author: CRAWLEY, Presiding Judge. MURDOCK, Judge, THOMPSON, Judge,

text:
    LaWanda McDONALD v. LIGHAMI DEVELOPMENT COMPANY, L.L.C., and Jeff Light.
    2050572.
    Court of Civil Appeals of Alabama.
    Dec. 8, 2006.
    Certiorari Denied March 9, 2007 Alabama Supreme Court 1060450.

      Larry C. Moorer, Mobile, for appellant.
    C. Robert Gottlieb, Jr., Mobile, for ap-pellees.
   CRAWLEY, Presiding Judge.

LaWanda McDonald was visiting the apartment of a friend, Lena Boykin, when she fell on a walkway leading from Boy-kin’s apartment to the parking lot. McDonald sued Boykin’s landlord, Lighami Development Company, L.L.C., and the landlord’s vice president, Jeff Light, as well as two other defendants, alleging that their negligence and wantonness had caused her injuries. Lighami Development and Light answered and denied liability, conducted limited discovery, and then moved for a summary judgment.

The trial court entered a summary judgment in favor of Lighami Development and Light and made that judgment final pursuant to Rule 54(b), Ala. R. Civ. P. McDonald timely appealed to the Alabama Supreme Court. The supreme court transferred the case to this court pursuant to § 12-2-7(6), Ala.Code 1975. We affirm the judgment on the wantonness claim and reverse the judgment on the negligence claim.

The material facts were not in conflict. The evidence indicated that on December 26, 2002, McDonald and her friend, Adrian Mitchell, went to visit Lena Boykin at Boykin’s apartment. McDonald and Mitchell arrived in the early evening and departed at approximately midnight. Although it was not raining when the pair left, the ground was wet because it had rained earlier in the day. When they left Boykin’s apartment, McDonald and Mitchell walked on some concrete stepping stones in the parking area. Boykin cautioned them to be careful and to “watch [their] step” because, she said, it was dark, the ground was mushy, and the stepping stones were often slippery after a rain. When McDonald stepped on one of the concrete stepping stones, it shifted or sank in the mushy ground. McDonald lost her balance, fell, and broke her ankle.

In support of the defendants’ motion for a summary judgment, Light submitted his own affidavit stating that there is an oyster-shell parking lot for the tenants in front of Boykin’s apartment. The concrete stepping stones were once used as the parking pad for a garage that no longer exists. Light said that, before McDonald’s fall, he had not received any complaints “that there was a problem with the concrete stones embedded in the ground.” He stated that the stones appeared to him to have been “firmly embedded in the ground.”

Boykin testified by deposition that, before McDonald’s accident, she had left two telephone voice messages for Light and had spoken to him once, telling him that the stepping stones were broken and slippery and that the ground around the stepping stones was slippery in wet weather. She informed Light that she had sprained her ankle when her foot slipped into a crack in the stepping stones. Boykin did not say whether the “crack” into which her foot had slipped was the gap between two stepping stones or whether it was the fissure in a single broken stepping stone. She also did not say whether her sprain had occurred when the ground was mushy and the stones were wet after a rainfall. Boykin explained that when the weather was wet, the earth around the stepping stones “gets all mushy and slick.” Boykin testified that Light was aware of the wet and mushy conditions because, she said, on several occasions he had come by to pick up the rent from her when the ground was wet and mushy. Boykin said that Light responded to her complaints about the stepping stones by stating that he “would see about it.”

Standard of Review

Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Fla., 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d).

Negligence

The parties agree that McDonald’s injury occurred in a common area that tenants and their guests were entitled to use. In Hancock v. Alabama Home Mortgage Co., 393 So.2d 969, 970 (Ala.1981), the Alabama Supreme Court stated the rule of law applicable to this case:

“The law concerning a landlord’s liability for injuries incurred on the premises is twofold. While a landlord is liable only for injury incurred in the actual leased premises resulting from latent defects which are known to him at the time of the letting but are concealed from the tenant, he has the duty to maintain the common areas in a reasonably safe condition in order to avoid liability for injury to tenants or their guests. Allen v. Genry, 39 Ala.App. 281, 97 So.2d [8]28 (1957).”

Alabama cases “have long recognized the rule that ‘[a] landlord has the duty to maintain common areas in a reasonably safe condition in order to avoid liability for injury to a tenant or guest.’ ” Gentle v. Pine Valley Apartments, 631 So.2d 928, 932 (Ala.1994), quoting Campbell v. Valley Garden Apartments, 600 So.2d 240, 241 (Ala.1992). See also Howard v. Lillco Corp., 920 So.2d 553, 556 (Ala.2005); Nayman v. Tracey, 599 So.2d 604, 606 (Ala.1992); Vick v. H.S.I. Mgmt., Inc., 507 So.2d 433 (Ala.1987); Mitchell v. Moore, 406 So.2d 347, 351 (Ala.1981); Hancock v. Alabama Home Mortgage Co., 372 So.2d 858, 859 (Ala.1979); and Mudd v. Gray, 200 Ala. 92, 93, 75 So. 468, 469 (1917). A landlord’s duty to tenants and their guests is to exercise reasonable care to discover and remedy any dangerous condition in common areas such as stairs and walkways under the landlord’s control. See Restatement (Second) of Torts § 360 (1965)(quoted in Hancock v. Alabama Home Mortgage Co., 372 So.2d at 859). Section 360, as quoted in Hancock, states:

“ A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risks involved therein and could have made the condition safe.’

372 So.2d at 858 (emphasis added). Comment F to § 360 of the Restatement, as quoted in Hancock, states:

“ ‘.... If the terms of the lease entitle the lessee to permit third persons to come upon the part of the land retained within the lessor’s control, it is immaterial whether they come as invitees of the lessee or as his licensees. It is the lessor’s business, as such, to afford his lessee facilities for receiving all persons whom he chooses to admit for any legitimate purpose. Therefore, a person who, as between himself and the lessee, is a licensee enters the land on a matter directly connected with the business of the lessor. He is, therefore, entitled to expect that the lessor will exercise reasonable care to discover and remedy any condition which makes his acceptance of the lessee’s license dangerous to him.’ ”

372 So.2d at 859 (emphasis added). See also Mudd v. Gray, 200 Ala. at 93, 75 So. at 469 (stating that “the authorities seem to be very generally agreed that it is the duty of the landlord to use reasonable care to keep in good repair and safe condition such reserved portions of the premises; and if he negligently fails to do so, and [a tenant’s guest] is injured on account of such defective or unsafe condition, while exercising due care, the lessor is responsible therefor”). See generally Allan E. Korpela, Annotation, Landlord’s Liability for Injury or Death due to Defects in Outside Walks, Drives, or Grounds Used in Common by Tenants, 68 A.L.R.3d 382, 410 (1976) (stating that “[t]he cases discussed throughout this annotation apparently all support ... the proposition that a landlord is liable for injury or death suffered as a result of defects in common outside walks, drives, or grounds retained under his control only if the landlord knew, or by the exercise of reasonable care would have known, of the defective condition causing the injury, sufficiently in advance of the injury so that he could have repaired the defect or given warning thereof’ (footnote omitted; emphasis added)).

In opposition to the defendants’ motion for a summary judgment, McDonald presented substantial evidence indicating that Light had constructive knowledge that the stepping stones were hazardous in wet weather. McDonald submitted Boykin’s deposition testimony indicating that, before McDonald’s injury, Boykin had Informed Light that the stepping stones were broken and slippery and that the ground around the stepping stones was mushy in wet weather. Boykin also stated that Light had personally observed the mushy condition of the ground around the stones in wet weather because, she said, on several occasions Light had come to pick up the rent from Boykin during or after a rainfall. Furthermore, Boykin informed Light that she had previously sprained her ankle when her foot slipped into a crack in the stepping stones. The foregoing evidence presents a question of fact as to whether, in the exercise of reasonable care, Light should have discovered and remedied the tendency of the stepping stones to move or shift in wet ground. Because McDonald presented substantial evidence indicating that Light had constructive notice that the stepping stones were hazardous in wet weather, she was not required to present evidence indicating that Light was on notice of the particular defect that caused McDonald’s injury. See Leydecker v. Brintnall, 158 Mass. 292, 298, 33 N.E. 399, 401 (1893) (holding that, when a tenant’s employee stepped on a brick in a common walkway, and the brick sank beneath him as a consequence of an overflow of water around the bricks, and the employee fell and was injured, the following rule of law was applicable: a landlord “owe[s] to his tenant and those employed by such tenant the duty not to expose them to a dangerous condition of the place which reasonable care on his part would have prevented. ” The court concluded that “it is not necessary that the [landlord] should have known of the defect in order to be liable for it.” (emphasis added)).

As our supreme court stated in Campbell v. Valley Garden Apartments:

“There are factual questions for a jury to answer in this case. [The plaintiff] ... presented evidence that the apartment complex knew of the slippery condition of the [stepping stones and the ground around them in wet weather]. It can reasonably be inferred that the defendant could have anticipated harm from the condition of the [stepping stones and the ground around them in wet weather].”

600 So.2d at 242. The judgment in favor of the defendants on the negligence count is therefore reversed.

Wantonness

“ ‘ “Wantonness has been defined as the conscious doing of some act or the omission of some duty [while] under knowledge of existing conditions and while conscious that, from the doing of such act or the omission of such duty, injury will likely or probably result, and before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the result....” ’
“Roberts v. Brown, 384 So.2d 1047, 1048 (Ala.1980), quoting Lewis v. Zell, 279 Ala. 33, 36, 181 So.2d 101 (1965)). In order to constitute wantonness, a failure to act must be accompanied by knowledge that someone is probably imperiled, and thus failure to act must be in reckless disregard of the consequences.... ‘That which constitutes wanton misconduct depends upon the facts presented in each particular case.’ American Pamcor, Inc. v. Evans, 288 Ala. 416, 261 So.2d 739 (1972).”

Berness v. Regency Square Associates, Ltd., 514 So.2d 1346, 1349-50 (Ala.1987).

Citing Mitchell v. Moore, 406 So.2d 347 (Ala.1981), McDonald contends that when a landlord has notice of a previous fall in the location of the plaintiffs fall and the landlord has taken no steps to investigate or remedy the defect that allegedly caused the prior fall, there is sufficient evidence to support a wantonness claim against the landlord. Accordingly, McDonald argues, the trial court erred by entering a summary judgment on the wantonness claim.

In Mitchell, the plaintiff was injured when she tripped and fell on a “jagged crack” between the inclined ramp and the sidewalk outside a grocery store. The plaintiffs negligence and wantonness claims were submitted to a jury. The evidence indicated that “at least one other person, previous to [the plaintiffs] fall, tripped and fell at the crack at the same site.” 406 So.2d at 350. The jury rendered a general verdict for the plaintiff, after which the defendant moved for a judgment notwithstanding the verdict (now a judgment as a matter of law, see Rule 50, Ala. R. Civ. P.) or a new trial on the wantonness count; the trial court denied both motions.

Over a strong dissent by Chief Justice Torbert, a majority of the Mitchell court concluded that the evidence of wantonness was sufficient. Chief Justice Torbert opined that the landlord’s notice of a prior fall in the same area would “tend to prove negligence and not wanton conduct.” Mitchell, 406 So.2d at 355 (Torbert, C.J., dissenting). Chief Justice Torbert pointed out that

“[the] prior accident ... occurred nearly two years before the instant accident and furnishe[d] no inference that it resulted from some defective or dangerous condition or was anything other than an isolated slip and fall.”

Id. Moreover, the Chief Justice observed that, in an earlier case with similar facts, Schuler v. Nelson Weaver Cos., 270 Ala. 727, 121 So.2d 908 (1960), the court had held that the evidence of wantonness was insufficient.

In Schuler, the defendant had been warned by an employee that the steps were slick and the defendant also had notice that, before the plaintiff fell on the steps, another individual “had slipped on the steps but had not fallen.” 270 Ala. at 730, 121 So.2d at 910. Under those facts, the Schuler court went so far as to say:

“No case has been cited to us and we have found none where any court has held that evidence similar to that presented in this case was sufficient to go to the jury on a charge of wantonness.”

Schuler, 270 Ala. at 730, 121 So.2d at 910 (emphasis added).

The instant case is strikingly similar to Schuler. Boykin notified Light that the stepping stones were broken and slippery and that the ground around the stones was mushy in wet weather. Boykin also told Light that she had sprained her ankle when she stepped into a crack in the stones, but she did not say whether she attributed her sprained ankle to a broken stepping stone or to a stone that was slippery in wet weather. Like Schuler— and unlike Mitchell — there was no evidence in the instant case indicating that Boykin or anyone else had ever fallen on the stepping stones before McDonald fell. In our judgment, therefore, this ease is distinguishable from Mitchell. Further, we note that six years after Mitchell, the supreme court, without citing Mitchell, held that a landlord’s notice of a prior fall was “not sufficient to foreclose entry of a summary judgment on the wantonness count.” Berness v. Regency Square Assocs., Ltd., 514 So.2d at 1350.

In Berness, the tenant of a store in a shopping mall sued the landlord, alleging, among other things, that the landlord’s negligence and wantonness in failing to inspect and repair loose concrete in the parking lot proximately caused her to fall and injure herself. The trial court entered a summary judgment in favor of the landlord on both claims. The supreme court reversed the judgment on the negligence claim and affirmed the judgment on the wantonness claim.

In opposition to the landlord’s motion on the wantonness claim, the plaintiff submitted an affidavit indicating that, before the plaintiffs fall, the landlord knew “that another elderly lady had [previously] fallen in the same area where the pavement was broken.” 514 So.2d at 1350. The supreme court held that “this evidence was not sufficient to foreclose entry of a summary judgment on the wantonness count” because “the affidavit does not show what caused the fall of the elderly lady, only that it happened in the same area.” Id.

Because the facts of Schuler most closely approximate the facts in the instant case and because our supreme court appears to have departed from Mitchell in Berness, we conclude that the evidence of wantonness in this case was insufficient to withstand the defendants’ motion for a summary judgment. Therefore, the judgment in favor of the defendants on the wantonness count is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

THOMPSON, J., concurs in part and dissents in part, with writing, which Pittman, J., joins.

MURDOCK, Judge,

concurring in part and concurring in the result in part.

I concur in the main opinion’s analysis of the negligence issue presented in this case. As to the wantonness issue that is presented in this case, it is clear to me that the record does not contain substantial evidence of wantonness on the part of the defendant. Because I do not fully agree with all aspects of the main opinion’s analysis as to this issue, however, I only concur in the result reached by the main opinion as to this issue.

THOMPSON, Judge,

concurring in part and dissenting in part.

I concur in that part of the main opinion that affirms the trial court’s judgment on the issue of wantonness. I must respectfully dissent from that part of the main opinion that reverses the trial court’s judgment on the issue of negligence.

The main opinion concludes, based primarily on a comment to a section of the Restatement (Second) of Torts and a Massachusetts case (neither of which was cited by the appellant, LaWanda McDonald), that because the defendants were on notice of certain problems with the stepping stones, they were required to discover and remedy all potential problems in the stepping stones, even those not reported to them.

In Campbell v. Valley Garden Apartments, 600 So.2d 240 (Ala.1992), upon which McDonald relies in her brief on appeal, a tenant was injured after slipping on a slick steel plate located on a walkway. The tenant sued her landlord, who successfully moved for a summary judgment. Our supreme court reversed. The evidence in that case indicated that the landlord’s management company had been informed that the metal plate was slick and could cause a fall. The court concluded that “[i]t can reasonably be inferred that the defendant could have anticipated harm from the condition of the steel plate on the sidewalk.” Campbell v. Valley Garden Apartments, 600 So.2d at 242.

“ ‘[I]t is the duty of the landlord to use reasonable care to keep in good repair and safe condition [common areas] of the premises’ ” and “ ‘if he negligently fails to do so’ ” liability may be imposed for any resulting injury. Mitchell v. Moore, 406 So.2d 347, 352 (Ala.1981) (quoting Mudd v. Gray, 200 Ala. 92, 93, 75 So. 468, 469 (1917)). In Campbell v. Valley Garden Apartments, supra, the landlord had been informed of the condition that eventually caused injury to the plaintiff. Thus, it does not appear that the landlord used reasonable care to maintain the premises to keep them in a safe condition.

The evidence viewed in a light most favorable to McDonald indicates that as she walked along the stepping stones, one of those stones moved in the wet, soft ground. McDonald testified that the movement or shift in the stepping stone caused her to fall and injure her ankle. Lena Boykin, a tenant, stated that she had informed Jeff Light that the stepping stones and the ground around the stones were slippery when they were wet. However, the record contains no evidence indicating that Boykin or any other person informed either of the defendants that the stepping stones sometimes shifted when one walked upon them after a rain. The defendants presented evidence indicating that, among other things, Light did not realize that the stepping stones were not properly embedded in the ground. Specifically, Light testified that “[t]he stones appeared to me, prior to [McDonald’s fall], to be firmly embedded in the ground.” Thus, unlike the situation in Campbell v. Valley Garden Apartments, supra, there is no evidence indicating that the defendants in this case were notified of the condition that later caused McDonald’s injury.

The defendants made a prima facie showing that they were not aware of the condition that ultimately caused McDonald’s injury. In response, McDonald was required to present substantial evidence to demonstrate that there existed a material question of fact on that issue. See Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999) (“When the mov-ant makes a prima facie showing that those two conditions are satisfied [i.e., that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law], the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact.”).

McDonald failed to present substantial evidence indicating that either of the defendants knew of the condition that caused her injury or that they “could have anticipated harm from the condition” of the stepping stones shifting when walked upon. Campbell v. Valley Garden Apartments, 600 So.2d at 242. Thus, the evidence does not support a conclusion that the defendants negligently failed to keep the common areas in good repair so as to prevent injury to those using the common areas. See Hancock v. Alabama Home Mortgage Co., 393 So.2d 969 (Ala.1981). Accordingly, I would affirm the summary judgment entered in favor of the defendants on McDonald’s negligence claim.

PITTMAN, J., concurs.

      . McDonald also sued David Bradley Investment and Dale Jerome Osborn d/b/a/ W.C. Investment, both of which were served with McDonald's complaint. Only Osborne filed an answer. The record contains no further pleadings or motions filed by or with regard to these two defendants.

      . Mitchell was decided under the scintilla-of-evidence rule. Under that rule, “if even the slightest amount of relevant evidence exists on an issue, then ... the issue must go to the jury.” Black's Law Dictionary 1373 (8th ed.2004).

      . Berness was also decided under the scintilla-of-evidence rule.


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    Silas J. JACKSON and Andre J. Jackson v. NATIONAL SECURITY FIRE AND CASUALTY COMPANY, INC.
    2050422.
    Court of Civil Appeals of Alabama.
    Dec. 29, 2006.
    Certiorari Petitions Denied March 9, 2007 Alabama Supreme Court 1060558 and 1060559.

      Ralph G. Holberg III and Michael R. Holberg of Holberg & Holberg, P.C., Mobile, for appellants.
    Patrick Collins, Daphne, for appellee.
   MURDOCK, Judge.

Silas J. Jackson and Andre J. Jackson appeal from a summary judgment entered by the Mobile Circuit Court in favor of National Security Fire and Casualty Company, Inc. (“National Security”). We affirm in part, reverse in part, and remand.

On August 27, 2004, the Jacksons borrowed $17,645.50 from Acceptance Loan Company, Inc. (“Acceptance”). As security for the loan, the Jacksons mortgaged a piece of real property they owned (“the property”). The Jacksons purchased from National Security an insurance policy insuring the property against loss from fire and other casualties. The policy period began on August 28, 2004, and ran for one year. The policy limits were $35,000, and Acceptance was named in the policy as the insured mortgagee. The Jacksons paid the annual premium for the insurance policy.

The Jacksons defaulted on their payment obligations to Acceptance. Acceptance foreclosed on the property, and the property was sold at public auction on April 27, 2005. At the foreclosure sale, Acceptance purchased the property for $20,121.64 and obtained a foreclosure deed. However, the Jacksons continued to reside in the home on the property.

On August 8, 2005, the home was destroyed by fire. After the Jacksons filed a claim on their insurance policy with National Security, National Security paid Acceptance $24,723.42, the balance due from the Jacksons under the foreclosed mortgage.

On October 12, 2005, National Security filed the present declaratory-judgment action against the Jacksons. National Security alleged that the Jacksons claimed that they had an insurable interest in the property at the time of the fire based on their statutory right to redeem the property from foreclosure, and that, as a result, they were entitled to the balance of the insurance proceeds, $10,276.58, which remained after National Security paid Acceptance the balance due under the foreclosed mortgage. National Security contended that the statutory right of redemption is a privilege and not a property interest and that because the property was sold to Acceptance at the foreclosure sale, the Jacksons did not have an insurable interest in the property at the time of the fire. On this basis, National Security sought a judgment declaring that the Jacksons had no entitlement to any insurance proceeds.

On November 2, 2005, the Jacksons filed an answer to the complaint in which they contended that they did have an insurable interest in the property at the time of the fire. Further, the Jacksons asserted counterclaims against National Security in which, among other things, the Jacksons alleged a breach by National Security of the insurance contract, as well as a bad faith refusal to pay to the Jacksons insurance proceeds allegedly due under that policy. The Jacksons sought compensatory and punitive damages, attorney fees, and costs.

On January 23, 2006, National Security filed a motion for a summary judgment on its claims and the Jacksons’ counterclaims. It contended that the Jacksons’ statutory right of redemption did not constitute an insurable interest in the property and, as a result, the Jacksons’ were not entitled to collect the insurance proceeds they sought. As to the Jacksons’ counterclaims, National Security argued that it had not refused to pay the insurance proceeds but, instead, had filed the present action seeking a determination from the court as to whether it was required to do so. National Security also argued that the Jacksons could not prove the elements of the tort of bad faith.

The Jacksons filed a response to National Security’s motion in which they argued that their statutory right to redeem the property constituted an insurable interest and that National Security’s summary-judgment motion was due to be denied and their counterclaims submitted to a jury. The Jacksons also filed their own motion for a summary judgment, adopting in support thereof their opposition to National Security’s summary-judgment motion. They asserted additional arguments with regard to their claims for costs and attorney fees, contending that a “special equity” existed whereby the trial court was free to award such costs and fees “in view of the haste with which National filed suit and the relatively small sum involved.”

On February 15, 2006, the trial court granted National Security’s summary-judgment motion, denied the Jacksons’ summary-judgment motion, and entered a judgment in favor of National Security. The court held that the statutory right to redeem property does not constitute an insurable interest. The Jacksons appeal.

We review de novo the entry of a summary judgment, applying the same standard that the trial court applied. McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992). Our Supreme Court set forth that standard in Capital Alliance Insurance Co. v. Thorough-Clean, Inc., 639 So.2d 1349 (Ala.1994):

“A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present ‘substantial evidence’ creating a genuine issue of material fact — ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Capital Alliance Ins. Co., 639 So.2d at 1350.

The primary question before us on appeal is one of first impression in Alabama and may be simply stated as follows: Is the statutory right to redeem property that has been sold at a foreclosure sale an insurable interest? We conclude that it is, and we reverse the trial court’s judgment insofar as it held to the contrary.

The trial court based its judgment in favor of National Security on the ground that § 6-5-250, Ala.Code 1975, states that the right of redemption provided therein is not a property right. Section 6-5-250 reads as follows:

“The statutory rights of redemption given or conferred by this article are mere personal privileges and not property or property rights. The privileges must be exercised in the mode and manner prescribed by statute and may not be waived in a deed of trust, judgment, or mortgage, or in any agreement before foreclosure or execution sale. The right of privilege conferred under this article is not subject to levy and sale under execution or attachment nor is it subject to alienation except in the cases provided for in this article; but if the right or privilege is perfected by redemption as provided in this article, then, and not until then, it becomes property or rights of property subject to levy, sale, alienation, or other disposition, except as is expressly authorized by statute.”

While it is true that § 6-5-250 states that the statutory right of redemption is not a property right, it appears that the focus of that section, read as a whole, is on the fact that the statutory right of redemption is not alienable as an interest or right in property. In any event, the concept of an “insurable interest” and the concept of a “property interest” are not synonymous. In American Equitable Assurance Co. v. Powderly Coal & Lumber Co., 225 Ala. 208, 142 So. 37 (1932), our Supreme Court discussed the concept of “insurable interest”:

“In the early history of insurance, there was a tendency to require title and ownership as a basis of insurable interest, but later decisions have adopted a more liberal doctrine, and it is not now essential to an insurable interest that one should have a property in the thing insured, or an estate, legal or equitable; the term ‘insurable interest’ being more extensive than property or estate. Any qualified or limited interest in the subject of insurance is sufficient, and an equitable interest is sufficient to support an insurable interest. It has likewise been held that any reasonable expectation of legitimate profit or advantage to spring from property is sufficient to give an insurable interest.”

American Equitable Assur. Co., 225 Ala. at 212, 142 So. at 39 (emphasis added). The Supreme Court further discussed the “insurable interest” concept in Pacific National Fire Insurance Co. v. Watts, 266 Ala. 606, 97 So.2d 797 (1957):

“[0]ne can have an insurable interest although he has no property in the thing insured, but any limited or qualified interest, equitable right or expectancy of advantage is sufficient to support an insurable interest.”

Watts, 266 Ala. at 610, 97 So.2d at 801.

More recently, our legislature codified the definition of “insurable interest” at Ala.Code 1975, ,§ 27-14r-4:

“(a) No contract of insurance of property or of any interest in property, or arising from property, shall be enforceable as to the insurance except for the benefit of persons having an insurable interest in the things insured as at the time of the loss.
“(b) ‘Insurable interest,’ as used in this section, means any actual, lawful and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction or pecuniary damage or impairment.
“(c) The measure of an insurable interest in property is the extent to which the insured might be damnified by loss, injury or impairment thereof.”

Our Supreme Court has held that this statute does not replace the previous judicial interpretations of “insurable interest,” but is “ ‘[mjerely declaratory of those legal principles which have long governed the concept of insurable interest in this State.’ ” Brewton v. Alabama Farm Bureau Mut. Cas. Ins. Co., 474 So.2d 1120, 1122 (Ala.1985) (quoting National Sec. Fire & Cas. Co. v. Hester, 292 Ala. 592, 596, 298 So.2d 236, 239 (1974)).

The two Alabama cases cited by the appellants and the appellee do not squarely address the ultimate issue in this case. In National Union Fire Insurance Co. v. Deas, 229 Ala. 477, 158 So. 323 (1934), the question presented was whether a foreclosure worked a forfeiture of a casualty insurance policy under certain language of the policy itself.

In Aetna Insurance Co. v. Kacharos, 226 Ala. 504, 147 So. 438 (1933), which was cited in Deas and which National Security describes as “on point,” our Supreme Court dealt solely with the issue of whether the purchaser of real property at a foreclosure sale is the “unconditional and sole owner” of the purchased property during the period in which the mortgagor can redeem the property. Although the Supreme Court held in the affirmative, the Court did not address whether the mortgagor, who possessed the right to redeem the property, also had an insurable interest in the property. Given that “one can have an insurable interest although he has no property in the thing insured,” Watts, 266 Ala. at 610, 97 So.2d at 801, we fail to see how the holding in Hacharos resolves the issue with which this court is presently faced.

Although the question of whether the statutory right of redemption constitutes an insurable interest is one of first impression in this State, several treatises are in agreement that a right to redeem real property after a foreclosure sale does constitute an insurable interest in that property. For example, according to Couch on Insurance,

“[t]he insurable interest which a mortgagor has at the time a policy is issued continues beyond default and the beginning of a foreclosure period and after the mortgage foreclosure sale and during the redemption period.
“Generally, the mortgagor’s insurable interest terminates with the expiration of the period of redemption. In some states, however, a mortgagor’s interest may continue beyond the redemption period, until the purchaser has complied with his or her bid or executed a bond for its payment. The mortgagor’s interest will also be deemed to continue beyond the redemption period where the mortgagor has a statutory right of first refusal. In states in which there is no right of redemption subsequent to a foreclosure sale, such sale and the delivery of the deed by the sheriff terminate the mortgagor’s insurable interest.”

3 Lee R. Russ et al., Couch on Insurance § 42:30 (3d ed.2005) (footnotes omitted).

44 Am.Jur.2d Insurance § 953 (2003) states: “The insurable interest of a mortgagor continues after foreclosure and during the redemption period, but the expiration of the redemption period of a mortgage is generally regarded as terminating the mortgagor’s interest.” (Footnotes omitted.) Similarly, 44 C.J.S. Insurance § 228 (1993) states:

“A mortgagor has an insurable interest even while in default; such interest is not divested by the rendition of a decree of foreclosure, for he retains the equity of redemption, and, by virtue thereof, and until it expires, an insurable interest, and this interest is terminated only by a failure to redeem within the specified time.”

(Footnotes omitted.)

In Carr v. Union Mutual Insurance Co., 598 P.2d 269 (Okla.App.1979), the Oklahoma Court of Civil Appeals confronted facts similar to those now presented to this court. In that case, the plaintiffs owned real property that was mortgaged and on which they obtained a casualty insurance policy. Carr, 598 P.2d at 269-70. The mortgage was foreclosed and the property was sold at a foreclosure sale. Id. at 270. After the sale, but before the expiration of the redemption period, a fire destroyed the house located on the property. Id. The insurance company argued that the plaintiffs did not have an insurable interest in the property at the time of the fire because the property had already been sold at the foreclosure sale. Id. The appellate court disagreed:

“In the present case the redemption period, or at least the possibility of redemption, had not expired because the foreclosure sale had not been confirmed [] at the time of the fire. Therefore the [plaintiffs] still had an insurable interest in both the dwelling and their unscheduled personal property. Since the policy remained in effect at the time of the loss and the [plaintiffs] had an insurable interest which was insured, they were entitled to recover as a matter of law.”

Carr, 598 P.2d at 271.

Likewise, in Pattison v. State Farm Fire & Casualty Co., 209 Kan. 167, 495 P.2d 975 (1972), the plaintiffs purchased a house and land and, in conjunction with that transaction, assumed a promissory note and a mortgage, and obtained an insurance policy on the house. After the plaintiffs defaulted on the note, the mortgage was foreclosed and the house was sold at a foreclosure sale. After the foreclosure sale was confirmed, the plaintiffs were granted a six-month period in which they could redeem the property, during which the house was extensively damaged by fire. On appeal, the insurance company argued that the plaintiffs were not entitled to recover under the insurance policy because, according to the insurance company, the plaintiffs did not have an insurable interest in the property at the time of the fire. Pattison, 209 Kan. at 173, 495 P.2d at 980. The Kansas Supreme Court disagreed, holding that a mortgagor “has an insurable interest after the foreclosure sale and during the period of redemption, which terminates with the expiration of such right ....” Id.

Other courts have reached the same conclusion. See, e.g., Parker v. Iowa Mut. Tornado Ins. Ass’n, 220 Iowa 262, 269, 260 N.W. 844, 848 (1935) (“It is our conclusion that the mortgagor’s insurable interest does not end until the period of redemption has expired.”); Malvaney v. Yager, 101 Mont. 331, 338, 54 P.2d 135, 138 (1936) (“Likewise, the mortgagor may insure his interest without regard to that of the mortgagee, and, if he does so, his protection continues after foreclosure and throughout the period of redemption therefrom.”); Baker v. Penn. Fire Ins. Co., 81 Mont. 271, 280, 263 P. 93, 97 (1928) (“It seems to be the general rule that the mortgagor’s insurable interest in the mortgaged property continues to exist after foreclosure sale and before the time for redemption has expired.”).

We agree with the foregoing authority and conclude that Alabama’s statutory right to redeem, conferring as it does the right to regain title to foreclosed property, constitutes an “actual, lawful and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction or pecuniary damage or impairment,” Ala.Code 1975, § 27-14-4(b), and therefore constitutes an insurable interest. Given the fact that “one can have an insurable interest although he has no property in the thing insured,” Watts, 266 Ala. at 610, 97 So.2d at 801, we find unpersuasive National Security’s argument that the lack of a property interest prevents a mortgagor from insuring property that he or she has a statutory right to redeem. The trial court’s judgment in this regard is therefore due to be reversed.

National Security argues that Silas Jackson did not vacate the property following Acceptance’s demand that he do so, and, as a result, he waived his right to redeem the property pursuant to Ala.Code 1975, § 6-5-251. Although this allegation appeared in National Security’s complaint, National Security did not seek a summary judgment on this basis and the trial court did not enter the summary judgment on this basis. As a result, this argument does not provide a basis on which we can affirm the summary judgment. Although our Supreme Court has held that we may “affirm the trial court on any valid legal ground,” the exception to this rule is that this court may not affirm a summary judgment on a ground the movant did not argue before the trial court when to do so would deprive the nonmovant of an opportunity to present substantial evidence creating a genuine issue of material fact as to that ground. See Ex parte Canada, 890 So.2d 968, 971 (Ala.2004).

We turn now to the Jacksons’ counterclaims. To the extent the Jacksons counterclaimed for a judgment that they were entitled to the insurance proceeds remaining after the payment of their debt to Acceptance, the trial court entered a summary judgment against the Jacksons based on its holding that the Jacksons did not have an insurable interest in the property at the time that the property was damaged. Because we have held that the Jacksons did, in fact, have an insurable interest in the property at the time that it was damaged, we reverse the trial court’s judgment in this regard.

The Jacksons also sought compensatory and punitive damages for the breach of their insurance contract and for National Security’s alleged bad faith in refusing to pay proceeds due under that contract. The trial court entered a summary judgment against the Jacksons on these claims on two grounds: First, the trial court held that there was no merit to the Jacksons’ breach-of-contract claim because, according to the trial court, the Jacksons did not have an insurable interest. Our reversal of the trial court’s holding as to the issue of whether the Jacksons had an insurable interest obviously means that we cannot uphold the trial court’s summary judgment on the Jacksons’ contract and bad-faith counterclaims on this basis.

The trial court also held, however, that National Security had not denied the Jacksons’ claim for the insurance proceeds but, instead, had merely sought a judicial declaration as to whether it was required to pay that claim. On appeal, the Jacksons do not argue that the trial court erred when it so held, and, as a result, we affirm the trial court’s judgment in this regard. See Gloor v. BancorpSouth Bank, 925 So.2d 984, 992 (Ala.Civ.App.2005) (“When an appellant fails to argue an issue in brief, that issue is waived.”).

Finally, the Jacksons also sought an award of costs pursuant to § 6-6-281, Ala. Code 1975, and an award of their attorney fees. The trial court denied these claims on the ground that they were moot because, according to the trial court, National Security was due to prevail on its declaratory-judgment claim. We have found that National Security was not entitled to prevail on its declaratory-judgment claim, and therefore the trial court’s judgment against the Jacksons on their claims for costs and attorney fees cannot be sustained on that ground.

As to the issue of attorney fees, however, the parties present arguments on appeal as to whether the trial court’s judgment should be affirmed on the separate legal ground that an award of attorney fees to the Jacksons would be contrary to the so-called “American Rule” followed in Alabama. See generally Lanier v. Moore-Handley, Inc., 575 So.2d 83, 85 (Ala.1991). The Jacksons recognize in their brief that Alabama follows the American Rule, but note that there are exceptions to it, including circumstances involving a “special equity.” Id. The Jacksons argue that this case “represents a case of ‘special equity,’ ” because “[ujnless an insurance company can be taxed with [its] insured’s attorney fees in a case like this one, where the claim is relatively small, [it] will have considerable incentive not to pay smaller bona fide claims, knowing that an insured’s court victory will be so costly that it will not be feasible to pursue.” Although the Jacksons couch their argument as based on the special-equity exception, in essence, they ask this court to recognize a new exception to the American Rule that would apply whenever the amount at issue in a lawsuit is relatively small compared to the potential amount of attorney fees necessary to prosecute the claim. We decline to do so and, accordingly, that portion of the trial court’s judgment denying the Jack-sons’ claim for attorney fees is due to be affirmed.

Based on the foregoing, we affirm the trial court’s entry of a summary judgment on the Jacksons’ breach-of-contract claim, their bad-faith claim, and their attorney-fee claim; we reverse all other aspects of the judgment; and we remand the cause to the trial court for further proceedings consistent herewith.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

PITTMAN, J., recuses himself.

      . Acceptance subsequently conveyed the property back to the Jacksons, the debt the Jacksons owed it having been paid by the insurance proceeds. Upon doing so, Acceptance dismissed a suit it had filed against one of the Jacksons alleging unlawful detainer of the property. In its motion to dismiss the suit, Acceptance represented to the court that the Jacksons had redeemed the property from foreclosure.

      . Section § 6-5-248(b), Ala.Code 1975, provides that an individual whose real property is sold at a foreclosure sale by virtue of the foreclosure of a mortgage thereon “may exercise the right of redemption ... within one year from the date of the [foreclosure] sale.”

      . Under Oklahoma law, confirmation is the process by which a trial court determines that the foreclosure sale was conducted in conformity with the law. Okla. Stat. Ann. tit. 12, § 765 (West 2000). Oklahoma law provides that a mortgagor's right to redeem property "is exercisable any time between default and confirmation of the sheriff’s sale.” Lincoln Mortg. Investors v. Cook, 659 P.2d 925, 928 (Okla.1982).

      . In confirming a foreclosure sale, a court applying Kansas law would determine whether the sale's conduct conformed to law and equity. Kan. Stat. Ann. § 60-2415 (1994). Unlike Oklahoma law (see note 3, supra), the period of redemption under Kansas law does not end at the time that the court confirms the foreclosure sale. See Kan. Stat. Ann. §§ 60-2414,-2415 (1994).

      . The trial court also attempted to justify its conclusion that the Jacksons did not have an insurable interest in the property on an alternative basis. In its judgment, it stated that, at the time the home on the property was destroyed, the Jacksons "were not owners, but were tenants by sufferance, or squatters, or trespassers.” A possessor of this type, it stated, "does not have a right to which he can enforce and, therefore, at the time of the loss the [Jacksons] did not have an interest to be insured under the subject policy.” In support, the trial court cited Fidelity Phenix Fire Insurance Co. of New York v. Raper, 242 Ala. 440, 442, 6 So.2d 513, 515 (1941), for the proposition that "[t]he law is clear that a person with no interest in the land other than that of a tenant by sufferance, or a squatter, or a trespasser, has no insurable interest in the property.”

        Allhough it may be true that, at the time the property was damaged, the Jacksons did not possess the property under a claim of title but, instead, were merely tenants by sufferance, squatters, or trespassers, it is not their status as possessors of the land that provided them with an insurable interest in the property. Instead, their insurable interest in the property was based on their statutory right to redeem the property.

      . Ala.Code 1975, § 6-5-251, provides, in relevant part:
      "(a) The possession of the land must be delivered to the purchaser or purchaser's transferees by the debtor or mortgagor if in their possession or in the possession of anyone holding under them by privity of title, within 10 days after written demand for the possession has been made by, or on behalf of, the purchasers or purchaser's transferees.

      "(c) Failure of the debtor or mortgagor or anyone holding possession under him or her to comply with the provisions of this section forfeits the right of redemption of the debtor or one holding possession under the debtor.”

      . Furthermore, to the extent that any portion of their argument could be construed as addressing this counterclaim, we note that the Jacksons failed to cite any legal authority relevant to this counterclaim and the trial court’s ruling thereon. " 'Where an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court’s duty nor its function to perform all the legal research for an appellant.’ ” Spradlin v. Birmingham Airport Auth., 613 So.2d 347, 348 (Ala.1993) (quoting Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala.1990)); see also Rule 28(a)(10), Ala. R.App. P.

      . Section 6-6-231 provides: "In any proceeding under this article, the court may make such award of costs as may seem equitable and just.”

      . As the court in Lanier indicated, exceptions to the American Rule have been recognized in Alabama in cases where the awarding of fees are provided for in a contract or by statute, as well as in cases involving a "special equity.” Lanier, 575 So.2d at 85.

      . Consistent with the above-stated principles, there are no Alabama cases that support an exception to the American Rule under these circumstances; the Jacksons have not cited to us any authority from other jurisdictions supportive of such an exception.


text:
    L.R.M. and J.M. v. D.M. L.R.M. and J.M. v. D.M. D.M. v. L.R.M. and J.M.
    2050092 and 2050093.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2007.
    Rehearing Applications Denied Feb. 23, 2007.

      Ralph K. Strawn, Jr., of Henslee, Robertson, Strawn & Sullivan, L.L.C., Gadsden, for appellants/cross-appellees L.R.M. and J.M.

      Christopher G. McCary, Legal Services Alabama, Anniston, for appellee/cross-ap-pellant D.M.
   MURDOCK, Judge.

These appeals, which are more correctly classified as an appeal and a cross-appeal, see discussion infra, involve a custody dispute between D.M., who is the mother of A.M., and L.R.M. and J.M., who are A.M.’s paternal great-grandparents. In the underlying proceedings before the Cherokee Juvenile Court, the mother, the paternal great-grandparents, and AM.’s father all sought custody of A.M. The juvenile court awarded custody to the mother, awarded the father supervised visitation, and awarded the paternal great-grandparents standard visitation. We note that the father has not appealed from the juvenile court’s judgment.

The mother and the father began dating in January 2002. Their daughter, A.M., was born in May 2003. A few days after A.M.’s birth, the mother graduated from high school. The mother and A.M. resided with A.M.’s maternal grandmother in Cedar Bluff. The father resided with the paternal great-grandparents, who had raised him, in Jamestown.

In September 2003, the father and the mother, who were both approximately 19 years old, married. After their marriage, the father, the mother, and A.M. resided in a home next door to the paternal great-grandparents. It is undisputed that A.M. spent almost all of the time between September 2003 and the end of May 2004 in the paternal great-grandmother’s care. It is also undisputed that the mother spent the night with the paternal great-grandparents on occasion and that the mother spent many days in the paternal great-grandparents’ home with A.M.

The above-described care arrangement was attributable, in part, to the father’s insistence that the mother leave A.M. with the paternal great-grandparents because A.M. interrupted his sleep. The father has a history of drug problems, and he has a violent temper. Based on the evidence presented to the juvenile court, it could have found that the young mother was in the unenviable position of acceding to the father’s desires or facing unpleasant consequences for her and the child. For example, on one occasion, the father actually struck A.M. when he and the mother got into an argument in bed. Also, on three occasions during the few months that the mother and the father resided together, they separated because of domestic violence committed by the father against the mother. On each occasion, the mother took A.M. and they resided with the maternal grandmother for a few days.

Except for the three brief periods of separation described above, the father and the mother resided together between September 2003 and early April 2004, when they permanently separated. During the time that the father and the mother resided together, they regularly used marijuana and they also used methamphetamine. It appears, however, that the mother’s drug use was heavily influenced by her relationship with the father. Unlike the father, the mother did not use drugs before she met the father, and she apparently ceased using drugs after she and the father separated in April 2004. The mother also did not use drugs from July 2002, when she suspected that she was pregnant with A.M., until the parties married and began residing together in September 2003. Also, the first time that the mother used methamphetamine was one month after she observed the father using that drug and after she and the father had married.

As stated above, the father and the mother separated in April 2004. Thereafter, the mother moved back into the maternal grandmother’s home, and the mother began working at a local restaurant. The mother continued to leave A.M. in the paternal great-grandmother’s care much of the time because of her erratic work schedule and because of disagreements between she and the father about who should care for A.M. The mother testified that occasionally she had to be at work at 5:00 a.m. and that she would leave A.M. with the paternal great-grandmother overnight because she did not want A.M. to have to wake up that early. The mother also testified that when she attempted to leave A.M. in the maternal grandmother’s care, the father would obtain A.M. from the maternal grandmother and take her to the paternal great-grandmother’s home while the mother was at work.

In early June 2004, the mother moved with A.M. to Rome, Georgia, where the mother had resided in the past and where her younger sister and some of the mother’s extended family still resided. The mother moved into a public-housing apartment located next door to her sister’s public-housing apartment. Not long after the mother moved to Rome with A.M., she arranged for the paternal great-grandparents to retrieve A.M. for a weekend visit. The paternal great-grandparents returned A.M. to the mother after the weekend visit.

Approximately three days after the paternal great-grandparents returned A.M., the father went to Rome to visit A.M. According to the mother, when the father arrived she was preparing to take A.M. to a doctor because A.M. had developed a rash after a recent inoculation. Upon his arrival, the father stated that he would take A.M. to a doctor instead. Thereafter, the father took A.M. to the paternal great-grandparents’ home; the paternal great-grandparents subsequently took the child to a doctor.

Two days after the father left A.M. with the paternal great-grandparents, he filed a complaint for a divorce in the Cherokee Circuit Court (case number DR-04-80). The father alleged various grounds for divorce, and he alleged that the mother had abandoned A.M. to the paternal great-grandmother. The father also alleged that the mother had “been in the company of known drug users with the child [and that she] .... currently resides in a two bedroom apartment with five people residing therein where parties are engaging in deviate, inter-racial sexual acts, homosexual acts, consuming drugs and endangering the health, safety and welfare of [A.M.].” The father requested that he be awarded “immediate ex parte custody” of A.M. and that he be awarded permanent custody of A.M. In support of his complaint, the father filed an affidavit from the paternal great-grandmother. The affidavit stated:

“That I have been the primary caregiver for the minor child made the basis of this action with the child sleeping in my home and providing all of the activities of daily living for the child since September, 2003. That the ... mother of the minor child is not gainfully employed, has provided little or no support or maintenance for the minor child and has failed to provide medical attention for the minor child.
“That on or about April, 2004, the [mother] confided in me and advised me that she was associating with known drug users ... and that the said individuals were engaging in deviate, interracial homosexual relations. That one [AIM.] is a known drug user.
“That on June 11, 2004, the [mother] asked me to meet her in Rome, Georgia to pick up the child and when I found the minor child she suffered from a severe diaper rash. That on June 16, 2004 the [father] brought the minor child to my home and the child was covered in a severe body rash due to an allergic reaction wherein I sought immediate medical attention for the minor child on that date. That the [mother] has failed to provide adequate nutrition for the minor child.
“It is my belief that the [mother] is both physically and mentally unable and unwilling to care for the minor child....
“I believe that the minor child in the custody of the [mother] would be endangered and at risk for serious physical, emotional and psychological injury.”

In conjunction with his divorce complaint, the father also filed a motion requesting the entry of several pendente lite orders, including an order for pendente lite custody of A.M. On the day that the father filed his complaint and motion, the circuit court entered an ex parte order awarding the father “temporary custody” of A.M. and setting his motion for a hearing to be held on August 2, 2004.

In July 2004, the paternal great-grandparents filed a “Petition to Intervene and Complaint by Intervenors.” They alleged that A.M. had “primarily lived and slept in their home since her birth” and that “[n]ot to allow the intervention could cause significant harm to” A.M. The paternal great-grandparents requested that they be considered an “alternative placement” for A.M. should the court determine that neither the mother nor the father “would be a proper party to have the full care, custody and control” of A.M. The circuit court granted the motion to intervene.

Also in July 2004, the mother, who had repeatedly requested that A.M. be returned to her and who had obtained an attorney from “Legal Services Alabama,” filed an answer and a counterclaim for a divorce. The mother conceded in her pleadings that A.M. was the father’s child. She requested that the circuit court enter an order divorcing her and the father, awarding her custody of A.M., awarding her child support, and dividing the marital property.

In August 2004, after a hearing on the father’s motion for pendente lite orders, the circuit court entered an order that stated that A.M. was the mother’s and father’s child but that they “did not establish a common law marriage prior to the birth of the child. [A.M.] is not, therefore, a child of the marriage of this Plaintiff and Defendant.” The circuit court concluded that it did “not have jurisdiction to determine the issues of custody, visitation and child support of this child which are contested by these parties.” It then severed the issues of custody, visitation, and child support from the divorce action, and it transferred those matters to the Cherokee Juvenile Court. The circuit court placed “the divorce case ... on the inactive docket pending the motion of either party.”

The juvenile court assigned the transferred proceeding case number JU-04-243.01. Approximately two months after the custody, visitation, and child-support issues were “severed and transferred” to the juvenile court, the father filed a “Motion to Have the Juvenile Court Assume Jurisdiction.” He alleged that A.M. was “a dependent child due to the faults and habits of the ... mother” and that he was “the fit and proper person to have care, custody and control of’ A.M. The father requested that the juvenile court “assume jurisdiction of this cause,” that it award him custody of the child, and that it require the mother to pay him child support.

In December 2004, the juvenile court held a hearing on the father’s motion to assume jurisdiction. It thereafter entered a “Temporary Order” that stated:

“1. That paternity of [A.M.] has been acknowledged by the parties and that [the father] is hereby adjudged to be the father of [A.M.]
“2. That the Department of Human Resources is Ordered to conduct a home study/evaluation of the homes of the parties and to report the same to this Court.
“3. That the ... [father and the mother] are Ordered to report to the Cherokee County Court Referral and register with the Court Referral Color Code Program.
“4. That the [father and the mother] are to register with the Department of Human Resources/Child Advocacy Center parenting classes and are to complete the parenting class program and report to this Court upon completion of the same.[]
“5. That the parties shall continue to interact with each other and the child in the manner that they have ... pending further Orders of the Court.
“7. That [the mother] is to have reasonable visitation as the parties have agreed.”

In May 2005, the paternal great-grandparents filed an “Amended Petition” in both the divorce action pending before the circuit court and in the juvenile-court proceeding. In addition to the allegations contained in their original intervention petition, the paternal great-grandparents alleged:

“2. That [the paternal great-grandparents] have provided the primary care for said child since her birth.... The minor child has primarily lived and slept in their home since her birth and the [father] and [the mother] have acquiesced to this custodial situation since the child’s birth.
“3. That it would be in the best interest of said minor child under the provisions of [Ex parte McLendon, 455 So.2d 863 (Ala.1984),] that said minor child be awarded to [the paternal great-grandparents].
“4. That neither the [father] nor the [mother] exercised their parental duties toward said minor child nor met their responsibilities for said minor child. Neither the [father] nor the [mother] are fit and proper parties to have the custody of said minor child. That [the paternal great-grandparents] would be the proper and fit parties to have the full care, custody and control of said minor child.”

A few days after the paternal great-grandparents filed their amended petition, the presiding judge of the circuit court assigned the pending divorce action to the district court judge who was conducting the juvenile-court proceeding.

After the reassignment of the divorce action, the trial judge conducted a consolidated ore tenus proceeding over two days, one day in July 2005 and one day in September 2005. During the July 2005 hearing, the mother and the father were required to submit to a drug test. The mother tested negative for the presence of all drugs; the father tested positive for the presence of marijuana and cocaine.

After the July 2005 hearing, the trial court entered an “Amended Temporary Order” that awarded pendente lite custody of A.M. to the paternal great-grandparents on the condition that the father not reside with them, that awarded the father supervised visitation with A.M., and that awarded the mother unsupervised visitation with A.M. for one day every other weekend, in addition to telephone visitation. We note that testimony at the July 2005 hearing reflected that the paternal great-grandparents had allowed the mother to visit with A.M. but had not allowed her to take A.M. from their home.

After the September 2005 hearing, the trial court rendered a judgment that states:

“1. That for a period of six months custody shall remain with the [paternal great-grandparents] ... on the condition that the father ... not reside in the home.
“2. That the father ... shall have supervised visitation only in the home of [the paternal great-grandparents]; to be arranged between the parties.
“3. That the mother ... shall have visitation every weekend for a period of three months, with the exception of Christmas 2005, on which the mother shall have the child until 5:00 p.m. Christmas eve; at the end of three months the mother shall have the child from Sunday at 6:00 p.m. until Friday at 6:00 p.m., with the child returning to the [paternal great-grandparents’] home every weekend.
“4. At the end of the six months period, custody shall be returned to the mother ... with the [paternal great-grandparents] to have the following visitation:
“A. Three weekends per month....
“B. Four hours on the child’s birthday.
“C. [Description of Christmas visitation schedule omitted.]
“D. One half of Spring Break.
“E. [Description of Thanksgiving visitation schedule omitted.]
“F. Father ... shall have visitation at [the paternal great-grandparents’] home on Father’s Day, regardless of other provisions of the Decree and mother shall have Mother’s Day.”

On October 12, 2005, the circuit court clerk filed the trial court’s judgment in both the juvenile-court action and the divorce action.

The mother filed a postjudgment motion in the juvenile-court action, arguing in part that the juvenile court erred by leaving custody with the paternal great-grandparents for six months and that it erred by awarding the paternal great-grandparents visitation. The paternal great-grandparents presented a postjudgment motion that was styled for both the juvenile-court action and the divorce action, but the court clerk, who served for both the circuit court and the district court, see Ala.Code 1975, § 12-17-160, entered the motion in only the divorce action. In their postjudgment motion, the paternal great-grandparents argued that the mother had failed to meet her burden of proof under Ex parte McLendon, 455 So.2d 863 (Ala.1984). They also requested that the juvenile court amend its order to make a specific finding of dependency and that it award them custody of A.M. Further, the paternal great-grandparents presented a motion for a stay of the judgment pending appeal. Like their postjudgment motion, the motion for a stay was styled for both the juvenile-court action and the divorce action, but the court clerk entered it in only the divorce action.

On the date that she filed her post-judgment motion, the mother also filed a notice of appeal in the juvenile court. On the date that they filed their postjudgment motion, the paternal great-grandparents delivered a notice of appeal to the court clerk who, as stated above, accepted filings for both the juvenile court and the circuit court. The paternal great-grandparents’ notice of appeal contained a caption referencing the circuit court and the case number for the divorce action pending in the circuit court; the caption did not reference the juvenile court or the case number for the juvenile-court proceeding. However, the paternal great-grandparents’ notice of appeal stated that the “final judgment” being appealed from was the judgment “denying petition for child custody & other relief filed by [the paternal great-grandparents] & granting child custody to [the mother] and visitation to [the paternal great-grandparents],” issues that were only before the juvenile court. The court clerk filed the paternal great-grandparents’ notice of appeal in the divorce action.

After a hearing on the postjudgment motions, an “Amended Order” was rendered that specifically stated that A.M. was not a dependent child and that the mother was not unfit. The amended order also denied “all pending motions.” The amended order did not purport to address any of the issues pending in the circuit court; in particular, the amended order did not purport to address the issues of divorce or the division of marital property. The amended order was styled for both the juvenile-court action and the divorce action, but the court clerk entered the amended order only in the divorce action.

On appeal, the paternal great-grandparents contend that the juvenile court erred by affording the mother her custodial presumption as a natural parent because, they say, she had abandoned A.M., she had voluntarily relinquished custody of A.M. to them, and she was an unfit parent. They also argue that the mother lost her custodial presumption as the result of the juvenile court’s December 2004 and July 2005 orders and that she had no such presumption because this case involved a dependency proceeding. Further, they argue that the juvenile court’s order is unsupported by the evidence. In her appeal, the mother contends that the juvenile court erred when it awarded the paternal great-grandparents visitation with A.M.

Before addressing the merits of the paternal great-grandparents’ appeal, we must first determine whether the paternal great-grandparents filed a notice of appeal as to the juvenile court’s judgment. After thoughtfully considering the somewhat confusing record, we believe that the only reasonable conclusion is that the paternal great-grandparents’ filed a timely notice of appeal from the juvenile court’s October 2005 judgment, but they made mistakes in the caption of their notice of appeal such that the court clerk entered it in the wrong action.

Rule 1, Ala. R.App. P., states that the rules of appellate procedure “shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits.” In regard to the filing requirements for a notice of appeal, Rule 3, Ala. R.App. P., states that certain errors in a notice of appeal are to be treated as remediable clerical errors, though it does not specifically address the affect of an error as to the designation of the court that entered the judgment or an error as to the case number. Nevertheless, our Supreme Court has stated that

“[t]he only jurisdictional prerequisite for an appeal is the timely filing of a notice of appeal.... The Alabama Rules of Appellate Procedure were not ‘designed to catch the unwary on technicalities.’ ... Accordingly, absent a showing that the alleged defect in a notice of appeal prejudiced the adverse party, an appeal will not be dismissed on the basis of that defect.”

Dunning v. New England Life Ins. Co., 890 So.2d 92, 96 (Ala.2003) (quoting Edmondson v. Blakey, 341 So.2d 481, 484 (Ala.1976)) (emphasis added); cf. 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1321 (2004) (stating that errors in the caption are generally nonfatal, formal errors, particularly where the other party has not been prejudiced by the error). See also Marsh v. Butler County, 268 F.3d 1014, 1023 n. 4 (11th Cir.2001) (“The caption is chiefly for the court’s administrative convenience.”).

The paternal great-grandparents’ notice of appeal was presented to the court clerk and stamped filed within 14 days of the entry of the October 2005 judgment. See Rule 28(A), Ala. R. Juv. P. Also, the notice of appeal was served on all parties, and the mother has not argued that she was prejudiced by the mistakes contained in the notice of appeal. Based on our review of the record and the foregoing authorities, we cannot conclude that the paternal great-grandparents’ mistakes should result in the dismissal of their appeal. Instead, we conclude that the paternal great-grandparents’ notice of appeal must be treated as a cross-appeal in the juvenile-court action.

As to the merits of the paternal great-grandparents’ cross-appeal, this appears to have been a difficult case for he juvenile court. The resolution of the case depended to a great degree upon the choice of whether to believe the testimony of a young mother, who has a less than stellar past and who is apparently not an ideal parent, or a paternal great-grandmother, who was apparently prone to exaggeration and not entirely credible. The juvenile court could also have concluded that the paternal great-grandmother was susceptible to the father’s influence and that she might not be sufficiently vigilant in protecting the child from risks posed by the father.

Except for questions of law, which this court reviews de novo, when 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)). Likewise,

“appellate courts are not allowed to substitute their own judgment for that of the trial court if the trial court’s decision is supported by reasonable inferences to be drawn from the evidence.... The reason for giving such deference to the trial judge’s findings based on disputed evidence in ore tenus proceedings is that the trial judge has the benefit of observing the witnesses’ manner and demeanor and has the better opportunity to pass upon the credibility of their testimony.”

Ex parte Pielach, 681 So.2d 154, 154-55 (Ala.1996) (citations omitted). Also, when a trial court has made no express findings of fact, this court will assume that the trial court made those findings necessary to support its judgment. See Ex parte Patronas, 693 So.2d 473, 475 (Ala.1997).

As to the paternal great-grandparents’ arguments, the juvenile court’s finding that A.M. was not a dependent child is supported by the evidence. Further, the juvenile court’s December 2004 order and its July 2005 order were not custody awards that resulted in the loss of the mother’s custodial presumption. The orders were pendente lite orders that did not, of themselves, affect a change in the custodial presumption in favor of the mother as A.M.’s natural parent. See P.B. v. P.C., 946 So.2d 896 (Ala.Civ.App.2006); Sims v. Sims, 515 So.2d 1, 2-3 (Ala.Civ.App.1987).

The remaining issues raised by the paternal great-grandparents are whether the evidence fails to support (1) an implicit finding that the mother had not voluntarily relinquished custody of A.M. to the paternal great-grandparents, (2) an implicit finding that she had not abandoned A.M. to the paternal great-grandparents, and (3) an explicit finding that the mother was not unfit to have custody of A.M. The burden was on the paternal great-grandparents to present “clear and convincing evidence” on the issues of abandonment, voluntary relinquishment, or unfitness in order to overcome the strong custodial presumption in favor of the mother. See, e.g., Ex parte G.C., 924 So.2d 651, 656 (Ala.2005); K.C. v. D.C., 891 So.2d 346, 348-49 (Ala.Civ.App.2004).

As to the first two of the aforementioned issues, any abandonment or voluntary relinquishment by the mother would have had to have occurred between September 2003 and early June 2004, when the mother moved to Rome with A.M. During that time, the mother was heavily influenced by the father and it appears that her decision as to A.M.’s care was not entirely voluntary. Also, and perhaps more importantly, the paternal great-grandparents’ own actions indicate that they did not believe the mother had abandoned A.M. or that she had voluntarily relinquished custody to them. Each time the mother separated from the father she took A.M. with her to reside with the maternal grandmother. There is no evidence indicating that the paternal great-grandparents objected to the mother’s taking A.M. Likewise, when the mother decided to move to Rome with A.M., the paternal great-grandparents did not assert that she had abandoned A.M. to them or had relinquished custody of A.M. to them. Instead, they acquiesced in the mother’s decision and even returned A.M. to the mother after A.M. had visited with them over a weekend. Further, the record contains a handwritten note from the paternal great-grandmother in which she states, “I baby-sit [A.M.] while [the mother] works.” The paternal great-grandmother’s babysitting duties must have occurred between April 2004 and the time the mother moved to Rome with A.M. because that was the only time that the mother worked when A.M. was in the paternal great-grandmother’s care.

Likewise, as to the juvenile court’s explicit finding that the mother was not unfit, we note that the juvenile court was not called upon to decide simply whether the mother might have been unfit at some time in the past. It was called upon to decide whether the mother was presently unfit to exercise her parental responsibilities in light of all of the evidence presented. See, e.g., Michael v. Swords, 568 So.2d 836 (Ala.Civ.App.1990). Though there was significant evidence of the mother’s past misconduct, the record reflects that much of her past misconduct was attributable to the influence of the father. Since her April 2004 separation from the father, the young, relatively unskilled mother had stopped using drugs. Also, she had managed to provide a home for, and to care for, another child, albeit with family and public assistance. According to the social worker who directed the Child Advocacy Center classes, the mother had also demonstrated the requisite skills and intentions to put A.M.’s interests first. The mother testified that she had financial resources to provide for A.M. and to meet A.M.’s material needs. Further, the mother was actively seeking employment, and she apparently had managed to maintain a close relationship with A.M. in the face of a less than welcoming environment. The mother’s uncontradicted testimony was that A.M. cried for her when she left her at the end of visitation at the paternal great-grandparents.

We do not think a further recitation of the evidence in the present case is warranted. As stated above, the issue is not whether this court would have made the same decision as the juvenile court had we been sitting in its place. The issue is whether the juvenile court’s findings are unsupported by the evidence so as to be plainly and palpably wrong. We cannot conclude that they are. Thus, we must affirm the juvenile court’s judgment as to its custody award to the mother.

As to the mother’s argument that the trial court erred when it awarded the paternal great-grandparents’ visitation rights, the grandparent-visitation statute does not purport to authorize visitation awards to great-grandparents. See Ala. Code 1975, § 30-3-4.1. Our courts cannot “broaden the coverage of § 30-3^4.1 ... to include persons not contemplated by the act.” T.R.S.S. v. R.S., 828 So.2d 327, 330 (Ala.Civ.App.2002). As to the issue of great-grandparent visitation, therefore, the trial court’s judgment is due to be reversed.

As to the mother’s appeal, the juvenile court’s judgment is hereby reversed and the cause remanded for the juvenile court to enter a judgment consistent with this opinion. As to the paternal great-grandparents’ cross-appeal, the juvenile court’s judgment is hereby affirmed.

2050092 — APPEAL DISMISSED.

2050093 — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

      . Rome is approximately 40 miles from Jamestown.

      . Although the circuit court’s conclusion that it did not have jurisdiction to entertain the issues of child custody, child support, and visitation arguably was erroneous, see, e.g., Ex parte Jones, 896 So.2d 553 (Ala.Civ.App.2004), no party objected to the severance and transfer. Likewise, no party questioned below and no party questions on appeal whether the juvenile court had subject-matter jurisdiction in the present case. We note that the juvenile court has jurisdiction over paternity actions. See Ala.Code 1975, § 26-17-10(a); see also Ala.Code 1975, § 12-15-31(2). It also has jurisdiction over certain custody-related issues in conjunction with paternity actions. See Ala.Code 1975, § 26-17-14(d) (the juvenile court's order in a paternity action "may contain any other provision ... concerning the duty of support [and] the custody of the child"); see also Ala.Code 1975, § 12-15-30(b)(1).

      . The Department of Human Resources, which was not a party to the juvenile-court proceedings, completed a home study on the mother. A home-study report is not contained in the record on appeal, however. The record reflects that the mother completed a series of Child Advocacy Center classes that were intended to assist divorced parents "to understand how important it is to keep their kids out of the middle after a divorce.” Also, the mother registered with the "color-code program,” but she subsequently became pregnant and stopped participating in the program when her physician placed her on bed rest. The record does not reflect whether the father participated in any of the court-ordered programs.

      . The record does not reflect why the presiding judge reassigned the divorce action, and no party objected to the reassignment. See Ala.Code 1975, § 12-17-24.2(c) (authorizing a presiding circuit court judge to reassign a case to another circuit court or district court judge of the circuit when the family-court-division docket is overcrowded); Rule 13, Ala. R. Jud. Admin, (authorizing a presiding judge to "temporarily assign circuit or district court judges to serve within the circuit or in district courts within the circuit”).

      . The amended order specifically reserved the issue of child support. In July 2006, this court remanded the present case to the juvenile court for it to enter a final judgment addressing the issue of child support. That order has been entered and forwarded to this court in compliance with our direction on remand.

      . The paternal great-grandparents raise additional issues in their appellate brief. They contend that tire circuit court's order awarding the father pendente lite custody of the child in June 2004 and its order transferring the paternity and custody issues to the juvenile court were valid and were not an abuse of discretion. No party has alleged that either of the foregoing orders was erroneous, and we find no jurisdictional defect as to the juvenile court's hearing of this case. See note 2, supra. Thus, we will not address these "issues.”

      . The mother also challenges the juvenile court’s six-month custody-transfer schedule. However, because the juvenile court did not stay the custody transfer pending appeal, and because the six-month transfer period has already passed, this issue is moot and we will not address it.

      . The record contains filings and case-action-summary sheets from both the divorce action and the juvenile-court action. Several pleadings, motions, and orders were captioned for both the divorce action and the juvenile-court action, though we have only discussed the pertinent filings. It appears as if the court clerk was confused as to where to file some of the pleadings, motions, and orders because some of the filings appear in only one action when they were purportedly filed in both actions, and some appear in both actions, though they clearly relate only to the issues that were before the juvenile court.

      .Only the juvenile court had rendered a judgment as of the date that the paternal great-grandparents filed their notice of appeal. See Rule 58(a), Ala. R. Civ. P. To conclude otherwise would require us to ignore the fact that the October 2005 judgment purports, on its face, to be the action of the juvenile court (not the circuit court) and, more importantly, that it purports to address issues that were only before the juvenile court. The circuit court clerk's action in "entering” the juvenile court's judgment in the divorce action did not result in the entry of a judgment rendered by the circuit court in the divorce action. See Rule 58(c), Ala. R. Civ. P.
      We note, however, that if the paternal great-grandparents' appeal was not in fact from the juvenile court's judgment, it would be due to be dismissed because the circuit court has not entered a judgment addressing the claims that remained before it, i.e., the father’s and mother's divorce and the division of marital property. Because the circuit court has not entered a judgment addressing all claims that remained pending before it, any appeal in the divorce action would be premature. See Rule 54(b), Ala. R. Civ. P.; Hinson v. Hinson, 745 So.2d 280 (Ala.Civ.App.1999).

      . Based on our treatment of the paternal great-grandparents' appeal as a cross-appeal in the juvenile-court action, the purported appeal in the divorce action is hereby dismissed.

      . The mother gave birth to a son in March 2005. The son was not the biological child of the father in the present case. Although the son’s father did not reside with the mother, the son's father did financially support the mother and the son.

      . We have been directed to no common-law authority pursuant to which the trial court could have awarded visitation to the paternal great-grandparents. The paternal great-grandparents argue that because the child was a dependent child the juvenile court had the discretion to award them visitation under the Alabama Juvenile Justice Act, Ala.Code 1975, § 12-15-1 et seq. The juvenile court specifically concluded that the child was not a dependent child, and, as we have stated, that conclusion is supported by the evidence.