette, AL on May 25th, 2004.
“Paragraph 12.02.C of the contract specifications which is under the heading of Manhole and Wet Well Rehabilitation (Epoxy/Resin Based) states as follows ‘The manhole rehabilitation contractor shall provide evidence and references for having successfully installed resin based liners in at least 750 manholes and must have at least five (5) years experience in using the products specified in this specification. The product must also have been installed in at least 10,-000 manholes during the last ten (10) years and have had at least 3000 manholes successfully installed for a period of five (5) years or longer. Certification of compliance with these requirements shall be included with the bid proposal (emphasis added)’.
“Staggs Environmental Construction, Inc. (Staggs) submitted in its bid a certification letter written by Stephen’s Technologies, Inc. (Stephens) which is somewhat vague and confusing as to whether Stephens actually meets the manufacturers product requirements of 10,000 manholes installed during the last ten (10) years. Stephens clearly indicates though in its letter (and also Staggs by submitting the letter) that Staggs as the rehabilitation contractor does not meet the performance requirement of having installed liners in 750 manholes and five (5) years of experience as an applicator of the epoxy products.
“Staggs bid is therefore non-responsive because:
“1.) Staggs clearly will not be able to provide evidence and references for having successfully installed resin based liners in at least 750 manholes and having at least five (5) years experience. No other conclusion can be reached from Stagg’s attempt via Stephen’s letter to circumvent the experience requirements by substituting the presence of a factory supplied representative in lieu of the actual experience required of Staggs under the project specifications.
“2.) The Stephen’s letter is inadequate as a certification of compliance of meeting the requirements of the bid specifications. It is vague in its declarations and doesn’t specifically address meeting the re- . quirements of paragraph 12.02C.
“The bid submitted by our firm, Slaughter Construction Company, Inc. includes a certification clearly referencing paragraph 12.02.C and certifies unambiguously that our product, SprayWall has been installed in at least 10,000 manholes during the last ten (10) years and has been installed in at least 3000 manholes during the last five (5) years. Additionally we stand ready as the contractor to provide evidence that we have successfully installed resin based liners in at least 750 manholes and that we have at least five (5) years experience in using the product as is required by specification paragraph 12.02C.
“The bid documents state that ‘The award of the Contract, if it be awarded, will be by the Owner to the lowest responsible Bidder whose Proposal shall comply with all the requirements necessary to render it formal.’ Stagg’s bid contains material deficiencies which are not informalities which can or should be waived. It is clearly non-responsive. The bid by our firm does comply in every aspect with the requirements of the bid and we request that we be awarded the contract as the lowest responsible bidder on this bid.”

AME was not satisfied with the certification letter that Staggs submitted with its bid. AME undertook to determine whether Staggs did, in fact, possess the experience with epoxy-based liners for which the contract specifications called, as well as to obtain information on the epoxy product Staggs intended to use if awarded the contract. AME became satisfied that Staggs met the experience requirements of section 12.02C after reviewing a letter from Staggs dated June 22, 2004, indicating that it would use a subcontractor for the epoxy-based liners that met the experience requirements of section 12.02C. AME became satisfied that Staggs met the product requirements of section 12.02C after it became aware that Staggs would be using an epoxy that was manufactured by New Life Coatings.

Thereafter, AME sent the bid materials to the Board and recommended to the Board that it award the contract to Staggs as the lowest responsible bidder. The Board, after reviewing AME’s recommendations, met on June 28, 2004, and decided to award the contract to Staggs. A representative of Slaughter appeared at the Board’s August meeting to express its objections to the awarding of the contract to Staggs. The contract with Staggs was executed on August 20, 2004.

On November 10, 2004, Slaughter sued AME. Slaughter alleged that AME had improperly recommended Staggs as the lowest responsible bidder to the Board, in spite of the fact that Staggs’s bid did not comply with the contract specifications. Pursuing a tort claim, Slaughter alleged that it had been damaged as a proximate result of its reliance on AME’s representations and its contract specifications, and by AME’s failure to follow the contract specifications that it had prepared when it recommended Staggs as the lowest responsible bidder. Slaughter claimed damages based on lost profits, bid-preparation expenses, and the cost of litigation.

The trial court held a bench trial on July 6, 2005. At trial, Slaughter submitted an exhibit that set forth the bases of the compensatory damages it sought. Through that exhibit, Slaughter argued that it was entitled to $11,630 for lost profits, $4,662.50 in bid-preparation expenses, $80 for the purchase of the bid documents, and $180 in travel expenses. AME objected to the exhibit because, it argued, lost-profit damages are too speculative to be awarded and neither lost profits nor bid-preparation expenses are recoverable in actions brought under the Competitive Bid Law. The trial court overruled AME’s objection.

Bobby Slaughter, Slaughter’s president and owner, testified that Slaughter relied on the contract specifications that AME prepared and adhered to the requirements of the contract specifications. He testified that, had it not done so, it could have submitted a lower bid. He also testified that, had AME enforced all of the requirements of the contract specifications, Slaughter would have been awarded the contract, unless the Board decided to reject all of the bids.

After Slaughter rested its case, AME moved for a judgment as a matter of law, arguing that Slaughter could not pursue a tort claim against it because the only relief allowed under the Competitive Bid Law is an injunction prohibiting the execution of a contract that is awarded in violation of the Competitive Bid Law. Slaughter responded that its action was brought pursuant to the tort of fraud, and that, under Aabama Supreme Court precedent, such an action is allowed in circumstances such as those presented in this case. Thus, it argued, its action was not barred by the fact that the Competitive Bid Law provides only for an injunctive remedy. The trial court denied AME’s motion.

Greg Thompson, one of AME’s employees, testified at trial on AME’s behalf. He indicated that, when drafting the contract specifications, AME knew that prospective bidders would rely on the contract specifications when preparing their bids. He admitted that the language of section 12.02C of the contract specifications was mandatory and that he had not been satisfied by the certification letter that Staggs submitted with its bid pursuant to that section. He also admitted that the New Life Coatings epoxy material that Staggs intended to use in performing the contract did not meet two of the physical requirements listed in the contract specifications and was not an approved product under the contract specifications. Although the contract specifications provided a process by which a bidder could obtain approval to use an alternative product before submission of its bid, Staggs did not follow that process to obtain approval for the epoxy material it intended to use.

AME renewed its motion for a judgment as a matter of law at the close of the evidence, stating the same basis as its previous motion for a judgment as a matter of law. The trial court denied AME’s motion.

On August 18, 2005, the trial court entered a judgment in Slaughter’s favor, awarding it $3,071.25 in compensatory damages and $2,000 in attorney fees. The trial court did not set forth any findings of fact in its order. AME appeals.

AME argues that Aa.Code 1975, § 39-5-4, prescribes the sole remedies available to an unsuccessful bidder under the Competitive Bid Law, and that, except as allowed by § 39-5-4, an unsuccessful bidder cannot pursue a claim for money damages. We agree.

Section 39-5-4 states as follows:

“The Attorney General, a bona fide unsuccessful or disqualified bidder, or any interested citizen may maintain an action to enjoin the letting or execution of any public works contract in violation of or contrary to the provisions of this title or any other statute and may enjoin payment of any public funds under any such contract. In the case of a successful action brought by a bidder, reasonable bid preparation costs shall be recoverable by that bidder. The action shall be commenced within 45 days of the contract award.”

“The purpose of statutory or charter provisions requiring municipal corporations to let contracts on competitive bidding after notice, is to secure economy and protect the citizens and taxpayers of the municipality from fraudulent favoritism in letting such contracts.” Carson Cadillac Corporation v. City of Birmingham, 282 Ala. 312, 316, 167 So. 794, 798 (1936) (internal quotation marks and citations omitted). Thus, “[t]he Competitive Bid Law was enacted for the benefit of the public, not for the benefit of the unsuccessful bidder,” TFT, Inc. v. Warning Systems, Inc., 751 So.2d 1238, 1247 (Ala.1999) (emphasis added), and it “does not confer on a bidder any right enforceable at law or in equity,” Townsend v. McCall, 262 Ala. 554, 558, 80 So.2d 262, 265 (1955).

In keeping with the Competitive Bid Law’s purpose, the remedy available to disappointed bidders is one that vindicates the public interest in protecting the public coffers, not one that is focused on the vindication of private interests and the interests of disappointed bidders. In Jenkins, Weber and Associates v. Hewitt, 565 So.2d 616, (Ala.1990), the plaintiff company was the second lowest bidder on a contract for the sale and installation of a computer processing system. The contract, however, was awarded to the fourth lowest bidder. The plaintiff company and two individuals brought an action, purportedly under the Competitive Bid Law, seeking monetary relief. On appeal, following the entry of a summary judgment against the plaintiffs, our Supreme Court held that the Competitive Bid Law does not provide for the remedy that the plaintiffs sought:

“[The plaintiffs’] complaint, as amended three times, did not seek injunctive relief pursuant to § 41-16-31, but rather claimed monetary damages.
“We find nothing in the legislative history of § 41-16-31 nor in the cases interpreting that statute that allows an unsuccessful bidder to sue for monetary damages. In Urban Sanitation Corp. v. City of Pell City, 662 F.Supp. 1041, 1044 (N.D.Ala.1986), a federal district court interpreting that statute stated:
“ ‘There is no indication in this statute, however, that an unsuccessful bidder has any right or expectancy to insist upon the award of a contract. To the contrary, the statute is carefully crafted to limit the remedy to “enjoining] execution of any contract entered into in violation of the provisions of this article.” When the statute is unambiguous, its expressed intent must be given effect and there is no room for construction.’
“(Citation omitted.)”

Jenkins, Weber and Associates, 565 So.2d at 617-18 (footnote omitted).

In the present case, as in Jenkins, the underlying basis of Slaughter’s cause of action against AME is Slaughter’s contention that it was the lowest responsible bidder and that it, rather than Staggs, should have been awarded the contract by the Board. Although Slaughter couches its cause of action as sounding in tort rather than as a violation of the Competitive Bid Law, the gravamen of its argument rests firmly on the Competitive Bid Law’s requirement that certain public contracts, such as the one at issue in this case, be awarded only to the lowest responsible bidder.

For this reason, we find that the Competitive Bid Law governs Slaughter’s cause of action in the present case against AME. As a disappointed bidder that believed the contract at issue in this case should not have been awarded to Staggs, Slaughter’s statutorily-prescribed remedies were to “maintain an action to enjoin the letting or execution” of the contract and, if successful in obtaining that injunction, to seek an award of its bid-preparation costs.

Spring Hill Lighting & Supply Co. v. Square D Co., 662 So.2d 1141 (Ala.1995), upon which Slaughter relies, is distinguishable. In Spring Hill, the plaintiff was a parts supplier that had agreed to supply an electrical substation to a subcontractor of the successful bidder on a large project for the Alabama State Docks Department. Spring Hill, 662 So.2d at 1143. After several individuals and entities, including an employee of the Alabama State Docks Department, allegedly caused the subcontractor to cancel its order with the plaintiff, the plaintiff sued the individuals and entities for money damages, alleging tort claims for fraud, intentional interference with business relations, and conspiracy. Id. at 1143-45. The trial court entered a summary judgment in favor of the defendants, finding that the Competitive Bid Law did not allow causes of action seeking money damages. Id. On appeal, our Supreme Court reversed, holding that the plaintiff parts supplier was entitled to pursue intentional tort claims against the defendants. Id. at 1147-51.

The plaintiff in Spring Hill was not a disappointed bidder and its cause of action did not arise from an alleged circumvention of the competitive bidding process. In the present case, however, Slaughter is a disappointed bidder, and its cause of action does derive from an alleged circumvention of the competitive bidding process.

If our holding today were to be otherwise than it is, the limitation of remedies prescribed by the Competitive Bid Law, could, and, no doubt regularly would be, circumvented through the use of allegations by disappointed bidders that decisions by bidding authorities and/or their agents in violation of the Competitive Bid Law amounted to intentional tortious conduct. When the gravamen of the offense is a violation of the bid law, the limitation of remedies imposed by statute must be applicable regardless of whether the disappointed bidder uses evidence of the violation to contend that the bidding authority decided to act in violation of the Competitive Bid Law in advance (i.e., before or during the solicitation of bids, as is alleged here) or after the receipt and opening of bids.

Because we conclude that Slaughter’s action was governed by the Competitive Bid Law and that its remedy was limited to filing an action seeking to enjoin the awarding of the contract at issue to Staggs (and, if successful, to recover its bid-preparation expenses), we reverse the judgment of the trial court and remand the cause for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN and BRYAN, JJ., concur.

CRAWLEY, P.J., and THOMPSON, J., concur in the result, without writing.

      . Because the contract for which the Utility Board sought bids was for a "public work” as defined by Ala.Code 1975, § 39-2-1(5), the bidding process was controlled by Title 39 of the Code of Alabama 1975. See Ala.Code 1975, §§ 39-1-5, 41-16-50(a). Title 39, combined with § 41-16-20 et seq., shall hereinafter be referred to as "the Competitive Bid Law”.

      . Although the complaint does not delineate the species of tort alleged, both parties, in their appellate briefs, agree that, through its complaint, Slaughter sought recovery on the basis of the tort of fraudulent misrepresentation. Both parties agree that the theory of Slaughter's cause of action was that AME misrepresented in its contract specifications that bidders’ certifications of the quality-assurance criteria set forth in section 12.02 of the contract specifications were required to be submitted with each bid.

      . The portion of the Competitive Bid Law at issue in Jenkins, Weber & Associates is found in Chapter 16 of Title 41, which deals with public contracts other than those dealt with in Title 39, which is applicable to the present case. The remedial provisions in Title 41 (§ 41-16-31 and § 41-16-61) are identical to one another and are substantially similar to the remedial provision applicable to the present case, § 39-5-4. Sections 41-16-31 and 41-16-61 state:
      "Any taxpayer of the area within the jurisdiction of the awarding authority and any bona fide unsuccessful bidder on a particular contract shall be empowered to bring a civil action in the appropriate court to enjoin execution of any contract entered into in violation of the provisions of this article.”
      The one notable difference in §§ 41-16-31 and 41-16-61, on the one hand, and § 39-5-4, on the other, is that the latter specifically allows for recovery of limited monetary damages in the form of “bid preparation costs” if the plaintiff is successful in obtaining injunc-tive relief.

      . Because we resolve this appeal in this manner, we do not reach AME’s other contentions.


text:
    Tanjula Moncrief SANKEY v. Derrick E. SANKEY.
    2050001.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2007.

      Jacob A. Dubin of Keith & Hamm, P.C., Montgomery, for appellant.
    James D. Hamlett, Montgomery, for ap-pellee.
   MURDOCK, Judge.

Tanjula Moncrief Sankey, the mother, appeals from a Montgomery Circuit Court judgment transferring custody of her two children to Derrick E. Sankey, the father. The children at issue are a daughter, who was born in October 1996, and a son, who was born in February 2000.

In April 2002, the Montgomery Circuit Court entered a divorce judgment awarding the parties joint legal custody of their children, awarding the mother primary physical custody of the children, and awarding the father visitation. After the entry of the divorce judgment, the parties continued to reside in Montgomery, though the mother changed residences on one occasion. In February 2004, the mother and the children moved to Stock-bridge, Georgia. In July 2004, they moved to Newnan, Georgia, which was closer to the father’s home than Stockbridge. The father, who continued to reside in Montgomery, did not object to the mother’s move to Stockbridge or her subsequent relocation to Newnan.

In November 2004, the mother filed a petition to modify the father’s visitation rights because she planned to move from Georgia to Wichita Falls, Texas. The mother alleged that she planned to marry a member of the United States Air Force who was about to be reassigned to Wichita Falls. In áddition to requesting a modification of the father’s visitation rights, the mother requested that the trial court hold the father in contempt of court because he allegedly made negative comments about her to the children.

The father filed an answer denying the material allegations contained in the mother’s petition. He also objected to the mother’s planned relocation, as required under the Parent-Child Relationship Protection Act, Ala.Code 1975, § 30-3-160 et seq. (“the Relationship Protection Act”). The father alleged that the relocation of the children was not in their best interests. Further, he requested that the trial court hold the mother in contempt for allegedly violating the divorce judgment by speaking negatively to the children about him.

In May 2005, after an ore tenus proceeding, the trial court entered a 13-page order containing detailed findings about how the mother had not acted in the best interest of the children while they were in her custody and how she had interfered with the father’s relationship with the children. The trial court determined that the mother had not “met her burden to overcome the presumption that the move to Texas is not in the children’s best interest.” See Ala. Code 1975, § 30-3-169.4. Also, the trial court, citing T.B. v. C.D.L., 910 So.2d 794 (Ala.Civ.App.2005), and Ex parte McLendon, 455 So.2d 863 (Ala.1984), stated that even if the mother had met her burden of proof and the burden of proof had shifted to the father, the father had “clearly demonstrated that a change in custody ... would far outweigh the disruptive effects of such a change and that such a change in custody will clearly materially promote the children’s best interests.” The court awarded the father primary physical custody of the children, ordered the mother to pay child-support, and awarded the mother visitation.

The mother filed a postjudgment motion in which she argued that several of the trial court’s findings of fact were not supported by the evidence. She requested that the trial court vacate its judgment and that it enter an order leaving custody of the children with her. After a hearing on the mother’s postjudgment motion, the trial court denied her motion, stating, in part, that it had “determined from the evidence, testimonial and documentary, that the best interests of the children would be served and with a minimum of disruption to the children by changing physical custody to the father pursuant to the McLendon standard.” The mother appeals.

On appeal, the mother contends that the Relationship Protection Act is unconstitutional under both the United States Constitution and the Alabama Constitution. The mother never presented these arguments to the trial court, however, and we therefore do not consider them. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992); see also M.R. v. State Dep’t of Human Res., 587 So.2d 416, 417 (Ala.Civ.App.1991) (holding that constitutional issues cannot be raised for the first time on appeal).

The mother also contends that the trial court abused its discretion by changing physical custody of the children to the father because, she says, the father had “unclean hands.” The mother did not file a pleading alleging that the father should not be awarded custody of the children because he had unclean hands. Likewise, she did not argue the doctrine of unclean hands at trial, and she did not raise the issue of unclean hands in her post-judgment motion. Thus, we cannot consider her unclean-hands argument. See Andrews, supra.

The only arguments by the mother that are properly presented to this court are whether the evidence supports the trial court’s determinations that the mother failed to meet her initial burden of proof under the Relationship Protection Act and whether the father met his burden of proof under Ex parte McLendon. As to the first argument, our legislature has stated that the Relationship Protection Act is intended to “promote[] the general philosophy in this state that children need both parents, even after a divorce, established in Section 30—3—150[, Ala.Code 1975].” Ala.Code 1975, § 30-3-160. It is toward this central purpose of the Relationship Protection Act that § 30-3-169.4 provides for “a re-buttable presumption that a change of principal residence of a child is not in the best interest of the child” and that the relocating parent has “the initial burden of proof on the issue.” As noted above, the trial court concluded that the mother failed to satisfy her initial burden of proof and that the mother’s failure to meet her burden would justify a change of custody without any consideration of the so-called McLendon standard.

The trial court further stated, however, that even if the mother had rebutted the presumption established in § 30-3-169.4, it still would have ordered the change of custody in favor of the father. In relation to this portion of the trial court’s analysis, the trial court stated as follows:

“Although ... § 30-3-169.4 specifically states the standard for the Court under the ... Relationship Protection Act is the ‘best interest of the child,’ the Court of Civil Appeals has held that the standard enunciated in Ex parte McLendon, 455 So.2d 863 (Ala.1984) is the correct standard. (See T.B. v. C.D.L., [910 So.2d 794 (Ala.Civ.App.2005)])
Therefore, in reaching the custody decision set forth below in compliance with § 30-3-169.3, this Court has done so pursuant to the more stringent McLen-don standard.”

Section 30-3-169.3(a), Ala.Code 1975, states:

“In determining whether a proposed or actual change of principal residence of a minor child should cause a change in custody of that child, a court shall take into account all factors affecting the child, including, but not limited to, the following:
“(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate with the child and with the non-relocating person, siblings, and other significant persons or institutions in the child’s life.
“(2) The age, developmental stage, needs of the child, and the likely impact the change of principal residence of a child will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
“(3) The increase in travel time for the child created by the change in principal residence of the child or a person entitled to custody of or visitation with the child.
“(4) The availability and cost of alternate means of communication between the child and the non-relocating party.
“(5) The feasibility of preserving the relationship between the non-relocating person and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
“(7) The degree to which a change or proposed change of the principal residence of the child will result in uprooting the child as compared to the degree to which a modification of the custody of the child will result in uprooting the child.
“(8) The extent to which custody and visitation rights have been allowed and exercised.
“(9) Whether there is an established pattern of conduct of the person seeking to change the principal residence of a child, either to promote or thwart the relationship of the child and the non-relocating person.
“(10) Whether the person seeking to change the principal residence of a child, once out of the jurisdiction, is likely to comply with any new visitation arrangement and the disposition of that person to foster a joint parenting arrangement with the non-relocating party.
“(11) Whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the change of principal residence of the child and the child, including, but not limited to, financial or emotional benefit or educational opportunities.
“(12) Whether or not a support system is available in the area of the proposed new residence of the child, especially in the event of an emergency or disability to the person having custody of the child.
“(14) The stability of the family unit of the persons entitled to custody of and visitation with a child.
“(15) The reasons of each person for seeking or opposing a change of principal residence of a child.”

Prior to the enactment of the Relationship Protection Act, our Supreme Court stated as follows in Ex parte McLendon:

“ ‘[T]he party seeking modification [must] prove to the court’s satisfaction that material changes affecting the child’s welfare since the most recent decree demonstrate that custody should be disturbed to promote the child’s best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child.’ ”

455 So.2d at 865-66 (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)).

The judgment was issued based upon ore tenus proceedings. Where the trial court’s findings are based on evidence received ore tenus,

‘[o]ur standard of review is very limited.... A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, ... and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow.’ ”

Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994) (citations omitted) (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)). “It is our duty to affirm the trial court’s judgment if it is fairly supported by credible evidence, ‘regardless of our own view of that evidence or whether we would have reached a different result had we been the trial judge.’ ” Griggs v. Griggs, 638 So.2d 916, 918-919 (Ala.Civ.App.1994) (quoting Young v. Young, 376 So.2d 737, 739 (Ala.Civ.App.1979)).

Much of the same evidence supports both the trial court’s determination that the mother failed to rebut the presumption under § 30-3-169.4 that relocation of the children to Texas would not be in their best interest and its determination that, even if the mother had rebutted that presumption, the father met his burden of proof under Ex parte McLendon. The mother presented testimony that she was the children’s primary caregiver; that, as of the time of trial, she had remarried; and that she had visited the school that the children would attend in Wichita Falls. The mother presented no evidence about the quality of the Wichita Falls school, as compared to the schools in Newnan or Montgomery. Likewise, the mother presented no evidence about the type of relationship the children had with the mother’s husband. Other than inferences that the trial court could have drawn, but was not required to draw, from the fact that the mother had been the children’s primary caregiver, there was no evidence that the children’s interests would be furthered by the proposed relocation to Wichita Falls.

In the three years between the parties’ divorce and the time of trial, the mother has moved on three occasions and the parties’ daughter, the only school-age child at the time of the respective moves, has attended three different schools. The record would support findings that the father has a close relationship with the children; that the children were always excited to see him; and that they sometimes did not want to return to their mother after visitation. Furthermore, the record would support findings (1) that the father encourages and supports the children’s relationship with the mother, but that the mother consistently attempts to harm the father’s relationship with the children, and (2) that the mother has entertained overnight guests of the opposite sex when the children were with her. Also, the record would support findings that, based on the behavior of the mother since the entry of the divorce judgment in 2002, the quantity and quality of the children’s contact with both parents would be better served by the children remaining in Alabama with the father, rather than allowing the mother to relocate the children a fourth time.

We further note that there was evidence that the mother acted inappropriately in the children’s presence. For example, as the trial court specifically found in its judgment, on one occasion the father contacted

“the Opelika Police Department for assistance in insuring that [his] return of the children to the [mother] was smooth and/or uneventful.
“Officer Preston met the [father] and the children at the last Opelika exit, ... arriving before the [mother]. The [mother] became angry when she saw a police officer with the [father]. Officer Preston’s undisputed testimony was that the [mother] jerked the children out of the [father’s] vehicle and put them in her vehicle while the children were attempting to say goodbye to their father. She then walked back to continue her angry, loud outburst directed to both Officer Preston and the [father], which included such statements as ‘We’re moving to Texas soon’ and ‘You’ll never see your Daddy again.’ Officer Preston stated that the [mother] was so loud that it is likely that the children heard, as well as watched, their mother’s out-of-control behavior.”

In addition, it is undisputed that the children have close relationships with both paternal and maternal relatives who reside in the Montgomery area and that those relationships would suffer as a result of a relocation to Texas. In particular, we note that the father resides on the same property as the children’s paternal grandparents, though not in the same home, and that the children would be returning to the home where they lived for the last few years of the parties’ marriage. Also, the trial court specifically found that the children “have maintained school and church friendships with other children in Montgomery with whom they interact of a regular basis.” By contrast, the trial court noted that it could

“find no evidence that a move to Wichita Falls, Texas, will materially promote the children’s educational, cultural, or psychological well being. Indeed, it appears that quite the contrary is the case. The children will be removed from all persons and things which are familiar to them and placed in a setting with only the [mother] for support. There was no evidence that these children have a relationship, parental or otherwise, with the [mother’s] new husband and no evidence that the new husband is capable of fostering any such relationship.
“... [I]t was undisputed that the children do have a close relationship with [the father’s wife], their stepmother, and her two sons.
“With either move, the children will be uprooted from their Newnan, Georgia, home. The lesser of the disruptions will be to place the children in the custody of their father where they will have familiar persons, familiar homes and familiar things for support and in which to grow and develop. To allow the children to relocate to Texas where they have no support, no family, no emotional ties and no improved quality of life is not in their best interests, and such a move cannot overcome the disruption to them. In addition, it appears likely that the [mother’s] behavior pattern regarding her continuing interference with visitation and her lack of encouragement in promoting the father-child relationship will be exacerbated by a move to Texas.
“... [A] change in physical custody to the [father] will materially promote the children’s best interests, and the benefits of such a change to the [father’s] custody will outweigh any disruption caused by the change in custody.”

The father, who is a deacon for his church, is employed as a youth services aid for the Autauga Department of Youth Services. He is a favorite counselor of the children who are at the facility; the children report that he is both fair and responsive to their needs. The father works for Youth Services from 6:00 a.m. until 2:00 p.m., Sunday through Thursday. At the father’s request, Youth Services had made adjustments to his work schedule to accommodate his visitation with his children.

The father also works part-time for O’Reilly Auto Parts. However, he arranged his work schedule so that it did not interfere with visitation with his children. The father testified that he intended to quit his job at O’Reilly’s if the court awarded him custody of the children. He stated that the family could still “make it financially” if he quit his part-time job.

The father is married, and his wife has one son from a previous marriage. The father’s current wife has custody of both this son and a male cousin; those children are 10 years old and 11 years old, respectively. The testimony at trial reflects that the father’s children treat the father’s wife “like she is their mother” and that the father has a good relationship with his wife’s son and cousin. The wife’s son and cousin treat the father’s children like they are siblings. The children each have a bedroom in the father’s home.

Based on the foregoing, and the presumption that attends the ore terms rule, we cannot conclude that the trial court erred as to the modification of custody. The trial court’s judgment is therefore due to be affirmed.

AFFIRMED.

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

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

      . Although the mother and the children reside in Georgia, § 30-3-169.9(b), Ala.Code 1975, states:
      "Where the parties have been awarded ... joint legal custody ... of a child as defined in Section 30-3-151, and at least one parent having ... joint legal custody ... of a child continues to maintain a principal residence in this state, the child shall have a significant connection with this state and a court in fashioning its judgments, orders, or decrees may retain continuing jurisdiction under Sections 30-3B-202 to 30-3B-204, inclusive, even though the child’s principal residence after the relocation is outside this state.”

      . In addition to her visitation-modification request, the mother pleaded that the father had violated the divorce judgment by not making certain payments for the children’s health expenses. She asserted that this was grounds to hold him in contempt, but she never pleaded or argued that it was grounds which would prevent a custody award to him.

      . Section 30-3-150, Ala.Code 1975, states:
      “It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage.”

        . A majority of this court has expressed the view that the McLendon standard continues to be applicable to cases otherwise governed by the Relationship Protection Act. See Clements v. Clements, 906 So.2d 952 (Ala.Civ.App.2005); T.B. v. C.D.L., 910 So.2d 794 (Ala.Civ.App.2005). Recently, however, the author of this opinion expressed a contrary view. See Toler v. Toler, 947 So.2d 416 (Ala.Civ.App.2006) (Murdock, J., concurring specially). The issue of McLendon's continued viability in cases otherwise governed by the Relationship Protection Act is not presented in the present appeal. Also not presented in this appeal is the issue whether the trial court, in reliance upon this court's opinion in T.B. v. C.D.L., supra, improperly applied the McLendon standard in relation to the other factors prescribed in § 30-3-169.3. Neither party takes issue with the dual analysis in which the trial court engaged. In particular, the mother does not challenge the view embodied in the trial court’s analysis that, had the mother met her burden of proof under § 30-3-169.4 (that is, had the mother rebutted the presumption that a change of the child’s principal residence would not be in the child’s best interest), the trial court was then to examine the case under the McLendon standard rather than based upon all of the factors prescribed in § 30-3-169.3. We therefore analyze the case using the same analytical approach as was used by the trial court.

      . In the mother's McLendon argument, she essentially requests that this court reweigh conflicting testimony and that we make credibility determinations that would be contrary to those findings that would support the trial court's judgment. The mother also makes some assertions that are not supported by the record.


text:
    COOSA VALLEY HEALTH CARE v. Violet JOHNSON.
    2040728.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2007.

      Howard B. Warren of Turnbach, Warren, Roberts & Lloyd, P.C., Gadsden, for appellant.
    Thomas N. Young of Young, Wollstein, Jackson, Whittington, Robinson & Russell, LLC, Anniston, for appellee.
   MURDOCK, Judge.

Coosa Valley Health Care (“Coosa Valley”) appeals from a judgment of the Eto-wah Circuit Court determining that Violet Johnson was not barred by Ala.Code 1975, § 25-5-51, from receiving workers’ compensation disability benefits. We dismiss the appeal as being from a nonfinal judgment.

In June 2004, Johnson was employed as a nursing assistant at Coosa Valley’s nursing-home facility. At that time, Coosa Valley had in effect a “buddy system lifting rule” that requires two employees to work together when turning, positioning, or lifting any resident. On June 18, 2004, Johnson injured her lower back when she attempted, without assistance, to lift a resident from a chair into his bed. Johnson admits that she lifted the patient without assistance, but she claims that her actions did not constitute a violation of the safety rule because of an exigent circumstance, namely that the resident was in immediate danger of falling and hurting himself.

Johnson promptly reported her injury to Coosa Valley. On June 23, 2004, Milleni-um Risk, Coosa Valley’s workers’ compensation risk manager, denied Johnson’s claim based on its determination that Johnson had violated a safety rule by lifting the resident without assistance.

In November 2004, Johnson filed this action seeking workers’ compensation benefits. Coosa Valley’s answer asserted, among other defenses, that Johnson was not entitled to disability benefits because she was guilty of misconduct or of violating a safety rule or policy as provided in § 25-5-51.

In February 2005, the trial court held a hearing on Johnson’s motion to compel Coosa Valley to pay temporary total disability benefits; the trial court heard argument and received documentary evidence, including transcripts of depositions and an affidavit, but it did not hear testimony. On February 14, 2005, the trial court entered an order granting Johnson’s motion to compel payment of benefits. This order did not state any findings of fact or conclusions of law and did not make any determination as to either the type or the amount of benefits payable to Johnson. On March 14, 2005, Coosa Valley filed a postjudgment motion requesting, among other things, that the trial court set forth findings of fact and conclusions of law.

On April 5, 2005, the trial court , entered an order setting forth findings of fact and determining that Coosa Valley failed to prove that Johnson had willfully violated a safety rule. Among other things, the April 5 order (1) ordered Coosa Valley to pay temporary-total-disability benefits from June 21, 2004, until the earlier of the final hearing on the matter or the date Johnson is released to return to work, (2) expressly reserved until the final hearing a ruling on medical- and legal-causation issues, insofar as those issues relate to whether Johnson is entitled to permanent-disability benefits, and (3) expressly reserved until a final hearing the taxing of costs and interest on unpaid installments of compensation. The April 5 order did not specify the amount of accrued benefits then due to Johnson or the amount of temporary benefits to be paid to Johnson from and after the April 5 order; nor did the April 5 order decide the issue whether Johnson was entitled to any permanent disability benefits.

On April 15, 2005, Coosa Valley filed a motion to alter, amend, or vacate the April 5, 2005, order. That motion requested, among other things, that the trial court enter a “final judgment on partial findings” so that the April 5 order could be appealed. On April 19, 2005, the trial court entered an order stating that “[t]he Judgment Order on partial finding of the Court dated April 5, 2005, is made Final for purpose of appeal.” Coosa Valley appeals, contending that the trial court erred in determining that Johnson did not willfully violate a safety rule.

Although neither party has raised the issue of this court’s jurisdiction over this appeal, we note that “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu. Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the appeal. See Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App.1979).

Our Supreme Court has defined a “final judgment” as

“a terminative decision by a court of competent jurisdiction which demonstrates there has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court. That is, it must be conclusive and certain in itself.... All matters should be decided; damages should be assessed with specificity leaving the parties with nothing to determine on their own.”

Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala.1976). “[T]he 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).

In Williams Power, Inc. v. Johnson, 880 So.2d 459 (Ala.Civ.App.2003), the trial court entered an award of temporary and permanent compensation benefits, including a specific amount of past-due benefits. As to past-due medical benefits, however, the trial court merely ordered “that the defendant ... shall reimburse the plaintiff for any and all medical expenses already paid by him,” without specifying an amount. 880 So.2d at 460. This court held that the trial court’s judgment was not final, reasoning as follows:

“ ‘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.” Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986). Further, the judgment must be conclusive and certain with all matters decided, including the assessment of damages with specificity for a sum certain determinable without resorting to extraneous facts.’
“Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990) (emphasis added). See, e.g., Moody v. State ex rel. Payne, 351 So.2d 547, 551 (Ala.1977) (‘Where the amount of damages is an issue ... the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages.’). In this case, the amount of damages pertaining to past medical expenses was not specified by the trial court, and, thus, the appeal has been taken from a nonfinal judgment.”

Williams Power, Inc., 880 So.2d at 461.

In International Paper Co. v. Dempsey, 844 So.2d 1236 (Ala.Civ.App.2002), the trial court ruled that the employee was entitled to “any accrued temporary total and/or permanent partial and/or permanent total [workers’] compensation benefits accrued to this day.” 844 So.2d 1236-37. This court noted that, among other things, the trial court’s judgment did not “set forth any specific amount” of accrued, temporary-disability benefits due to the employee. 844 So.2d at 1238. Accordingly, this court concluded that the trial court’s “order does not sufficiently ascertain and set forth the rights and obligations of the parties, and, therefore, ... is not sufficient to support [the employer’s] appeal to this court.” 844 So.2d at 1238.

In the present case, as in Williams Power, Inc., the trial court’s April 5 order does not specify the amount of previously paid medical benefits as to which Johnson may be entitled to reimbursement. Furthermore, as in International Paper Co., the trial court’s April 5 order does not specify the amount of Johnson’s accrued temporary benefits; nor does it specify the amount of temporary benefits payable to Johnson from and after the date of the order. For these reasons, the trial court’s April 5 order is not a final judgment.

In addition, the trial court’s April 5 order does not determine whether Johnson is entitled to permanent-disability benefits and, if so, in what amount. In DCH Regional Medical Center, this court held that the trial court’s decision to leave open the question of permanent disability did not prevent the trial court’s order from being a final judgment. We held, however, that trial court could not have determined the extent of the employee’s permanent disability at the time of the proceeding, because the employee had not yet reached maximum medical improvement, and that in retaining jurisdiction of the matter the court had exercised judicial economy. 571 So.2d at 1164-65.

Similarly in BE & K, Inc. v. Weaver, 743 So.2d 476 (Ala.Civ.App.1999), the trial court entered an extensive order addressing the employee’s entitlement to temporary-disability benefits and medical expenses, but failing to make a determination as to permanent-disability benefits. As in DCH Regional Medical Center, this court recognized that the circumstances in BE & K, Inc. fell within an exception to the rule requiring finality for purposes of appeal, in that the employee had not yet reached maximum medical improvement at the time of the proceedings, and therefore a determination as to any permanent disability could not be made at that time. 743 So.2d at 480. See also Mike Makemson Logging v. Colburn, 600 So.2d 1049 (Ala.Civ.App.1992).

Neither party to the present case has addressed the question whether Johnson had reached maximum medical improvement. The present case therefore does not fall within the exception to the rule requiring finality of judgment that was recognized in DCH Regional Medical Center, Mike Makemson Logging, and BE & K Inc. Thus, for this additional reason, the trial court’s April 5, 2005, order is not a final judgment that will support an appeal. See also International Paper Co., supra.

Based on the foregoing, Coosa Valley’s appeal is due to be dismissed.

APPEAL DISMISSED.

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

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

      . Section 25-5-51, Ala.Code 1975, provides, in part:
      ”[N]o compensation shall be allowed for an injury or death caused by the willful misconduct of the employee, by the employee’s intention to bring about the injury or death of himself or herself or of another, his or her willful failure or willful refusal to use safety appliances provided by the employer. ...”

      . The February 14 order provided only that ”[t]he Plaintiff's Motion to Compel Payment of Benefits is hereby granted.”

      . The trial court clearly intended its order for payment of accrued benefits to be immediately enforceable. The only issue in the case before us, however, is whether this court has jurisdiction over the attempted appeal of the trial court’s judgment. The lack of finality of that judgment is dispositive of that issue.