author: MURDOCK, Judge. PITTMAN, Judge,

text:
    William Randle NEW v. Wendy Gayl McCULLAR.
    2040866.
    Court of Civil Appeals of Alabama.
    June 30, 2006.

      Stephen P. Johnson of Brackin, McGriff & Johnson, P.C., Foley, for appellant.
    David A. Simon of Wills & Simon, Bay Minette, for appellee.
   MURDOCK, Judge.

William Randle New (“the father”) appeals from a judgment of the Baldwin Circuit Court denying his petition for a modification of the custody of his son and modifying the father’s midweek visitation.

The father and Wendy Gayl McCullar (“the mother”) were divorced in 2000. The parties have one child from the marriage, a son who was nine years old at the time of the trial in the present action. The divorce judgment, which incorporated an agreement of the parties, provided that

“the parties shall share joint legal and joint physical custody of the minor child, and the child’s primary residence shall be with the Defendanb-Mother, subject to all rights of visitation on the part of the Plaintiff-Father....”

The father was awarded extensive “visitation,” including (1) alternate weekends from 6:00 p.m. on Thursday until the following Monday at the beginning of school or 8:30 a.m., whichever comes first, (2) two consecutive nights of overnight visitation on alternate weeks, from 6:00 p.m. on Tuesday until Thursday morning at the beginning of school, or 8:30 a.m., (3) six weeks of summer visitation, and (4) designated holidays that alternated annually between the parents. According to the father, he had physical custody of the child at least one half of the time; according to the mother, the father had custody of the child 35 to 40 percent of the time.

The agreement further provided:

“2. The parties agree that neither parent will take the minor child over 100 miles outside of the area in which the parties live without notifying the other party of the same and providing an itinerary for the child. The area in which the child lives shall be defined as Mobile County, Alabama, Baldwin County, Alabama, and Escambia County, Florida.
“3. The parties agree that if the custodial parent elects to relocate elsewhere within the three-county area described in the next preceding paragraph, then the parties shall meet at a midpoint for purposes of pick-up and delivery for child visitation.
“4. The parties agree that if either party relocates their primary residence outside of the three-county area described above, then that party shall bear all costs of transportation for visitation. Neither party shall relocate their primary residence outside the three-county area described above without first providing the other party with a sixty (60) day written notice of the same.”

The mother had been a stay-at-home mother since the birth of the parties’ child, and that status continued after the divorce. The father was employed as the general manager of an automobile dealership in Mobile. After the divorce, both parties continued to live in the same area of Baldwin County, and both parents actively participated in the child’s school activities and his extracurricular activities.

In 2001, the mother married Chris McCullar. In 2002, the mother and McCullar had a son; the parties’ child has a good relationship with his younger half brother. McCullar is a tennis professional who had worked for approximately eight years at the Rock Creek Country Club. In 2003, the Rock Creek Country Club was sold to a new owner, and McCullar’s income decreased substantially. In the spring of 2004, McCullar accepted a job as a tennis professional in Birmingham that paid a salary comparable to his previous salary at the Rock Creek County Club.

On May 13, 2004, the father filed a petition to modify, alleging that the mother intended to relocate to Birmingham, that the relocation would not be in the child’s best interests, and that a temporary restraining order should be issued pursuant to the Alabama Parenb-Child Relationship Protection Act, Ala.Code 1975, § 30-3-160 et seq. The petition to modify sought (1) a temporary restraining order prohibiting the mother from relocating the child to Birmingham, (2) a modification of the divorce judgment establishing the primary residence of the child with the father, and (3) a termination of the father’s child-support obligation.

On June 15, 2004, the trial court entered an ex parte temporary order restraining the mother from changing the child’s residence from Baldwin County. The mother filed an answer and a counterclaim seeking, among other things, permission to move the child to Birmingham and an increase in child support.

On August 9, 2004, the trial court held a hearing on temporary matters, apparently without taking testimony. On October 6, 2004, the trial court entered a temporary order that the child remain in Baldwin County pending a final hearing in this matter. The order provided that, if the mother should relocate from Baldwin County, the custody of the child would be vested with the father pending the final hearing.

The mother moved to Birmingham a few weeks after the August 9, 2004, hearing. After the mother moved to Birmingham, the child resided with the father in Baldwin County, and he was living with the father at the time of the trial in May 2005. While he lived with the father, the child continued to attend Bayside Academy, a private school that he had attended since preschool, and he continued to do well in school.

In early 2005, McCullar took a job in Pensacola, Florida, which is in the three-county area designated in the divorce judgment. McCullar and the mother testified that the move to Pensacola was made primarily to assist the mother in retaining primary custody of the child. The mother’s parents and several members of her extended family live in Pensacola and are available to help her care for the child.

In May 2005, the trial court held an ore tenus hearing. In June 2005, the trial court entered a judgment in which, among other things, it determined that the standard of Ex parte McLendon, 455 So.2d 863 (Ala.1984), applied and that the father had presented insufficient evidence to meet his burden of proof under the McLendon standard with respect to a change of custody. The judgment (1) denied the father’s petition for a modification of custody, (2) continued the original shared-custody arrangement for the summer of 2005, and (3) modified the father’s custodial time with the child during the school year by requiring the father to exercise his midweek custodial rights in Escambia County, Florida. The trial court made this modification because it determined that it would not be in the child’s best interests to require him to wake up early and travel back to Pensacola for school on Thursdays. The father did not file a postjudgment motion.

The father appeals, contending (1) that the trial court erred in applying the McLendon standard, instead of the best-interests standard of Ex parte Couch, 521 So.2d 987 (Ala.1988), (2) that it would be in the child’s best interests to live with the father and to continue attending Bayside Academy, and (3) that the trial court erred in modifying the father’s visitation schedule when that issue had not been raised by the pleadings of either party. The mother argues that the provision in the divorce judgment that she was to provide the child’s primary residence constitutes a custodial preference and that application of the McLendon standard was therefore correct.

The touchstone for custody decisions is the “welfare and best interests of the child.” Willing v. Willing, 655 So.2d 1064, 1065 (Ala.Civ.App.1995). Because the trial court heard ore tenus evidence, its judgment is afforded a presumption of correctness. Ex parte Fann, 810 So.2d 631, 633 (Ala.2001). The ore tenus rule does not, however, apply to the trial court’s determination of which legal standard to apply. That is a question of law that is afforded no presumption of correctness. Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994); and Daniel v. Daniel, 842 So.2d 20, 21 (Ala.Civ.App.2002).

“There are different standards for a trial court to use in ruling on questions of child custody. If one parent has previously been granted primary custody or if one parent has ‘given up’ legal custody, then an existing custody arrangement will be modified only if the modification materially promotes the best interests and welfare of the children. Ex parte McLendon, 455 So.2d 863, 865-66 (Ala.1984). If neither parent has previously been given primary physical custody, then ‘the best interests of the child’ standard applies. Ex parte Couch, 521 So.2d 987, 989 (Ala.1988).”

Ex parte Johnson, 673 So.2d 410, 413 (Ala.1994).

The McLendon standard

“ ‘is a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child’s healthy growth into adolescence and adulthood. The doctrine requires that the party seeking modification prove to the court’s satisfaction that material changes affecting the child’s welfare since the most recent 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. Frequent disruptions are to be condemned.’ ”

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

The central question in this case is which standard — McLendon or Couch— should be applied. If the divorce judgment awarded primary or sole physical custody to the mother, the McLendon standard applies. If the divorce judgment awarded joint physical custody, the best-interests standard of Couch applies. In this case, we conclude that the trial court incorrectly required the father to meet the McLendon standard in order to obtain a modification of the divorce judgment as it relates to custody.

We begin our analysis with Alabama’s joint-custody statute, Ala.Code 1975, §§ 3-30-150 through -157. Section 30-3-151(3) defines “joint physical custody” as

“[pjhysical custody ... shared by the parents in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time.”

The custody arrangement set forth in the parties’ agreement and incorporated into the divorce judgment fits within this statutory definition of “joint physical custody.” The agreement provided that the parties would share “joint legal and joint physical custody” of the child. The judgment provided for the child to reside with the father almost one half of every month during the school year and approximately one half of each summer. It also provided that the child would spend approximately one half of certain designated holiday periods with the father. That arrangement clearly “assures the child frequent and substantial contact with each parent.” § 30-3-151(3).

The evidence in the record also shows that both parties in fact had frequent and substantial contact with the child; both parties lived in the same part of Baldwin County, and the father frequently took the child to, or picked him up from, school and various activities. There is also evidence in the record indicating that the child frequently stayed overnight with the father and that both parties were involved with the child’s school and extracurricular activities.

In light of the foregoing factors, we do not consider it material that the mother had custody for a majority of the time each month. The statute does not require equal durations of time, and we have previously determined that the allocation to one parent of approximately 50 more days of physical custody per year did not constitute a custodial preference so as to warrant the application of the McLendon standard. Rehfeld v. Roth, 885 So.2d 791 (Ala.Civ.App.2004). See also Reuter v. Neese, 586 So.2d 232 (Ala.Civ.App.1991) (Couch standard applied to an arrangement under which one parent had primary custody during the school year and the other parent had primary custody during the summer).

Similarly, under the circumstances of this case, we do not find that the express declaration that the parties were awarded joint physical custody was contradicted by the statement in the divorce judgment that “the child’s primary residence shall be with [the mother]” or by the references to the father’s “visitation.” To the extent that the divorce judgment is internally inconsistent, we conclude that it in fact created a joint-physical-custody arrangement, as defined by § 30-3-151(3).

Finally, we note that the policy behind the McLendon standard — to minimize the disruption in the young child’s life — is neutralized in this case. There will be a substantial disruption in the child’s life regardless of the trial court’s decision. If the father’s petition is granted, the child will be uprooted from his mother, stepfather, and half brother; if the father’s petition is denied, the child’s time spent with his father will diminish considerably, and the child will be uprooted from his community, his friends, and the school that he has always attended. See Couch, 521 So.2d at 990 (because of the mother’s proposed move, the children would be uprooted even if the custody did not change); and Dilorio v. Long, 839 So.2d 650 (Ala.Civ.App.2002) (affirming a change of custody based on the former custodial parent’s move out of the state).

We conclude that the trial court erred by applying the McLendon standard. We therefore reverse the judgment and remand the cause for the trial court to apply the proper standard. See Rehfeld, 885 So.2d at 794 (when trial court erroneously applies the more stringent standard and denies a modification, the proper approach is to reverse the judgment and remand the cause for the trial court to apply the proper standard); and Davis v. Davis, 753 So.2d 513 (Ala.Civ.App.1999).

In light of our disposition of this case, we pretermit consideration of the father’s other arguments.

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

REVERSED AND REMANDED.

BRYAN, J., concurs.

PITTMAN, J., concurs in the result, with writing, which CRAWLEY, P.J., and THOMPSON, J., join.

PITTMAN, Judge,

concurring in the result.

I concur in the result to reverse on the authority of Rehfeld v. Roth, 885 So.2d 791, 796 (Ala.Civ.App.2004) (“Our conclusion that the trial court improperly applied McLendon’s heavier burden in a custody-modification proceeding where Couch supplied the proper burden of proof necessitates our reversal of the trial court’s judgment and our remand of the cause.”).

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

      . There is evidence indicating that the child's maternal grandparents helped the father care for the child while the father had temporary custody.

      . The trial court determined that the McLen-don standard applied and that the father had not met the burden imposed by that standard. The father does not argue on appeal that he met the burden of the McLendon standard.

      . Citing Ex parte Johnson, 673 So.2d 410, 413 (Ala.1994); Berrey v. Berrey, 622 So.2d 1316 (Ala.Civ.App.1993); and Jenkins v. Jenkins, 541 So.2d 19, 19 (Ala.Civ.App.1989), the mother argues that the designation of the child’s "primary residence” constitutes a custodial preference that requires the application of the McLendon standard. The cited cases are not dispositive in this case. First, those cases are distinguishable because they each involve a parent with primary physical custody. See Johnson, 673 So.2d at 413 (the parties had been awarded joint custody, but the mother was designated as having “primary custody”); Berrey, 622 So.2d at 1317 (the mother would provide the child’s "primary residence,” and the father had visitation for only four days per month); and Jenkins, 541 So.2d at 19 (mother would provide the children’s primary residence and the father would have reasonable visitation rights). Further, those cases were decided before the effective date of § 30-3-151(3), i.e., January 1, 1997.


source: Caselaw Access Project

author: BOLIN, Justice.

license: Public Domain

text:
    Ex parte Wendy Gayl McCULLAR. (In re William Randle New v. Wendy Gayl McCullar).
    1051482.
    Supreme Court of Alabama.
    Oct. 13, 2006.
    David A. Simon of Wills & Simon, Bay Minette, for petitioner.
    Submitted on petitioner’s brief only.
   BOLIN, Justice.

The petition for the writ of certiorari is denied.

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

WRIT DENIED.

NABERS, C.J., and SEE, HARWOOD, and STUART, JJ., concur.


author: CRAWLEY, Presiding Judge.

text:
    CHOICE BUILDERS, INC. v. COMPLETE LANDSCAPE SERVICE, INC., and Alex Lawley.
    2040507.
    Court of Civil Appeals of Alabama.
    Aug. 18, 2006.
    Certiorari Denied Oct. 13, 2006 Alabama Supreme Court 1051717.

      James A. Kee, Jr., and Jon M. Hughes of Kee & Selby, LLP, Birmingham, for appellant.
    John E. Medaris, Pelham, for appellees.
   On Application for Rehearing

CRAWLEY, Presiding Judge.

The opinion of this court issued on March 31, 2006, is withdrawn, and the following is substituted therefore.

Robert Morin and Carleen Morin sued Choice Builders, Inc. (“CBI”), along with several other companies, in 2001. Among other things, the Morins alleged that CBI had negligently supervised the construction of a retaining wall behind their house. CBI, as a third-party plaintiff, sued Complete Landscape Service, Inc., and Alex Lawley (collectively “CLS”), alleging that CLS was obligated to indemnify CBI to the extent CBI might be held liable to the Morins for any damages. CLS moved for a summary judgment as to CBI’s claims. The trial court granted that motion and, finding no just reason for delay, made that order final pursuant to Rule 54(b), Ala. R. Civ. P. CBI timely appealed, whereupon this appeal was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

Although the underlying circumstances of this case are somewhat complicated, the facts as they relate to CBI’s claims against CLS, and CLS’s defenses to those claims, are simple. The Morins’ suit against CBI initially alleged only that when CBI built the Morins’ house the installation of an exterior insulation and finishing system was improperly performed. Later, in January 2003, the Morins amended their complaint to allege that CBI had negligently supervised the construction of a retaining wall behind the Morins’ house. Only the portion of the Morins’ action relating to the retaining wall is relevant to this appeal.

The record indicates that before constructing the Morins’ house in 1993 CBI built a wooden cross-tie retaining wall at the rear of the Morins’ lot. Robert Morin testified in his deposition that in 2000 he noticed that the retaining wall was bulging outward. At that time Mr. Morin contacted Terry Phillips, a representative of CBI, who visited the site and looked at the wall. Phillips allegedly stated that the wall should have been a concrete wall. Following that discussion, the Morins began construction of a new concrete wall approximately 15 feet away from the wooden cross-tie wall. The old wall was left standing during the construction of the new wall. Mr. Morin testified that on Labor Day of either 2001 or 2002, before the completion of the new wall, the wooden cross-tie wall collapsed. As a result, Mr. Morin claimed, portions of his house jutted out over empty space, and he feared his house would fall down the hill the wall had previously held in place.

Consequently, the Morins amended their complaint against CBI in January 2003 to allege that CBI’s negligence during the installation of the wooden cross-tie wall had led to its collapse. In February 2003, CBI, as a third-party plaintiff, sued CLS, the subcontractor it had used during the construction of the wooden wall. CBI alleged that it was CLS’s faulty construction of the wooden cross-tie retaining wall that had led to the collapse of the wall. In short, CBI asserted that if it were found liable to the Morins, then CLS would be liable to CBI for those damages. More specifically, CBI argued that, based upon CLS’s negligence, breach of contract, and breach of warranty, CLS is obligated to indemnify CBI for any damages it may owe the Morins.

CLS moved for a summary judgment, arguing that because the Morins and CBI were aware of the wall bulging outward in 2000, the two-year statute of limitations imposed by § 6 — 2—38(¿), Ala.Code 1975, expired before the Morins amended their complaint or CBI brought its claims against CLS. Additionally, on appeal CLS elaborates upon several arguments it loosely made at the trial-court level in support of its motion for a summary judgment, including that CBI did not dispute any of the facts CLS alleged in its motion for a summary judgment; that the doctrine of spoliation of evidence mandates summary judgment because the wooden wall has been completely destroyed by the Morins; that other explanations for the collapse of the wooden wall exist besides CLS’s negligence or the breach of any contract or warranty; that there was no indemnity agreement between CLS and CBI; and that there was no contract or warranty between CLS and CBI.

“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion.... ’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).
“ ‘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. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994).”

Singleton v. State Farm Fire & Cas. Co., 928 So.2d 280, 283 (Ala.2005)(opinion on application for rehearing).

In its brief to this court, CBI argues that its action against CLS is timely based on our supreme court’s holding in Ex parte Stonebrook Development, L.L.C., 854 So.2d 584 (Ala.2003), which addressed the issue of when the statute of limitations begins to run on an indemnity claim.

The facts in Stonebrook are substantially similar to the facts of this case. In Stonebrook, the plaintiff was a corporation formed for the purpose of establishing a residential neighborhood. Stonebrook, 854 So.2d at 586. The defendant in Sto-nebrook used plans prepared by the third-party defendant to make a bid on the plaintiffs project. Id. After the defendant was sued because of its late performance on the project, the defendant sued the third-party defendant in an indemnity action alleging negligence. Id. As in Sto-nebrook, the statute-of-limitations issue before us concerns an indemnity action alleging negligence on the part of a third-party defendant. The Morins sued CBI because the wooden cross-tie wall that CBI had contracted to build collapsed. CBI in turn sued CLS because CLS was the subcontractor that CBI had relied upon to perform the construction of that wall.

In Stonebrook, the supreme court, quoting this court, observed that “ ‘[flacing the possibility of paying monetary damages to another party, and actually paying such damages, are not the same.’ ” 854 So.2d at 589. In Stonebrook, our supreme court held that the accrual of a negligence cause of action that a third-party plaintiff has against a third-party defendant does not begin until it is determined the third-party plaintiff is liable for damages. 854 So.2d at 591; see also American Commercial Barge Line Co. v. Roush, 793 So.2d 726, 729-30 (Ala.2000).

Although the court in Stonebrook was interpreting § 6-5-221, Ala.Code 1975, it specifically noted that the operative principles behind that statute of limitations were the same as those under § 6-2-38, Ala. Code 1975, which contains the statute of limitations at issue in this case. Ex parte Stonebrook, 854 So.2d at 590.

Although CLS argues that the statute of limitations began to run when the Morins and the representative of CBI observed the bulging wall in 2000, that is only true in regard to the claims the Mo-rins may have against CBI or CLS, not in regard to the indemnity claim that CBI has against CLS. Although it is true that the Morins might have suffered actual injury or loss at that point because they then, allegedly, were compelled to build the concrete wall to replace the wooden cross-tie wall, CBI had not yet suffered any injury or loss. CBI only faced the possibility of paying monetary damages to the Morins when the Morins observed the bulging wall. CBI’s indemnity action based on negligence against CLS would not accrue until the trial court adjudicated its liability to the Morins.

The cases CLS cited in its brief to this court for the proposition that CBI’s third-party indemnity claim against CLS is untimely, Chandiwala v. Pate Construction Co., 889 So.2d 540 (Ala.2004), and Certain-Teed Corp. v. Russell, 883 So.2d 1266 (Ala.Civ.App.2003), are not relevant to this case because they do not pertain to when a claim for indemnity accrues. Rather, those cases concern when a plaintiffs cause of action for damage to his or her home accrues. Although such cases would perhaps be relevant in a defense against the Morins’ action, see Rule 14(a), Ala. R. Civ. P., they are not relevant in maintaining a defense solely against CBI’s indemnity claim. Consequently, CBI’s action against CLS is timely.

CLS also argues that CBI, in its response to CLS’s motion for a summary judgment, did not contest any of the facts asserted by CLS. We note that those factual averments were more properly applicable to the Morins’ claims, not CBI’s indemnity claim. Were we to hold that a third-party plaintiff must dispute the same facts against a third-party defendant that it must assert against the plaintiff in making its defense, we would force a nonsensical requirement upon third-party plaintiffs.

CLS also makes a spoliation argument in favor of affirming the trial court’s summary judgment; however, that argument is inapplicable to this case. CLS asserts that because the wooden cross-tie wall has been removed by the Morins the doctrine of spoliation of evidence warrants summary judgment in its favor. Spoliation is “ ‘an attempt by a party to suppress or destroy material evidence favorable to the party’s adversary.’ ” Vesta Fire Ins. Corp. v. Milam & Co. Constr., Inc., 901 So.2d 84, 93 (Ala.2004)(quoting Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 176 (Ala.2000)). And, “where the plaintiff is guilty of spoliation, the sanction of dismissal of the claim may be warranted.” Id. In this ease, CBI has not been alleged to have attempted to suppress or destroy material evidence favorable to CLS. No facts have been alleged to indicate that CBI destroyed the old wall.

The other arguments that CLS raises in its appellee’s brief or in its brief in support of its application for rehearing were not argued at the trial-court level as a reason for entering a summary judgment against CBI; thus we will not now consider those arguments on appeal. Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003)(stating that the general rule that permits an appellate court to affirm a trial court on any ground, even one not argued to the trial court, fails in application where due-process constraints require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance, such as when a summary-judgment mov-ant fails to assert to the trial court a particular argument, thus not triggering the responding party’s burden to produce substantial evidence on that issue or to argue that issue).

Because CBI sued CLS, at most, two months after CBI was sued by the Morins, its third-party action against CLS seeking indemnification was timely. Furthermore, because the other arguments that CLS made to this court or to the trial court are inapplicable to this case, we reverse the trial court’s summary judgment and remand this case for further proceedings.

APPLICATION OVERRULED; OPINION OF MARCH 31, 2006, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

THOMPSON, PITTMAN, MURDOCK, and BRYAN, JJ., concur.

      . Although CBI’s claims against CLS are based both in contract and in negligence, both parties on appeal discuss the statute-of-limitations issue as if only the shorter two-year limitations period applicable to negligence actions is applicable. Also, although CBI seeks indemnity from CLS, the substantive legal theories upon which the indemnity is sought are (1) negligence, (2) breach of contract (i.e., breach of an oral contract between CBI and CLS, whereby CLS was required to construct the wall in a proper manner), and (3) breach of warranty.

      . " '[0]ur courts have long recognized that non-contract causes of action accrue only when the plaintiff actually suffers injury or loss.’ " Ex parte Stonebrook Dev., L.L.C., 854 So.2d at 589 (quoting Matthews Bros. Constr. Co. v. Stonebrook Dev., L.L.C., 854 So.2d 573, 578 (Ala.Civ.App.2001)).

      . See also Rule 14, Ala. R. Civ. P., which was " 'adopted to prevent third-party claims, which are contingent on the outcome of original actions against third-party plaintiffs, from being dismissed as premature when brought in the same proceeding as the original action.' " Ex parte Stonebrook Dev., L.L.C., 854 So.2d at 590-91 (quoting Matthews Bros. Constr. Co., 854 So.2d at 579 n. 3.).


author: PER CURIAM.

text:
    Nellie Mitchem KUYKENDALL v. STATE of Alabama.
    2050402.
    Court of Civil Appeals of Alabama.
    Sept. 1, 2006.
    Certiorari Denied Oct. 13, 2006 Alabama Supreme Court 1051782.

      J. David Robinson, Daleville, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   PER CURIAM.

Nellie Mitchem Kuykendall appeals from a judgment of the Henry Circuit Court ordering the condemnation of a 2005 Chevrolet Silverado pickup truck (“the truck”). We reverse and remand.

On September 9, 2005, the State filed a civil-forfeiture complaint in the trial court ■against Kuykendall and her son, Robert Ray Yaun, seeking the forfeiture of the truck. The State claimed that the truck should be forfeited pursuant to § 20-2-93, Ala.Code 1975, because Yaun had been caught driving the vehicle while in possession of methamphetamine.

On September 29, 2005, Kuykendall and Yaun filed separate answers, both stating that Kuykendall was the sole owner of the truck and denying the material allegations of the complaint. The trial court conducted an ore tenus hearing on November 30, 2005. On December 6, 2005, the trial court entered a judgment against Kuyken-dall and Yaun and ordered that the truck be forfeited to the State.

Subsequently, on December 30, 2005, Kuykendall filed a postjudgment motion for a judgment as a matter of law or, in the alternative, for a new trial. The trial court denied that motion, and Kuykendall timely appealed to this court.

The relevant facts from the record are as follows. On August 19, 2005, Yaun borrowed Kuykendall’s truck in order to drive his brother from Florida to the airport in Atlanta, Georgia. While returning to Florida from Atlanta, Yaun was traveling through Henry County, Alabama, when police officer Tony Smith stopped Yaun for speeding. During the stop, Officer Smith noticed that Yaun appeared “nervous and fidgety,” and, therefore, Officer Smith decided to call for backup. When backup officers arrived, Officer Smith obtained Yaun’s written consent to search the truck. Officer Smith’s search of the truck revealed various suspicious containers in different parts of the truck, including a “crazy glue” container, two small bottles, and a vial, all of which contained a crystalized substance or residue. Also found in the truck was a bottle containing the same substance as the other containers, and that bottle fit perfectly with a decorative top on a necklace that Yaun was wearing. A field test of the containers revealed that the substance was crystal methamphetamine, which is listed as a controlled substance in § 20-2-27, Ala.Code 1975. The identification of the substance as methamphetamine was later confirmed by the Alabama Department of Forensic Sciences in Dothan. The police arrested Yaun and seized the truck.

Though the exact date is not clear from the record, it appears that, at some point in the early 1990s, Yaun was convicted on drug-related charges. Kuykendall testified that she was aware when she loaned Yaun the truck that Yaun had been arrested on a drug-related charge and that he had undergone treatment for drug problems. However, Kuykendall also testified that she had never seen Yuan with drugs or drug-related paraphernalia and that she thought he had been “clean” ever since his conviction in the early 1990s.

On appeal, Kuykendall contends that the trial court erred in entering a judgment in favor of the State because, she claims, the State failed to establish that Kuykendall knew or should have known that Yaun would transport illegal drugs in her truck.

On appellate review of a ruling from a forfeiture proceeding at which the evidence was presented ore tenus, the trial court’s judgment is presumed to be correct unless the record shows it to be contrary to the great weight of the evidence. Holloway v. State ex rel. Whetstone, 772 So.2d 475, 477 (Ala.Civ.App.2000). In other words, a trial court’s judgment based on ore tenus evidence will not be reversed absent a showing that it amounts to an abuse of discretion. Hillegass v. State, 795 So.2d 749, 753 (Ala.Civ.App.2001).

In order to obtain the forfeiture of a vehicle pursuant to § 20-2-93(a)(5), Ala.Code 1975, the State must establish that the vehicle has been “used, or ... intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment” of a controlled substance. “ ‘ “Under § 20-2-93 the State must establish a pri-ma facie case for the seizure, condemnation, and forfeiture of the property.... The statute is penal in nature and, as such, should be strictly construed.” ’ ” Ex parte McConathy, 911 So.2d 677, 681 (Ala.2005) (quoting Holloway v. State ex rel. Whetstone, 772 So.2d at 476, quoting in turn State v. Smith, 578 So.2d 1374, 1376 (Ala.Civ.App.1991)). To justify the forfeiture of a vehicle, the trier of fact must be reasonably satisfied that the vehicle was used to illegally transport or to facilitate the transportation, sale, receipt, possession, or concealment of a controlled substance. Ex parte Dorough, 773 So.2d 1001, 1003 (Ala.2000).

The record reveals sufficient evidence upon which the trial court could have concluded that the truck was used to illegally transport a controlled substance. Alabama courts have held that the presence of illegal drugs in a vehicle is sufficient to justify forfeiture when the evidence indicates that either the driver or the owner of the vehicle knew or should have known that the drugs were present. See Alexander v. State, 904 So.2d 1265, 1269 (Ala.Civ.App.2004); Ex Parte Dorough, 773 So.2d at 1002-03; and Malholtra v. State, 717 So.2d 425, 426 (Ala.Civ.App.1998). The police officers found multiple containers with crystal methamphetamine residue at various places in the truck, including a bottle that could attach to a necklace that Yaun was wearing. Thus the evidence supports a finding that at least Yaun, the driver, knew that a controlled substance was present in the truck. The testimony of the police officers also clearly establishes that the truck was being used to transport a controlled substance. Therefore, the trial court could reasonably have found that the State established its prima facie case.

However, the trial court’s second finding, that Kuykendall did not establish an adequate defense to forfeiture, is problematic. Section 20-2-93(h), Ala.Code 1975, states, in part:

“An owner’s or bona fide lienholder’s interest in any type of property other than real property and fixtures shall be forfeited under this section unless the owner or bona fide lienholder proves both that the act or omission subjecting the property to forfeiture was committed or omitted without the owner’s or lienholder’s knowledge or consent and that the owner or lienholder could not have obtained by the exercise of reasonable diligence knowledge of the intended illegal use of the property so as to have prevented such use.”

Thus, a “lack of knowledge or consent is an affirmative defense, available after the State has made a prima facie case for forfeiture.” State ex rel. Williams v. One Glastron Boat, 411 So.2d 795, 796 (Ala.Civ.App.1982). Kuykendall, as the owner of the truck, was required to show “that [she] had no knowledge or notice of the illegal use proved, and could not by reasonable diligence have obtained knowledge of the intended illegal use so as to prevent it.” Air Shipping Int’l v. State, 392 So.2d 828, 830 (Ala.1981). See also Robinson v. State, 587 So.2d 418, 419 (Ala.Civ.App.1991); Culpepper v. State, 587 So.2d 359, 360 (Ala.Civ.App.1991); and Edwards v. State, 550 So.2d 1035, 1037 (Ala.Civ.App.1989).

The record simply does not support a finding that Kuykendall had any knowledge that Yaun would transport a controlled substance in the truck. Though Kuykendall admitted that she was aware that Yaun had been convicted of a drug-related offense 10-12 years earlier, Kuyk-endall testified that she had no knowledge of any recent drug use by Yaun or any activity that would make her suspect that Yaun would possess or transport illegal drugs in the truck. The only evidence provided by the State regarding Kuyken-dall’s knowledge or reason to suspect that Yaun would transport a controlled substance in the truck is Yaun’s conviction for a drug-related crime in the early 1990s. Knowledge of that one conviction alone is not enough to establish that Kuykendall had knowledge of Yaun’s recent drug use or that he would use her truck to transport a controlled substance.

Kuykendall maintains that, even using reasonable diligence, she could not have discovered Yaun’s illegal use of the truck. We agree. Although § 20 — 2—93(h) does not provide detailed guidance as to what level of diligence is “reasonable,” Alabama courts have interpreted the statute to require reasonableness under the circumstances. See Air Shipping Int’l v. State, 392 So.2d at 830; Singleton v. State, 396 So.2d 1050, 1053-55 (Ala.1981); and Culpepper v. State, 587 So.2d 359, 360-61 (Ala.Civ.App.1991). In Singleton v. State, the Alabama Supreme Court explained:

“The requisite notice necessary to excite suspicion and stimulate inquiry is necessarily determined by the facts of each particular case. It may be notice imputed by law, such as the reputation and general character of the violator in the community in which he works and lives. It may be actual notice or knowledge of the violator’s disreputable character or conduct.”

396 So.2d at 1054 (citations omitted).

In Culpepper v. State, supra, this court reversed a judgment forfeiting a vehicle entered against Culpepper, whose brother had been caught driving the vehicle while in possession of illegal drugs, because the State had failed to present any evidence indicating that Culpepper knew of her brother’s drug use. 587 So.2d at 360-61. Although Culpepper’s brother had apparently been using illegal drugs for some time, the State failed to establish any information available to Culpepper that “should have put Culpepper on notice that ... [her vehicle] would be used for drug purposes.” 587 So.2d at 361. Therefore, under the circumstances, reasonable diligence did not require that Culpepper make detailed inquiry into her brother’s use of the vehicle.

In this case, just as in Culpepper, the State failed to establish any facts that would reasonably incite Kuykendall’s suspicion and stimulate inquiry into the use of her truck by Yaun. The only evidence that the State relied upon in support of its argument that Kuykendall should have been on notice that Yaun would use her truck to transport a controlled substance was Kuykendall’s knowledge that, more than ten years before the truck was seized, Yaun had been convicted of a drug-related offense. Evidence of Kuykendall’s awareness of Yaun’s 10-year-old drug conviction alone, without any evidence indicating that Kuykendall was aware of recent drug activity by Yaun, is not enough to support the conclusion that Kuykendall knew or should have known that her truck might be used to transport drugs. Further, Kuyk-endall testified that she rarely allowed Yaun to use her truck. At the time the police stopped Yaun, Kuykendall had loaned Yaun the truck for the sole purpose of driving her other son to the airport. It is unlikely, therefore, that illegal drugs had been in the vehicle during any time that Kuykendall could have discovered them. Given the evidence in the record on appeal, we must conclude that the trial court erred in ordering the truck to be forfeited pursuant to § 20-2-93, Ala.Code 1975.

REVERSED AND REMANDED.

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

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


text:
    James McCONICO, Jr. v. Grant CULLIVER et al. Chalmus Wright v. Grant Culliver et al.
    2050404 and 2050459.
    Court of Civil Appeals of Alabama.
    Oct. 6, 2006.
    Chalmus Wright, pro se.
    Kim T. Thomas, gen. counsel, and Greg Biggs, asst. gen. counsel, Department of Corrections, for appellee.
   CRAWLEY, Presiding Judge.

James McConico, Jr., and Chalmus Wright sued Warden Grant Culliver, Lieutenant John Crow, Correctional Officer Jason Shufford, and Correctional Officer Eugene Edwards (hereinafter referred to collectively as “the defendants”), alleging tort claims under state law and claims under 42 U.S.C. § 1983, including allegations that the defendants did not protect them from assault by other inmates, that they were improperly placed in segregation, and that they were not provided meaningful access to the courts while in segregation. The defendants moved for a dismissal or, in the alternative, for a summary judgment; the certificate of service on the motion did not reflect that the defendants served McConico with the motion. The trial court set the motion for a hearing on January 17, 2006. On January 16, 2006, before the hearing, the trial court granted the defendants’ motion for a summary judgment. McConico appealed, and Wright filed a timely postjudgment motion. Wright then appealed while his postjudgment motion was still pending before the trial court; both appeals were held in abeyance until the trial court denied Wright’s motion. See Rule 4(a)(5), Ala. R.App. P.

On appeal, Wright and McConico argue principally that the trial court erred by failing to allow them to be heard on the motion for a summary judgment by granting that motion before they had filed responses and before conducting the hearing set on the motion. The defendants have filed a stipulation with this court, conceding that the trial court’s grant of the motion for a summary judgment before the date set for the hearing without notice to McConico and Wright requires reversal of the judgment. See Van Knight v. Smoker, 778 So.2d 801, 805 (Ala.2000) (holding that once a trial court has set a date for a summary-judgment hearing, the court must allow the nonmoving party an opportunity to be heard); and Tharp v. Union State Bank, 364 So.2d 335, 338 (Ala.Civ.App.1978). Accordingly, we reverse the summary judgment entered in favor of the defendants and remand the cause for proceedings consistent with this opinion.

2050404 — REVERSED AND REMANDED.

2050459 — REVERSED AND REMANDED.

THOMPSON, PITTMAN, MURDOCK, and BRYAN, JJ., concur.