text:
    GREEN TREE-AL, L.L.C. v. Brian REYNOLDS, Fletcher Reynolds, and Gamble Properties, L.L.C.
    1060595.
    Supreme Court of Alabama.
    July 13, 2007.

      R. Austin Huffaker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant.

      Jon B. Terry of Bains & Terry, Bessemer, for appellees.
   LYONS, Justice.

Green Tree-AL, L.L.C., appeals from the trial court’s order denying its motion to compel arbitration. We affirm in part, reverse in part, and remand.

I. Factual Background and Procedural History

On October 26, 2001, Brian Reynolds refinanced an existing loan with Conseco Finance Corp.-Alabama, now known as Green Tree-AL, L.L.C. (“Green Tree”). The loan was secured by a mortgage on real property; events associated with foreclosure on the property precipitated the underlying litigation. One of the documents Brian Reynolds executed in connection with the loan was a promissory note to Green Tree. The note contained the following arbitration provision:

“9. ARBITRATION
“All disputes, claims, or controversies arising from or relating to the extension of credit evidenced by this Note or the relationships which result therefrom, or the validity of this arbitration clause or the entire Note, shall be resolved by binding arbitration by one arbitrator selected by Note Holder with my consent. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, Title 9 of the United States Code. Judgment upon the award rendered may be entered in any court having jurisdiction. The parties agree and understand that they choose arbitration instead of litigation to resolve disputes. The parties understand that they have a right or opportunity to litigate disputes in court, but that they prefer to resolve their disputes through arbitration, except as provided herein. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL, EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A COURT ACTION BY NOTE HOLDER AS PROVIDED HEREIN. The parties agree and understand that all disputes arising under case law, statutory law, and all other laws including, but not limited to, all contract, tort, and property disputes, will be subject to binding arbitration in accord with this Agreement. I agree that I shall not have the right to participate as a representative or a member of any class of claimants pertaining to any claim arising from or relating to the extension of credit evidenced by this Note. The parties agree and understand that the arbitrator shall have all powers provided by law and the Note. These powers shall include all legal and equitable remedies, including, but not limited to, money damages, declaratory relief, and injunctive relief. Notwithstanding anything hereunto [sic] the contrary, Note Holder retains an option to use judicial or nonjudicial relief to enforce a security agreement relating to the collateral secured in a transaction underlying this arbitration agreement, to enforce the monetary obligation or to foreclose on the collateral. Such judicial relief would take the form of a lawsuit. The institution and maintenance of an action for judicial relief in a court to foreclose upon any collateral, to obtain a monetary judgment or to enforce the security agreement, shall not constitute a waiver of the right of any party to compel arbitration regarding any other dispute or remedy subject to arbitration in this Note, including the filing of a counterclaim in a suit brought by Note Holder pursuant to this provision. For purposes of this arbitration clause, the term ‘parties’ means Note Holder and the undersigned borrower(s), collectively.”

Brian Reynolds defaulted on the loan. Green Tree thereafter foreclosed on the property and purchased the property at a foreclosure sale on January 14, 2003. Green Tree sold the property to James Ray and Cheryl Ray on October 27, 2004. Meanwhile, on October 22, 2004, Brian Reynolds deeded a portion of the mortgaged property to Gamble Properties, L.L.C. On November 5, 2004, Gamble Properties deeded that property to Fletcher Reynolds, Brian Reynolds’s father.

The Rays, as successors to the purchaser at the foreclosure sale, sued Brian Reynolds, Fletcher Reynolds, and Gamble Properties (hereinafter sometimes referred to collectively as “the Reynolds parties”) in an action seeking to quiet title and alleging slander of title. The Reynolds parties then filed a third-party complaint against Green Tree. The third-party complaint alleged that the mortgage Brian Reynolds had executed was incorrectly prepared by Green Tree in that Brian Reynolds did not intend to convey to Green Tree all of the property described in the mortgage. The Reynolds parties sought reformation of the mortgage.

Green Tree filed a motion to compel arbitration of the third-party complaint pursuant to the arbitration provision contained in the note executed by Brian Reynolds. Fletcher Reynolds and Gamble Properties opposed the motion with affidavits denying that they had agreed to arbitrate their disputes with Green Tree; Brian Reynolds did not oppose the motion. The trial court entered an order denying Green Tree’s motion to compel arbitration. Green Tree appealed from that order.

II. Standard of Review

“ ‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ ” Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-53 (Ala.2002) (quoting Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999)). Accord, General Motors Corp. v. Stokes Chevrolet, Inc., 885 So.2d 119, 121 (Ala.2003).

III. Analysis

The party seeking to compel arbitration has the initial burden of proving that a contract calling for arbitration exists and that that contract evidences a transaction substantially affecting interstate commerce. American Gen. Fin., Inc. v. Morton, 812 So.2d 282, 284 (Ala.2001). After a motion to compel arbitration has been made and properly supported, the burden then shifts to the nonmovant to present evidence that the arbitration agreement is invalid or that it does not apply to the subject dispute. Id. In this case, Green Tree had the initial burden of establishing the existence of a contract calling for arbitration that evidenced a transaction that substantially affected interstate commerce.

A. Brian Reynolds

Green Tree met its initial burden as to Brian Reynolds. The promissory note that Brian Reynolds signed containing the arbitration provision was submitted to the trial court and is a part of the record before this Court. The commercial loan evidenced by the note, in which the proceeds moved from a bank in Minnesota to a bank in Alabama, is clearly a transaction that substantially affected interstate commerce. In arguing that the transaction had no substantial affect upon interstate commerce, Brian Reynolds relies on Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000). Because Sisters of the Visitation is no longer the controlling law as to this point, his reliance on that case is misplaced. See Citizens Bank v. Alafabco, 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003); and Jim Walter Homes, Inc. v. Saxton, 880 So.2d 428 (Ala.2003). Therefore, the burden of persuasion shifted to Brian Reynolds to establish that he had a valid defense to the enforcement of the arbitration provision or that the arbitration provision is inapplicable. Brian Reynolds did not oppose Green Tree’s motion to compel arbitration and thus failed to meet his burden; therefore, the trial court erred in denying the motion to compel arbitration as to Brian Reynolds. Morton, 812 So.2d at 284.

B. Gamble Properties and Fletcher Reynolds

As to Gamble Properties and Fletcher Reynolds, Green Tree cannot meet its burden. Neither Gamble Properties nor Fletcher Reynolds signed the promissory note with Green Tree. The arbitration provision in the note defines the term “parties” to mean the holder of the note and “the undersigned borrower(s), collectively.” Because Brian Reynolds was the sole signatory to the note, Gamble Properties and Fletcher Reynolds are not included in the definition of the parties to whom the arbitration provision applies. There is no contract between Green Tree and Gamble Properties or between Green Tree and Fletcher Reynolds.

Nevertheless, Green Tree argues that Gamble Properties and Fletcher Reynolds should be required to arbitrate their claims against it. Green Tree first argues that it is entitled to compel arbitration of Gamble Properties and Fletcher Reynolds’s claims against it pursuant to the doctrine of equitable estoppel. This Court has held, however, that equitable estoppel is not applicable in a situation where the terms of the arbitration provision specifically limit arbitration to the parties who have executed the agreement, as is the case here. Monsanto Co. v. Benton Farm, 813 So.2d 867 (Ala.2001).

Green Tree next argues that Gamble Properties and Fletcher Reynolds should be compelled to arbitrate their claims against Green Tree because, it says, their claims are intertwined with Brian Reynolds’s claims against Green Tree. This Court discussed the doctrine of intertwining in SouthTrust Bank v. Ford, 835 So.2d 990 (Ala.2002):

“The doctrine of intertwining is applicable where arbitrable and nonarbitrable claims are so closely related that the party to a controversy subject to arbitration is equitably estopped from denying the arbitrability of the related claim. See, e.g., Ex parte Tony’s Towing, Inc., 825 So.2d 96 (Ala.2002); Oakwood Mobile Homes, Inc. v. Godsey, [824 So.2d 713 (Ala.2001) ]; Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524 (Ala.2001).
“... [T]he doctrine of estoppel is applicable only to estop a signatory from avoiding arbitration. See Ex parte Tony’s Towing, Inc., supra (noting that a nonsignatory cannot be estopped from avoiding arbitration and recognizing that the equitable principle of intertwining is applicable only where a signatory to the arbitration agreement seeks to frustrate a nonsignatory from obtaining arbitration). Because arbitration is strictly a matter of contract, this Court has no authority, even under the doctrine of equitable estoppel, to compel parties to arbitrate if they have not agreed to do so.”

835 So.2d at 994-95. Both Gamble Properties and Fletcher Reynolds submitted affidavits in opposition to Green Tree’s motion to compel arbitration. Fletcher Reynolds testified as follows in his affidavit:

“I am not a party nor have I been a party to any note that exist [sic] between Brian Reynolds that was entered or mortgage that was entered between Brian Reynolds and Conseco.... I have never signed an Arbitration Agreement with Conseco or Green Tree or any of their affiliated entities.”

Jim Gamble, the president and managing partner of Gamble Properties, testified as follows in his affidavit:

“I have never been involved in the financing transaction between Brian Reynolds and Conseco Finance Corporation of Alabama nor with any involvement of any contracts between Brian Reynolds and Green Tree-Alabama, L.L.C. In particular, I was not a party to nor was I aware of [sic] until these documents were filed with the Court that certain note dated October 26, 2001.... Nowhere am I a party to that transaction nor does my signature appear thereon.”

Because Gamble Properties and Fletcher Reynolds did not agree to submit their claims against Green Tree to arbitration, the doctrine of intertwining is not applicable to any claims they assert against Green Tree. SouthTrust Bank v. Ford, 835 So.2d at 994-95; Ex parte Tony’s Towing, Inc., 825 So.2d 96, 98-99 (Ala.2002). Gamble Properties and Fletcher Reynolds never contracted with Green Tree to arbitrate anything; therefore, the trial court properly denied Green Tree’s motion to compel arbitration as to them.

Finally, Green Tree argues that Gamble Properties and Fletcher Reynolds should be compelled to arbitrate their claims against Green Tree because, it says, they are third-party beneficiaries to the contract between Green Tree and Brian Reynolds.

“This Court has held that a nonsigna-tory can be bound by an arbitration provision when the nonsignatory is an intended third-party beneficiary of the contract containing the arbitration provision. See Edward D. Jones & Co. v. Ventura, 907 So.2d 1035 (Ala.2005), and Ex parte Dyess, 709 So.2d 447 (Ala.1997). ‘[I]n order for a person to be a third-party beneficiary of a contract, the contracting parties must have intended to bestow benefits on third parties.’ Locke v. Ozark City Bd. of Educ., 910 So.2d 1247, 1251 (Ala.2005) (citing H.R.H. Metals, Inc. v. Miller, 833 So.2d 18, 24 (Ala.2002)); see also Ex parte Stamey, [776 So.2d 85 (Ala.2000) ] (holding that the intent of the parties as expressed in the contract determines whether a nonsignatory is a third-party beneficiary).”

UBS Fin. Servs., Inc. v. Johnson, 943 So.2d 118, 122 (Ala.2006). Nothing before us indicates that Brian Reynolds or Green Tree intended to bestow benefits on Gamble Properties or Fletcher Reynolds as third-party beneficiaries. Absent a showing that Green Tree and Brian Reynolds intended to benefit Gamble Properties or Fletcher Reynolds when Brian Reynolds executed the promissory note to Green Tree in 2001 in connection with his loan, neither Gamble Properties nor Fletcher Reynolds can be considered a third-party beneficiary to the note. Therefore, neither of them is bound by the arbitration provision in the note executed by Brian Reynolds.

IV. Conclusion

We affirm the trial court’s order denying Green Tree’s motion to compel arbitration as to Gamble Properties and Fletcher Reynolds. The trial court, however, erred in denying Green Tree’s motion to compel arbitration as to Brian Reynolds. We therefore reverse that order insofar as it denied the motion to compel arbitration as to Brian Reynolds, and we remand this cause for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

COBB, C.J., and STUART and MURDOCK, JJ., concur.

BOLIN, J., concurs in the result.

      . On February 3, 2003, Conseco Finance Corp.-Alabama filed for bankruptcy protection in Illinois. In connection with that bankruptcy proceeding, Conseco Finance Corp.Alabama continued operations as Green Tree-AL, L.L.C.


source: Caselaw Access Project

author: COBB, Chief Justice.

license: Public Domain

text:
    James H. PARKER v. William Leon WILLIAMS, Jr. William Leon Williams, Jr. v. James H. Parker.
    1050040 and 1050100.
    Supreme Court of Alabama.
    July 20, 2007.

      Richard G. Poff, Jr., Birmingham, for appellant/cross-appellee James H. Parker.
    Clarence Dortch III, Talladega; and W.L. Williams, Jr., Birmingham, for appel-lee/cross-appellant William Leon Williams, Jr.
   COBB, Chief Justice.

James H. Parker, the plaintiff in a breach-of-contract and fraud action in the Jefferson Circuit Court, appeals from a judgment as a matter of law in favor of the defendant, William Leon Williams, Jr. Williams cross-appeals from a judgment as a matter of law entered by the trial court in favor of Parker on Williams’s counterclaim. We affirm.

I. Background

Williams is an attorney who has practiced law in Birmingham for over 40 years. In December 1997, Robert Shelborne approached Williams about representing him in a business transaction in London, England, from which Shelborne believed he would receive $31 million. Williams and Shelborne entered into a written agreement pursuant to which Williams would receive a fee of $1 million for his services, contingent upon Shelborne’s receiving the $31 million. Williams established a “receptacle” account with J.C. Bradford & Company for Shelborne to deposit the $31 million. Williams also provided Shelborne a key to Williams’s office and a pager so the two could remain in contact “in case something broke fast.”

Williams and Shelborne’s contact regarding the London transaction was an individual who identified himself as Robert Tundy and who said that he was with the “Presidency” in London. Tundy informed Williams and Shelborne that Shelborne would have to pay a tax of $200,010 in order to receive the $31 million, which appeared to have originated in Nigeria. Williams and Shelborne attempted to borrow $200,010 from various sources but were unsuccessful. In May 1998, Tundy told Williams and Shelborne that he would raise $100,000 from sources in Nigeria if they would pay the balance on the tax of $100,010.

Shelborne approached Parker about loaning him $50,000 as partial payment of the tax. Shelborne and Parker had been employed by the same insurance agency. Shelborne twice met with Parker to discuss the proposed loan. During the second meeting Shelborne mentioned that Williams was assisting him with the transaction, and Parker asked Shelborne to have Williams meet with him to explain the transaction. Williams met with Parker, and Parker alleges that during this meeting Williams guaranteed the loan. Parker agreed to loan Shelborne the $50,000, and on May 4, 1998, Shelborne executed a promissory note, drafted by Williams, payable to Parker, pursuant to which Shelborne agreed to pay Parker $100,000 within 72 hours of receiving $50,000 from Parker. Although Williams signed the promissory note as a witness, there was no written agreement indicating that Williams would guarantee the loan. After the promissory note was executed, Parker provided Shelborne a cashier’s check in the amount of $50,000. Parker, Williams, and Shelborne went to the bank, where the funds were wired as instructed to an account at Chase Manhattan Bank.

After the $50,000 was transferred on May 4, 1998, neither Shelborne nor Williams heard from Tundy again. Not surprisingly, the $31 million was never transferred into the J.C. Bradford account Williams had established. On June 1, 1998, Shelborne returned the pager and the key to Williams’s office to Williams’s secretary. Williams testified that Shel-borne then “disappeared” and that he had no further contact with him. Subsequently, Williams contacted the United States Embassy in London and learned that a “Presidency” did not exist in London.

Parker contacted Williams numerous times to inquire when he would receive $100,000 under the promissory note. According to Parker, each time he inquired Williams promised that Parker would receive the money soon. Shelborne, however, never honored the terms of the promissory note.

After learning that there was no such entity as a “Presidency” and that he had been defrauded, Williams, on behalf of Parker, sued Shelborne, whom he had represented in the failed transaction, seeking the amount due Parker under the promissory note and damages. Williams also named Shelborne’s mother and grandmother as defendants in the action. Shel-borne did not answer the complaint, and a default judgment was entered against Shelborne for $200,000. Although Williams and Parker attempted to collect the judgment, they discovered that there were no assets to attach, and the record indicates that Williams never recorded the judgment with the probate court.

According to Parker, even after a default judgment had been entered against Shelborne, Williams continued to promise Parker that he would make good on the promissory note. Specifically, Parker testified that Williams promised to pay him once an action settled in which Williams was representing the City of Birmingham against Browning-Ferris Industries, Inc. (“BFI”). After reading in the newspaper that the BFI action had settled and assuming that Williams had received his attorney fee in the BFI litigation, Parker telephoned Williams and inquired as to when he would receive his $100,000. According to Parker, Williams told him that he would not pay him. Frustrated, Parker filed a complaint with the Alabama State Bar against Williams, alleging that he had violated the Alabama Rules of Professional Conduct when he sued Shelborne, whom he had formerly represented in the transaction, on Parker’s behalf. Parker testified that he filed the complaint hoping that the State Bar would be able to force Williams to pay him. As a result of the complaint, Williams was publicly reprimanded by the Alabama State Bar because of the conflict of interest created when he sued his former client based on the transaction in which he had represented the client.

Parker then sued Williams in the Jefferson Circuit Court, alleging breach of contract and fraud. Williams filed a counterclaim against Parker seeking $80,000 in unpaid attorney fees relating to the action Williams filed against Shelborne on Parker’s behalf. A summary judgment was entered in favor of Williams on Parker’s fraud claim, and the remaining claims proceeded to trial. The jury trial began on August 22, 2005. After Parker presented his case-in-chief, Williams moved for a judgment as a matter of law on the breach-of-contract claim; that motion was granted. The jury was then dismissed, and pursuant to the agreement of the parties, Williams’s counterclaim for attorney fees was adjudicated as a bench trial. At the conclusion of the bench trial, the trial court entered a judgment as a matter of law for Parker on the counterclaim. Parker appealed, and Williams cross-appealed.

II. Case No. 10500W — Parker’s Appeal

Parker argues that the trial court erred in granting Williams’s motion for a judgment as a matter of law made after Parker presented his case-in-chief. He further argues that the trial court erred to reversal by excluding at trial a tape recording of a telephone conversation between Parker and Williams, which Parker asserts would have revealed Williams’s agreement to guarantee Shelborne’s loan.

A. Standard of Review

“‘The standard of review applicable to a motion for directed verdict or judgment notwithstanding the verdict [now referred to as a preverdiet and a postverdict motion for a judgment as a matter of law] is identical to the standard used by the trial court in granting or denying the motions initially. Thus, when reviewing the trial court’s ruling on either motion, we determine whether there was sufficient evidence to produce a conflict warranting jury consideration. And, like the trial court, we must view any evidence most favorably to the non-movant.’ ”

Glenlakes Realty Co. v. Norwood, 721 So.2d 174, 177 (Ala.1998) (quoting Bussey v. John Deere Co., 531 So.2d 860, 863 (Ala.1988)).

B. Analysis

During trial and on appeal, Parker concedes that no written contract exists between Williams and him by which Williams agrees to guarantee Parker’s loan to Shelborne. Instead, he argues that there was a valid oral agreement by which Williams agreed to guarantee the loan. We disagree.

Alabama’s Statute of Frauds, § 8-9-2, Ala.Code 1975, states, in pertinent part:

“In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
“3) Every special promise to answer for the debt, default or miscarriage of another.... ”

Parker argues that, as this Court enunciated in Fowler v. Oliver, 540 So.2d 54, 55 (Ala.1989), “[t]he rule in Alabama is that the Statute of Frauds is applicable only to executory contracts, not to executed contracts.” Fowler, however, is distinguishable from this case in that it dealt with an oral contract that exceeded one year. Our review of this Court’s prior decisions does not indicate that the executed-contract exception to the Statute of Frauds has been applied to a guaranty. Given this Court’s holding in Baker v. Hanks, 661 So.2d 1155 (Ala.1995), that a purported oral promise by a third party “to see to it” that a loan was repaid would have to be in writing to be enforceable, we conclude that this Court has not extended the executed-contract exception to the Statute of Frauds to situations involving a guaranty. See also Posten v. Clem, 201 Ala. 529, 78 So. 883 (1918). Extending the executed-contract exception to “promise[s] to answer for the debt, default or miscarriage of another” would essentially negate the Statute of Frauds in that context because practically all disputes regarding a guaranty arise after the debt has been created. Accordingly, we hold that the executed-contract exception has no application here.

Because the alleged oral agreement between Williams and Parker falls within the purview of the Statute of Frauds, we need not consider Parker’s claim regarding the trial court’s refusal to allow the audiotape of the telephone conversation between him and Williams into evidence. Indeed, no matter how compelling Williams’s purported promise may have been on the audiotape, the oral promise would be irrelevant because § 8 — 9—2(3), Ala.Code 1975, requires such a guaranty to be in writing.

III. Case No. 1050100 — Williams’s Cross-Appeal

Williams argues that the trial court erred in determining that he was not entitled to attorney fees under the theory of quantum meruit or quasi-contract relating to the action he filed on Parker’s behalf against Shelborne. We disagree.

A. Standard of Review

As stated previously, the trial court considered Williams’s counterclaim during a bench trial conducted after the jury had been dismissed following the entry of a judgment as a matter of law on Parker’s breach-of-contract claim against Williams. Our ore tenus standard of review is well settled. “ ‘When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.’ ” Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)); see also First Nat’l Bank of Mobile v. Duckworth, 502 So.2d 709 (Ala.1987). As this Court has stated:

“ ‘The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.’ Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). The rule applies to ‘disputed issues of fact,’ whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala.1995). The ore tenus standard of review, succinctly stated, is as follows:
“ ‘[Wjhere the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.’ ”

Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)). However, “that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.” Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 417 (Ala.1994).

B. Analysis

Initially we note that the record contains only the court reporter’s transcript of the trial through the entry of the judgment as a matter of law on Parker’s breach-of-contract claim; it does not contain the transcript of the portion of the bench trial regarding Williams’s counterclaim. A transcript of that portion of the trial apparently exists because Williams quotes liberally from it in his brief.

“The law is settled that it is the appellant’s duty to ensure that the appellate court has a record from which it can conduct a review. Cooper & Co. [v. Lester, 832 So.2d 628 (Ala.2000) ]; [Alfa Mut. Gen. Ins. Co. v.] Oglesby, [711 So.2d 938 (Ala.1997) ]; and Gotlieb v. Collat, 567 So.2d 1302 (Ala.1990). Further, in the absence of evidence in the record, this Court will not assume error on the part of the trial court. Browning v. Carpenter, 596 So.2d 906 (Ala.1992); Smith v. Smith 596 So.2d 1 (Ala.1992); Totten v. Lighting & Supply, Inc., 507 So.2d 502 (Ala.1987).”

Zaden v. Elkus, 881 So.2d 993, 1009 (Ala.2003). Williams (the appellant in this cross-appeal) had the burden of ensuring that the record on appeal contains sufficient evidence to warrant a reversal of the judgment he challenges. Gotlieb v. Collat, 567 So.2d 1302 (Ala.1990). The law in Alabama is settled that when the record is silent as to evidence considered by the trial court, we must presume that the evidence considered was sufficient to support the trial court’s judgment. Browning v. Carpenter, 596 So.2d 906 (Ala.1992); Smith v. Smith 596 So.2d 1 (Ala.1992); and Totten v. Lighting & Supply, Inc., 507 So.2d 502 (Ala.1987). Because we do not have a complete record to consider, we cannot assume error on the part of the trial court; thus we must affirm its judgment for Parker on Williams’s counterclaim.

IV. Conclusion

Because the trial court correctly determined that the Statute of Frauds was applicable to the purported oral agreement between Williams and Parker, we affirm the trial court’s judgment for Williams on Parker’s breach-of-contract claim (case no. 1050040). Because we do not have a complete record to review Williams’s cross-appeal, we affirm its judgment for Parker on Williams’s counterclaim (case no. 1050100).

1050040 — AFFIRMED.

1050100 — AFFIRMED.

SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ„ concur.

MURDOCK, J., concurs in the result.

      . This case was originally assigned to another Justice on this Court; it was reassigned to Chief Justice Cobb on January 18, 2007.

      . It appears that this was actually a Nigerian advance fee fraud ("AFF”), commonly referred to as a "419 Scam." These AFFs include the transfer of funds from over-invoiced contracts, contract fraud, conversion of hard currency, sale of crude oil below market prices, purchase of real estate, and disbursement of money from wills. Typically, the victims either are asked to allow substantial funds to be deposited into their bank account, for which they will receive a percentage of the funds, or are told that they are to inherit a substantial sum. The victims are informed that they must pay a tax or transaction fee before the funds are deposited to their accounts; the funds, of course, are never deposited. United States Department of State Bureau of International Narcotics and Law Enforcement Affairs, Nigerian Advance Fee Fraud (April 1997).

      . Shelborne had previously borrowed $50,000 from another individual and in March or April 1998 had wired those funds to the "Presidency” in London, albeit to a different account.

      . Williams named Shelborne’s mother as a defendant because she had given Williams messages she had received from the "Presidency” and because she had tried to secure from her credit union the money that was to be sent to the "Presidency” as payment of the tax. Williams named Shelborne’s grandmother as a defendant because she owned the house in which Shelborne and his mother resided.

      . Although during trial the parties refer to recording the judgment with the circuit court, it is apparent to this Court that they were referring to the process of recording a judgment with the probate court to secure a lien.


author: THOMPSON, Presiding Judge. BRYAN, Judge,

text:
    T.L.H. v. R.A.R.
    2050796.
    Court of Civil Appeals of Alabama.
    May 11, 2007.
    Certiorari Denied July 13, 2007 Alabama Supreme Court 1061217.

      Frederick A. Erben of Beddow, Erben & Bowen, P.A., Birmingham; and Clarence L. McD orman, Birmingham, for appellant.

      John D. McCord of McCord & Martin, Gadsden, for appellee.
   On Applications for Rehearing

THOMPSON, Presiding Judge.

The opinion of March 2, 2007, is withdrawn, and the following is substituted therefor.

On July 25, 2005, R.A.R. filed a petition in the Etowah Juvenile Court (hereinafter “the trial court”) alleging that he was the biological father of G.K.L. (“the child”), requesting that the trial court enter an order establishing his paternity of the child, and seeking a determination of his custodial rights to the child. In his petition, R.A.R. alleged that a paternity test had already been completed and that the results of that test indicated that he was the biological father of the child. R.A.R. later amended his petition to request that the trial court enter an order changing the child’s last name to his name.

On October 6, 2005, T.L.H., the child’s mother, answered and counterclaimed, alleging that R.A.R. was the biological father of the child but that she had been married to J.A.H. at the time of conception. T.L.H. (hereinafter referred to as “the mother”) requested, among other things, that the trial court make J.A.H. a party to the litigation, grant her full custody of the child, and award her child support from R.A.R. The mother later amended her counterclaim to request an award of retroactive child support to the date of the child’s birth on March 18, 2004. On November 10, 2005, the trial court ordered that J.A.H. be made a party to the case; J.A.H. answered and waived any claim he had as the legal father of the child.

On November 17, 2005, the trial court entered an order finding R.A.R. to be the biological father of the child. The trial court entered a pendente lite order requiring R.A.R. (hereinafter referred to as “the father”) to pay child support in the amount of $1,250 per month and awarding the father supervised visitation with the child. Following a two-day ore tenus hearing, the trial court entered a judgment on April 27, 2006, in which it awarded primary physical custody of the child to the mother and awarded the father unsupervised visitation with the child. The trial court ordered the father to pay the mother $1,500 per month in child support, to pay the outstanding medical bills associated with the birth of the child, and to pay $8,925 of the mother’s attorney’s fees. The trial court further ordered that the child’s last name be changed to that of the father.

On May 9, 2006, the mother filed a motion to alter, amend, or vacate the judgment, requesting, among other things, that the trial court reconsider provisions of its visitation award and its child-support award. Because the father’s liability for the outstanding medical bills associated with the birth of the child was the subject of a separate action filed by the mother, the mother also challenged that part of the trial court’s April 27, 2006, judgment ordering the father to pay the outstanding medical bills associated with the birth of the child. On May 22, 2006, the parties filed, pursuant to Rule 59.1, Ala. R. Civ. P., a joint agreement for an extension of time to give the trial court an additional 14 days to consider the mother’s postjudgment motion. On June 5, 2006, the trial court entered an order amending its April 27, 2006, judgment, in pertinent part, to provide for the reimbursement of the mother’s health-care expenses related to the birth of the child in addition to the payment of any outstanding medical expenses associated with the birth of the child. On June 19, 2006, the mother timely appealed.

At the outset, we note that when a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court abused its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). This “presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demean- or.” Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999). This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141 (Ala.Civ.App.2000).

The mother raises six issues on appeal: (1) whether the trial court acted outside its jurisdiction by granting the father’s request to change the child’s last name; (2) whether the trial court erred in failing to order the father to pay child support retroactive to the date of the child’s birth; (3) whether the trial court’s award of child support was sufficient; (4) whether the trial court erred in ordering the father to reimburse the mother for medical expenses related to the birth of the child when it was not requested to do so; (5) whether the trial court erred by ordering the father to pay only a portion of the mother’s attorney’s fees; (6) whether the trial court abused its discretion by granting the father overnight visitation with the child and allowing the father to pick up the child for visitation and to return the child from visitation at the mother’s home. We address each of the issues raised by the mother in turn.

The mother first contends that the trial court did not have subject-matter jurisdiction to order the change of the child’s last name. Section 26-ll-3(a), Ala.Code 1975, sets forth the procedure by which a father may petition to change the name of a child. That section provides:

“The father may petition at the time of filing the declaration of legitimation or at any time subsequent to the determination of legitimation to change the name of such child, stating in his declaration the name it is then known by and the name he wishes it afterwards to have. Such petition shall be filed in the office of the judge of probate of the father’s residence or the child’s residence.”

The mother relies on this court’s decision in Clark v. Clark, 682 So.2d 1051 (Ala.Civ.App.1996), in support of her position on appeal. In Clark, the mother petitioned the juvenile court to have her daughter’s surname changed to the mother’s maiden name; the juvenile court entered an order purporting to change the child’s surname. Five years later, the father petitioned the circuit court to change his daughter’s surname back to his own. The circuit court purported to grant the father’s petition, and the mother appealed.

On appeal, the mother in Clark, relying on § 26-11-3, .Ala.Code 1975, argued that the circuit court was without jurisdiction to grant the father’s petition to change the daughter’s surname. This court held that both the juvenile court and the circuit court had lacked subject-matter jurisdiction to enter a judgment changing a child’s surname. In so holding, we determined that § 26-11-3 did not apply because that statute dealt only with the father’s right to petition the probate court for a name change after there had been a declaration of legitimation. 682 So.2d at 1051. Further, this court recognized that no Alabama statute or caselaw existed that gave either the juvenile court or the circuit court the authority to change the child’s name under the particular facts presented in Clark. 682 So.2d at 1051.

Our review of Alabama law since this court issued its decision in Clark reveals no new statute or caselaw giving the trial court in this case jurisdiction to change the child’s surname. Section 26-11-3 provides a method by which the father can petition the probate court to change the child’s name. A probate court has original and general jurisdiction over the “change of the name of any person residing in their county.” § 12 — 13—l(b)(10), Ala.Code 1975. The juvenile court is without authority to change a child’s name. See § 12-15-30 et seq., Ala.Code 1975 (listing proceedings over which the juvenile court has exclusive original jurisdiction).

“ ‘A judgment is void if the court that rendered it lacked jurisdiction over the subject matter or over the parties.’ ” Clark, 682 So.2d at 1052 (quoting Bieber v. Bieber, 623 So.2d 1163, 1165 (Ala.Civ.App.1992)). Because the trial court was without jurisdiction to change the child’s surname, that portion of the trial court’s judgment is void. Therefore, we dismiss the appeal as to this issue. See Jenkins v. Covington, 939 So.2d 31 (Ala.Civ.App.2006)(a void judgment will not support an appeal).

The mother also contends that the trial court erred by failing to order the father to pay child support retroactive to the date of the child’s birth. The record reveals that the child was born on March 18, 2004. The father testified that he began sending the mother cash for child support in May 2004. The father testified that he had mailed the mother a total of $1,500 in cash for child support; the mother testified that the father had given her $2,300 in cash for child support. At some point, the father, through his attorney at the time, mailed the mother a check for $3,000 for child support. However, counsel for the mother returned the check to the father out of an apparent concern that the acceptance of the $3,000 in child support would compromise the mother’s position in a civil action brought by her against the father in March 2005. We explain the nature of that separate action later in this opinion. The record does not contain a copy of the check or of any correspondence relating to that check. In July 2005, the father, who was then represented by new counsel, mailed the mother a second check for child support in the amount of $5,500. In a letter mailed with the check and submitted into evidence at trial, counsel for the father noted that the father requested the delivery of the funds as payment for child support, “which may have accrued in the past or may accrue in the future.” The mother returned the check and by a letter dated August 9, 2005, stated that the check was “not acceptable” and explained the return of the check as a “precautionary measure ... in the event that [the father] attempts] to raise some accord and satisfaction defense” in the separate civil action brought by the mother. The father testified that he consistently paid monthly child support after being ordered to do so by the trial court in a November 17, 2005, pendente lite order requiring the father to pay $1,250 in monthly child support.

In Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998), citing the state’s general law and policy requiring a parent to support a minor child, this court held

“that a trial court may, in its discretion, award child support retroactive to the filing of a complaint for divorce where the trial court has failed to enter a pen-dente lite child support order for the period in which the parent had a duty to support the child but failed to provide that support.”

719 So.2d at 232. The Alabama legislature recognized a parent’s duty to support a child by creating a cause of action for retroactive support. See § 30-3-110 et seq., Ala.Code 1975.

In K.H.L. v. K.G.M., 782 So.2d 804 (Ala.Civ.App.2000), K.H.L., on behalf of her minor child, filed a complaint against K.G.M., seeking, among other things, an adjudication of paternity and an award of child support. The results of a paternity test ordered by the trial court revealed that K.G.M. was the child’s father. The mother amended her complaint to seek retroactive child support. Evidence presented at an ore tenus hearing before the trial court revealed that the father had voluntarily paid the mother $500 in child support since the child’s birth and that the father had begun paying $900 per month in child support in January 1999. The trial court did not award retroactive child support and the mother appealed. On appeal, the mother challenged the trial court’s failure to award retroactive child support. Based on the discretion afforded a trial court to award retroactive child support and the evidence indicating that the father had voluntarily paid some child support, this court held that the trial court did not err in failing to award retroactive support. K.H.L. v. K.G.M., 782 So.2d at 807-08.

In this case, the father began sending the mother child support in May 2004, shortly after the child was born but before the child’s paternity had been established. At some point, presumably after the mother had filed a separate civil action against the father in March 2005, the father mailed the mother a check for $3,000 for child support; the mother returned that check. The father made a second attempt to send the mother child support in July 2005, but that check was also returned to him. The father consistently paid child support following the trial court’s November 2005 pendente lite order in which the trial court found him to be the father of the child and ordered him to pay child support. Given the evidence presented to the trial court and the discretion afforded the trial court, we cannot say that the trial court erred in failing to award retroactive child support.

The mother further contends that the trial court erred by only awarding her $1,500 per month in child support. Specifically, the mother argues that the trial court’s award was insufficient given her ability to earn, the father’s ability to earn, and the needs of the child. The evidence presented at trial revealed that the mother suffers from interstitial cystitis, fibromyal-gia, chronic fatigue syndrome, and depression. The mother has not been employed since 1996. The record indicates that, when she was employed, the mother worked as a hairstylist. The mother testified that she could no longer work because she could not perform any kind of “repetitive work.” The mother receives Social Security disability benefits in the amount of $703 per month; that amount includes $108 in benefits for the child. In addition to her disability income, the mother also receives monetary support from her father. The mother testified that her father had provided her with financial support for two years and seven months. The mother testified that she received monthly support from her father in the amount of $2,500 before the trial court ordered the father to pay pendente lite child support. The mother testified that she now receives only $1,250 a month from her father. The mother estimated that she owed her father $50,000 at the time of the final hearing in this matter. According to the mother, she would not be able to pay her monthly expenses without her father’s help.

The mother estimated her monthly expenses to be $3,983.25. The mother submitted a detailed list of her monthly expenses as an exhibit at trial. Among the mother’s listed monthly expenses were a $1,361.44 mortgage payment, $360.50 for utilities, $145.52 for telephone service, $129.98 for cable service, $100 for yard care, and $217 for “household help.” The mother also listed monthly expenses for her automobile, including $152.90 for insurance, $290 for “gas and oil,” and $149.50 representing costs associated with repair and maintenance as well as parking. The mother estimated her monthly food expenses to be $620. The mother also listed monthly credit-card payments in the amount of $598. The mother explained at the final hearing that she had divided the amounts listed above by two when determining her monthly expenses for the child.

In addition to those expenses she divided equally, the mother included in her list $433 in expenses for the child that included the cost of clothes, diapers, and preschool for the child. The mother also listed a payment of $299 a month on $12,000 in general debt.

The father is employed as an attorney. The father testified that his yearly compensation fluctuates. Income-tax returns admitted into evidence for the years 2003, 2004, and 2005 revealed that the father had reported an adjusted gross income of $232,671, $138,909, and $213,840, respectively, for those years. The father testified that, at the time of the final hearing in April 2006, he had earned $27,280 between January 2006 and April 2006.

Before the final hearing, the father and the mother filed CS-41 child-support income affidavits. In his CS-41 affidavit, the father listed his gross monthly income as $12,583 and noted that he paid $481 a month for health-insurance coverage for the benefit of the child. The mother listed her gross monthly income as $709 in her CS-41 affidavit and noted that the child was covered by Medicaid.

The father’s gross monthly income of $12,583 exceeds the uppermost level of the child-support tables found in Rule 32, Ala. R. Jud. Admin. When the parties’ combined income exceeds the maximum set forth in those child-support tables, the establishment of a parent’s child-support obligation is within the trial court’s sound discretion. Rule 32(c)(1), Ala. R. Jud. Admin.; Dyas v. Dyas, 683 So.2d 971 (Ala.Civ.App.1995), aff'd and remanded, 683 So.2d 974 (Ala.1996); and Garrett v. Garrett, 637 So.2d 1376 (Ala.Civ.App.1994). However, “a trial court’s discretion is not unbridled and ... the amount of child support awarded must relate to the reasonable and necessary needs of the children as well as to the ability of the obligor to pay for those needs.” Dyas v. Dyas, 683 So.2d at 973.

In this case, the father’s ability to pay is not at issue; instead, the issue is whether the amount awarded by the trial court related to the reasonable and necessary needs of the child. “[CJhild support is for the benefit of the [child] and not for the benefit of the custodial parent.” Burkett v. Gresham, 888 So.2d 505, 509 (Ala.Civ.App.2004). Although the father’s child-support obligation is less than half the total of the monthly expenses the mother listed at trial, upon closer review of the monthly expenses listed by the mother at trial, we cannot say that the trial court erred in its award of $1,500 a month for child support.

The trial court was presented with evidence from which it could have determined that the mother’s medical condition did not render her a complete invalid. The evidence presented at the final hearing revealed that the mother had sought Social Security disability benefits before she had the child. The mother testified at length regarding her position as the child’s primary caregiver and her ability to take care of her two-year-old child. The mother explained her daily routine caring for the child, which included activities requiring the mother to physically exert herself.

Our review of the monthly expenses listed by the mother reveals that the mother attributed half the costs associated with yard maintenance, the maintenance of her vehicle, including costs associated with parking and the tag for the vehicle, and “household help” to the child. The trial court could have determined that those expenses were inappropriately attributed to the child or that those expenses were neither reasonable nor necessary. It is within the trial court’s discretion to make such a determination. See Dyas v. Dyas, supra. That discretion is based, in part, on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. See Little-ton v. Littleton, supra. We cannot say that the trial court abused its discretion, and, therefore, we affirm as to this issue.

The mother also argues that the trial court erred by ordering the father to reimburse her for medical expenses related to the birth of the child and to pay all outstanding medical expenses related to the birth of the child when she did not seek such relief at trial but, instead, specifically requested that relief in a separate civil action pending before the trial court.

Rule 15(b), Ala. R. Civ. P., states, in pertinent part:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence .... The Court is to be liberal in granting permission to amend when justice so requires.”

“The determination of whether an issue has been tried by the express or implied consent of the parties within the meaning of Rule 15(b), Ala. R. Civ. P., is a matter that lies within the discretion of the trial court.” Hathcock v. Hathcock, 685 So.2d 736, 738 (Ala.Civ.App.1996) (citing McCollum v. Reeves, 521 So.2d 13 (Ala.1987)). The trial court’s determination will not be reversed on appeal absent an abuse of that discretion. Id.

“ ‘ “[I]f Rule 15 is to be of any benefit to the bench, bar, and the public, the trial judges must be given discretion to allow or refuse amendments.... We state also that Rule 15 must be liberally construed by the trial judges. But, that liberality does not include a situation where the trial on the issues will be unduly delayed or the opposing party unduly prejudiced.” ’ ”

Tounzen v. Southern United Fire Ins. Co., 701 So.2d 1148, 1150 (Ala.Civ.App.1997), quoting Hayes v. Payne, 523 So.2d 333, 334 (Ala.1987), quoting in turn Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So.2d 469, 471 (1975).

The record reveals that the mother filed a complaint against the father, among others, on March 3, 2005, seeking relief under the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala.Code 1975, based on claims of, among other things, negligence, wrongful pregnancy, breach of a fiduciary duty, battery, and false imprisonment. In her March 3, 2005, complaint in the separate action, the mother sought, among other things, compensatory damages for medical expenses related to her pregnancy and punitive damages. After the father filed his petition to establish paternity and for custody of the child in the instant case, the mother counterclaimed, but she did not seek compensation for medical expenses incurred as a result of the pregnancy or for outstanding medical expenses associated with the birth of the child. The mother’s separate action against the father was still pending at the time of the final hearing in this matter.

Our review of the record reveals that the issue of payment of the medical expenses associated with the child’s birth was not tried by the express or implied consent of the parties.

The mother objected when counsel for the father first raised the issue of money owed as a result of the child’s birth. Further, as the mother asserted in her post-judgment motion, no evidence was presented at trial regarding the amount of money the mother paid for expenses associated with the birth of the child or the amount of money the mother owed following the birth of the child.

According to Rule 15, it is incumbent on the objecting party to show that the evidence would in some way prejudice the party. The mother has demonstrated that she was prejudiced when the trial court amended the pleadings to include a claim for previously incurred and outstanding medical expenses associated with the birth of the child when no evidence was presented at trial relating to those expenses. We conclude that the mother was unduly prejudiced by the trial court’s decision to amend the pleadings and that the trial court abused its discretion in doing so. Therefore, that portion of the trial court’s judgment pertaining to the reimbursement of expenses associated with the birth of the child and the mother’s medical care during her pregnancy is due to be reversed.

The mother also challenges the adequacy of the trial court’s award of $8,925 in attorney’s fees in her favor. An “award of an attorney fee is within the sound discretion of the trial court and will not be reversed except for an abuse of discretion.” G.K.M. v. E.B.M., 728 So.2d 1102, 1104 (Ala.Civ.App.1998). “The trial court is given much discretion in determining an appropriate award of attorney fees because of its ‘own knowledge and experience as to the value of the legal services performed.’ ” Creel v. Creel, 871 So.2d 827, 830 (Ala.Civ.App.2002)(quoting Hammond v. Hammond, 500 So.2d 27, 29 (Ala.Civ.App.1986)).

The attorney for the mother represents on appeal that he devoted 103 hours of time to this case. However, the attorney testified during cross-examination at the final hearing that he believed that he had spent only approximately 80 to 82 of the 103 hours on the paternity action after the father had filed his petition to establish paternity in July 2005. The attorney did not present any evidence regarding the amount he charged the mother hourly for his representation. The attorney estimated his expenses on the case to be in the amount of $1,425. Given the deference afforded to a trial court’s judgment awarding attorney’s feés, we cannot say that the trial court abused its discretion in its award of $8,925 in attorney’s fees to the mother,

The mother further challenges that trial court’s visitation award. Specifically, the mother contends that the trial court abused its discretion by granting the father overnight visitation with the child.

“The issue of child visitation is within the sound discretion of the trial court. Wyatt v. Wyatt, 549 So.2d 1351 (Ala.Civ.App.1989). When the issue of visitation is determined after oral proceedings, the trial court’s determination of the issue will not be disturbed absent an abuse of discretion or a showing that it is plainly in error. Andrews v. Andrews, 520 So.2d 512 (Ala.Civ.App.1987). The trial court’s primary consideration in establishing visitation rights for the noncustodial parent must be the best interests and welfare of the child. Jackson v. Jackson, 520 So.2d 530 (Ala.Civ.App.1988).”

Dominick v. Dominick, 622 So.2d 402, 403 (Ala.Civ.App.1993).

The evidence presented at trial revealed that the father had been married to his wife for almost 12 years at the time of the final hearing in this matter. The father and his wife have two children, ages 11 and 7. The father also has two children from a previous marriage, ages 22 and 19, both of whom live in the father’s home. The father’s wife is supportive of the father’s relationship with the child. She testified that the father’s other children look forward to visiting with the child.

After the trial court awarded the father supervised visitation with the child in November 2005, the father consistently exercised visitation with the child. Sharon Cash, an employee of the Etowah County Department of Human Resources who was appointed by the trial court to supervise the father’s visitation with the child, testified that she observed visitation between the father and the child alone and visitation between the father, the father’s family, and the child. According to Cash, the father visited alone with the child during the first three visitations and later visitations occurred at the father’s home. Cash testified that she had visited the father’s home and found it to be appropriate for the child. Cash explained that the father was attentive to the child and the child’s needs during visitations. Cash testified that she had no concerns about the child’s safety while in the father’s custody.

On cross-examination, Cash expressed concern regarding allowing the child to visit the father overnight. Cash testified that because the child was two years old at the time of the hearing, the child should spend the night with her primary caregiver, i.e., the mother. Cash testified that the child was too young to be away from her mother overnight and suggested that overnight visitation would be acceptable when the child reached the age of three or four.

The mother alleges, as her sole basis for error regarding the trial court’s award of visitation, that the trial court abused its discretion by overlooking Cash’s recommendation that there should be no overnight visitation until the child reached the age of three or four. However, the trial court was not limited to Cash’s recommendation on cross-examination but was free to consider Cash’s earlier testimony regarding the father’s visitation with the child and the adequacy of the father’s home. Although Cash did discourage overnight visitation for the child at two years of age, her testimony also revealed that the father had an improved relationship with the child and that the father’s home was appropriate for the child.

The trial court also heard testimony from the father and his wife regarding their home life and their ability to care for the child should the child be permitted to visit overnight. The trial court acted within it discretion when it awarded the father overnight visitation with the child. See Dominick, supra. Therefore, we affirm as to this issue.

The mother also challenges that portion of the trial court’s judgment ordering the father to pick up the child from, and to return the child to, the mother’s home when exercising visitation with the child. However, the mother admits on appeal that this issue alone does not warrant reversal. Furthermore, the mother cites no caselaw in support of this argument on appeal. See McLemore v. Fleming, 604 So.2d 353 (Ala.1992)(recognizing that it is not the function of an appellate court to conduct an appellant’s legal research). Therefore, we affirm as to this issue.

APPLICATIONS OVERRULED; OPINION OF MARCH 2, 2007, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED IN PART; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN and THOMAS, JJ., concur.

BRYAN, J., concurs in part and dissents in part, with writing, which MOORE, J., joins.

BRYAN, Judge,

concurring in part, and dissenting in part.

I concur in overruling the mother’s application for rehearing; however, because I would grant the father’s application for rehearing, I dissent from overruling his application. I respectfully dissent insofar as the majority reverses the portion of the trial court’s judgment ordering the father to reimburse the mother for medical expenses related to the birth of the child and to pay all outstanding medical expenses related to the birth of the child.

I cannot concur with the majority’s conclusion that the mother demonstrated prejudice, based on a lack of evidence as to this issue, when the trial court ordered the father to reimburse or pay all of the aforementioned medical expenses. Furthermore, the mother failed to move the trial court for a continuance to enable her to produce evidence on this issue, as provided by Rule 15(b), Ala. R. Civ. P., despite the mother’s testimony that she had given medical bills relating to the child’s birth to her attorney.

In all other respects, I concur with the main opinion.

MOORE, J., concurs.


author: THOMAS, Judge.

text:
    Arthur Earl THOMPSON, Jr. v. Deputy Warden Rodney HUNTLEY et al.
    2060125.
    Court of Civil Appeals of Alabama.
    May 18, 2007.
    Certiorari Denied July 13, 2007 Alabama Supreme Court 1061271.

      Arthur Earl Thompson, Jr., pro se.
    Submitted on appellant’s brief only.
   THOMAS, Judge.

Arthur Earl Thompson, Jr., an inmate incarcerated in the Alabama correctional system, sued Deputy Warden Rodney Huntley, Correctional Officer I Jacqueline Morris, and Hearing Officer Timothy Pope (hereinafter referred to collectively as the “corrections defendants”), alleging that they had violated his constitutional rights in a prison disciplinary proceeding. Officer Morris had instituted a prison disciplinary proceeding against Thompson when she observed him indecently exposing himself in his segregation cell. After a hearing, Pope found Thompson guilty and sentenced him to 45 days of disciplinary segregation and 90 days of loss of store, phone, and visitation privileges. Upon a review of the disciplinary proceeding at Thompson’s request, Deputy Warden Huntley determined that the hearing was not held within the prescribed 10-day period; thus, Deputy Warden Huntley proceeded to expunge the disciplinary action from Thompson’s files. Because Thompson was already housed in the segregation unit when he was charged with the disciplinary infraction, he remained there even after the disciplinary action was expunged.

The correctional defendants moved for a summary judgment, arguing that they were protected by both immunity under § 14, Ala. Const.1901, and State-agent immunity. In addition, the correctional defendants argued that Thompson could not establish a claim under 42 U.S.C. § 1983 because Thompson had not suffered the loss of a liberty interest. See Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (holding that an inmate has no liberty interest in being free of segregation). Before the September 28, 2006, hearing on the summary-judgment motion, Thompson requested that he be transported to the hearing or, in the alternative, that he be allowed to give an oral deposition on an earlier date. The trial court denied his motion. After the summary-judgment hearing, at which Thompson was not present, the trial court entered a summary judgment in favor of the correctional defendants. Although the trial court entered the judgment before receiving Thompson’s response to the correctional defendants’ motion, the trial court noted on the case action summary sheet that it had considered Thompson’s response once it was received and that the response did not change the trial court’s opinion that a summary judgment was appropriate.

On appeal, Thompson raises two issues. He first argues that the trial court erred by failing to allow him to take his own oral deposition before the trial court entered a summary judgment against him. Secondly, Thompson argues that the trial court should not have entered the summary judgment because Thompson had not yet received necessary discovery. We do not find either argument persuasive.

First, although Thompson is correct that a trial court cannot dismiss an inmate’s case for lack of prosecution without giving the inmate the opportunity to prosecute the action either in person or by oral deposition, see Clements v. Moncrief, 549 So.2d 479, 481 (Ala.1989); Feagin v. Stokes, 837 So.2d 857 (Ala.Civ.App.2002); and McConico v. Culliver, 872 So.2d 872 (Ala.Civ.App.2003), the trial court did not dismiss Thompson’s case on the basis of a failure to prosecute. Instead, the trial court entered a summary judgment on the correctional defendants’ motion. The failure of the trial court to allow Thompson to take his own deposition in this instance had no effect on the disposition of the case, and, if it was error at all, it was merely harmless error in this context. Rule 45, Ala. R.App. P.

Thompson’s second argument on appeal is similarly unavailing. Thompson complains that the trial court should not have entered a summary judgment when the correctional defendants had not yet responded to his discovery requests.

“Although the pendency of discovery does not alone bar a summary judgment, see Reeves v. Porter, 521 So.2d 963, 965 (Ala.1988), and Hope v. Brannan, 557 So.2d 1208, 1212 (Ala.1989), if the non-moving party can demonstrate that the outstanding discovery is crucial to his case, then it is error for the trial court to enter a summary judgment before the discovery has been completed. Reeves, 521 So.2d at 965; Hope, 557 So.2d at 1212. To show that the discovery sought is crucial to his case, the nonmov-ing party should comply with Rule 56(f), which provides:
“ ‘Should it appear from the affidavits of a party opposing the motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party’s opposition, the court may deny the motion for summary judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.’ ”

Wright v. State, 757 So.2d 457, 459 (Ala.Civ.App.2000).

Although he did mention in his response to the summary-judgment motion that he had not received “some very important document[s],” Thompson did not file an affidavit, pursuant to Rule 56(f), Ala. R. Civ. P., setting out the discovery that was outstanding and explaining why it was crucial to his response to the summary-judgment motion. We cannot hold the trial court in error for failing to grant a continuance under Rule 56(f) when none was requested, and we cannot reverse the judgment simply because discovery was pending. Reeves v. Porter, 521 So.2d 963, 965 (Ala.1988).

Thus, we have concluded that the procedural errors of which Thompson complains are not sufficient grounds for reversal of the judgment in favor of the correctional defendants. Because Thompson makes no argument concerning the merits of the judgment, we affirm that judgment without further discussion.

AFFIRMED.

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

      . Thompson was housed in the segregation unit because he could not be housed in the general population.


author: BRYAN, Judge. THOMAS, Judge,

text:
    Ramon NAMPHY v. Mike SHEFFIELD.
    2060023.
    Court of Civil Appeals of Alabama.
    May 18, 2007.
    Certiorari Denied July 13, 2007 Alabama Supreme Court 1061273.
    Kent D. McPhail of Dumas & McPhail, LLC, Mobile, for appellant.
    Robert Mudd, Jr., Mobile, for appellee.
   BRYAN, Judge.

The defendant Ramon Namphy appeals a judgment insofar as it found him in contempt for failing to pay the plaintiff Mike Sheffield $17,900 by August 7, 2006. We reverse and remand.

On April 26, 2004, Sheffield leased a commercial building to Namphy, and Nam-phy agreed to pay Sheffield, among other things, rent and the cost of insurance. On March 27, 2006, Sheffield sued Namphy, seeking damages for Namphy’s alleged breach of the lease. Sheffield alleged that Namphy had failed to timely pay rent and the cost of insurance he owed Sheffield under the lease. Sheffield later added claims of unlawful detainer and ejectment, seeking to recover possession of the building.

Namphy and Sheffield entered into a settlement agreement (“the first agreement”). In the first agreement, Sheffield promised to “release” his claims against Namphy if Namphy would purchase the building from Sheffield for a total purchase price of $640,000 and, in addition, pay Sheffield a nonrefundable attorney’s fee in the amount of $5,000. Namphy, in turn, agreed to purchase the building from Sheffield in accordance with the terms of the first agreement if Sheffield would “release” his claims against Namphy. The first agreement provided that $20,000 of the $640,000 purchase price would be nonrefundable earnest money and that that $20,000 and the $5,000 nonrefundable attorney’s fee would be paid as follows: $5,000 on April 28, 2006; $5,000 on May 5, 2006; and $15,000 on May 12, 2006. The first agreement also provided that the $620,000 balance of the purchase price would be paid at closing; that the deadline for closing was July 12, 2006; and that, during the period from May until the date of the closing, Namphy would pay Sheffield rent in the amount of $5,500 per month. Finally, the first agreement provided that, if Namphy violated any of the terms of the first agreement, Namphy would immediately vacate the building and Sheffield would be entitled to pursue both his claim for damages for breach of the lease and a claim for damages for breach of the first agreement.

Namphy apparently made some of the payments due before closing under the first agreement; however, he was unable to close by July 12, 2006. As a result, the parties entered into a second settlement agreement (“the second agreement”) on July 27, 2006. The second agreement contained a provision in which Sheffield agreed to extend the deadline for closing to August 12, 2006, if Namphy, on July 27, 2006, paid Sheffield (1) a fee of $9,000 and (2) $928.75 for insurance; otherwise, the terms of the second agreement were essentially the same as the terms of the first agreement.

However, Namphy failed to pay the $9,928.75 on July 27. As a result, the parties entered into a third settlement agreement (“the third agreement”) on July 28, 2007. The third agreement increased the purchase price for the building from $640,000 to $645,000 and extended to July 81, 2006, the deadline for Namphy to pay the $9,928.75; otherwise, the terms of the third agreement were essentially the same as the terms of the second agreement.

Namphy failed to pay the $9,928.75 by July 31. Accordingly, on August 4, 2006, Sheffield moved the trial court to order Namphy to vacate the building and to remove all tires and debris from the building immediately. That same day, the parties reached another agreement that was incorporated into an agreed order (“the agreed order”) entered by the trial court. In pertinent part, the agreed order stated:

“1. [Namphy] shall pay with certified funds $17,900.00 to [Sheffield’s attorney] by ... August 7, 2006. Provided [Nam-phy] does so, the option to purchase the building, which is the underlying basis of [Sheffield’s] complaint, shall be extended to 8/20/2006....
“2. If [Namphy] fails to pay the funds as set forth above in paragraph (1) of this order, on 8/8/2006 an order of eviction shall issue against [Namphy,] giving him (14) days to vacate the premises. Moreover, [Namphy’s] option to purchase the property will immediately terminate and- [Sheffield] may list the property for sale.
“3. -If [Namphy] pays the funds set out above in paragraph (1), he shall have until ... August 20, 2006[,] to close on the purchase of the building in question at the previously agreed upon price of $625,000.00.[]
“4. If [Namphy] fails to close by 8/20/2006, on 8/21/2006 an order for eviction will issue giving [Namphy] 14 days to vacate and the option to purchase will immediately terminate and [Sheffield] may list the property for sale.
“5. If [Namphy] is forced to vacate by order of court, the court orders [Namphy] to remove all debris, tires[,] and materials from the building and pr[e]mises during said 14 days within [which Namphy] has to vacate.”

When Namphy failed to pay Sheffield $17,900 by August 7, 2006, the trial court entered, on August 15, an order (“the August 15 order”) ordering Namphy to vacate the building and to remove all debris and tires by 5:00 p.m. on August 22, 2006. On September 8, 2006, Sheffield moved the trial court to find Namphy in contempt on the grounds that Namphy had violated the agreed order by failing to pay Sheffield $17,900 by August 7, 2006, and had violated the August 15 order by failing to vacate the building and to remove all tires and debris from the building by 5:00 p.m. on August 22, 2006.

On October 5, 2006, the trial court heard argument regarding whether it should find Namphy in contempt. With respect to his failure to pay the $17,900, Namphy argued that he should not be found in contempt because, he said, the agreed order made payment of the $17,900 optional rather than mandatory. That is, he argued that the agreed order gave him the option of (1) paying the $17,900 by August 7, 2006, in which case he would preserve his option to purchase the building and preserve his right to possession, or (2) refraining from paying the $17,900, in which case he would forfeit his option to purchase the building and an order evicting him from the building would issue on August 8, 2006. With respect to his failure to remove all of the tires and debris from the building by August 22, 2006, Namphy argued that the appropriate remedy for a violation of an order requiring a party in possession of property to vacate the property is an award of compensatory damages for any loss suffered by the party entitled to possession rather than a finding of contempt against the party who failed to vacate.

Sheffield, on the other hand, argued that the agreed order stated that Namphy “shall” pay the $17,900 on August 7, which, according to Sheffield, made Namphy’s payment of the $17,900 on August 7 mandatory rather than optional and that contempt is a proper remedy for violation of a court order making the payment of a sum of money mandatory and for violation of an order ordering a party to vacate property. At the conclusion of the hearing, the trial judge orally ruled that he found Namphy to be in contempt (1) for failing to pay Sheffield the $17,900, as required by the agreed order, and (2) for failing to remove all tires and debris from the building by August 22, 2006, as required by the August 15 order. He further ruled that Namphy would be incarcerated for contempt unless Namphy paid Sheffield $17,900 by 5:00 p.m. that day. Later that same day, the trial judge entered a written order confirming his oral ruling.

Namphy did not file a postjudgment motion challenging the trial court’s judgment. Instead, Namphy, on October 5, petitioned this court for a writ of mandamus ordering the trial court to set aside the judgment insofar as it ordered Namphy to pay the $17,900 by 5:00 p.m. on October 5 or suffer incarceration. This court ordered that Namphy’s petition for a writ of mandamus would be treated as an appeal.

On appeal, Namphy first argues that the trial court erred in finding him in contempt for his failure to pay the $17,900 because, he says, the agreed order made his payment of the $17,900 optional rather than mandatory. We find the agreed order to be ambiguous regarding whether the payment of the $17,900 by Namphy was optional or mandatory. On the one hand, the first sentence of the agreed order states that Namphy “shall” pay the $17,900 by August 7, 2006, which suggests that payment of the $17,900 was mandatory. On the other hand, the second sentence of the agreed order states that, provided Namphy pays the $17,900 by August 7, 2006, his option to purchase the building will be extended until August 20, 2006, which suggests that he had the option of (1) paying the $17,900 to extend his option to purchase the building until August 20, 2006, or (2) refraining from paying the $17,900, in which case his option to purchase the building would terminate on August 7, 2006. Given this ambiguity regarding whether the agreed order made payment of the $17,900 mandatory or optional, it was error for the trial court to find Namphy in contempt for his failure to pay the $17,900. Accordingly, we reverse the trial court’s judgment insofar as it found Namphy in contempt for his failure to pay the $17,900 and ordered him to pay it or suffer incarceration, and we remand the case to the trial court for further proceedings consistent with this opinion. Because we reverse that aspect of the trial court’s judgment on the basis of Namphy’s first argument, we pretermit discussion of Namphy’s second argument, which challenges that same aspect of the trial court’s judgment. Namphy has not challenged the trial court’s judgment insofar as it found him in contempt for his failure to remove all the tires and debris by August 22, 2006. Consequently, we express no opinion regarding that aspect of the trial court’s judgment.

REVERSED AND REMANDED.

PITTMAN, J., concurs.

THOMPSON, P.J., and MOORE, J., concur in the result, without writings.

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

THOMAS, Judge,

concurring in the result.

I concur in the result because I believe the better ground upon which to base our reversal of the contempt judgment is that payment of a contractual debt cannot be coerced by a contempt citation, see Ex parte Parker, 334 So.2d 911, 912 (Ala.Civ.App.1976)(quoted in Dolberry v. Dolberry, 920 So.2d 573, 576 (Ala.Civ.App.2005)). I think that Namphy essentially made that argument when he asserted that the parties’ settlement agreement incorporated into the agreed order (1) made payment of $17,900 “optional,” and (2) set out the consequences for nonpayment. I do not believe the agreement was in any sense ambiguous.

      . As noted above, the parties had actually agreed to a purchase price of $645,000.


author: BRYAN, Judge. THOMAS, Judge, MOORE, Judge,

text:
    Jimmy Curtis ACTON III v. Erica André Acton CRISWELL.
    2050896.
    Court of Civil Appeals of Alabama.
    May 18, 2007.
    Certiorari Denied July 13, 2007 Alabama Supreme Court 1061315.
    Mari Morrison, Birmingham, for appellant.
    Marilyn Scott Floyd, Legal Services Alabama, Selma, for appellee.
   BRYAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (A)(2)(A) & (F), Ala. R.App. P.; Ex parte Martin, 961 So.2d 83, 88 (Ala.1996); Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996); Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992); Ex parte McLendon, 455 So.2d 863 (Ala.1984); Webb v. Webb, 950 So.2d 322, 327 (Ala.Civ.App.2006); Kratz v. Kratz, 791 So.2d 971 (Ala.Civ.App.2000); J.T.H. v. W.R.H., 628 So.2d 894 (Ala.Civ.App.1993); Ward v. Rodenbaugh, 509 So.2d 910, 911 (Ala.Civ.App.1987); and Clayton v. Pair, 457 So.2d 420, 422 (Ala.Civ.App.1984).

The appellant’s request for an attorney’s fee on appeal is denied.

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

THOMAS and MOORE, JJ„ concur in part and dissent in part, with writings.

THOMAS, Judge,

concurring in part and dissenting in part.

This is a child-custody-modification case in which the trial court awarded custody of the parties’ minor child to Erica André Acton Criswell (“the mother”), awarded the mother child support, and denied Jimmy Curtis Acton III (“the father”) visitation rights. Although I would affirm the judgment insofar as it modifies the child-custody provision of the divorce judgment and awards the mother child support, I would reverse the judgment insofar as it denies all visitation rights to the father.

Although a trial court has a wide degree of discretion in visitation matters, see, e.g., Smith v. Smith, 887 So.2d 257, 264 (Ala.Civ.App.2003); Anonymous v. Anonymous, 620 So.2d 43, 44 (Ala.Civ.App.1993), this court has reversed judgments imposing visitation restrictions that were considered more severe than necessary to protect the best interests of the children, see, e.g., Smith v. Smith, 599 So.2d 1182, 1187 (Ala.Civ.App.1991) (reversing a judgment imposing a visitation restriction prohibiting the mother from allowing any male to whom she was not married or immediately related to be in her residence during visitation periods).

In my judgment, it is not in the child’s best interests to be denied all contact with his father. The trial court’s understandable concerns regarding the father’s alcohol abuse and neglectful care of the child can be addressed by requiring, among other things, that the father’s visitation be supervised, see Webber v. Webber, 854 So.2d 133, 137 (Ala.Civ.App.2003) (reversing a judgment automatically suspending the mother’s visitation privileges if she were to move beyond a certain geographical area and noting that “the trial court could have included a provision in its order requiring the mother to give prior written notification to the father of her intent to move from the restricted area or that the court could have ordered that the mother’s visitation be supervised”), or that the father undergo substance-abuse counseling and treatment, see E.M.C. v. K.C.Y., 735 So.2d 1225, 1230 (Ala.Civ.App.1999) (affirming a judgment prohibiting visitation “until the father obtain[s] professional counseling”).

MOORE, J., concurs.

MOORE, Judge,

concurring in part and dissenting in part.

Although I would affirm the trial court’s judgment insofar as it modifies the child-custody provision of the parties’ divorce judgment and awards the mother child support, I would reverse the judgment insofar as it denies all visitation rights to the father. I agree with Judge Thomas that the trial court exceeded its discretion by barring all visitation; I would reverse the trial court’s judgment denying visitation for the same reasons set forth in the lead opinion in Jackson v. Jackson, [Ms. 2050716, April 13, 2007] — So.2d — (Ala.Civ.App.2007) (plurality opinion), in which this court reversed the trial court’s judgment insofar as it required that the mother’s visitation be supervised.