author: PER CURIAM. THOMPSON, Presiding Judge, PER CURIAM.

text:
    MIKE BROOKS CAR WORLD, INC. v. Cordell SUDDUTH and Tina Sudduth.
    2080721.
    Court of Civil Appeals of Alabama.
    April 9, 2010.
    Opinion Overruling Application for Rehearing July 30, 2010.

      Gary P. Wolfe of Wolfe, Jones, Wolfe, Hancock & Daniel, LLC, Huntsville, for appellant.
    Will League of Siniard, Tiraberlake & League, Huntsville, for appellees.
   PER CURIAM.

Mike Brooks Car World, Inc. (“the dealership”), one of the defendants below, appeals from a judgment in favor of the plaintiffs below, Cordell Sudduth and Tina Sudduth. We reverse and remand with instructions.

On March 17, 2008, the Sudduths sued the dealership and Debbie Miller, one of the dealership’s employees. The Sudduths alleged that, on March 21, 2006, the dealership and Miller had represented to the Sudduths that the odometer of a 1994 Pontiac Grand Prix automobile (“the automobile”), which showed mileage of 67,647 miles, showed the actual mileage of the automobile; that that representation was false; that the dealership and Miller knew that that representation was false; and that the Sudduths, in reliance on that representation, had bought the automobile and had thereby suffered damage. Answering the Sudduths’ complaint, the dealership and Miller admitted that the Sud-duths had purchased the automobile from the dealership but denied all the other allegations of the complaint.

On November 24, 2008, the trial court received evidence ore tenus at a bench trial. During the Sudduths’ case-in-chief, Mr. Sudduth testified that, although Miller had completed the paperwork for the sale of the automobile, another employee of the dealership named Mark Ducker had made the representation to the Sudduths regarding the mileage of the automobile. Specifically, Mr. Sudduth testified that Ducker had represented to the Sudduths that the dealership had a “Carfax” vehicle-history report on the automobile and that Ducker guaranteed the Sudduths that the 67,647 miles shown on the odometer of the automobile was the actual mileage of the automobile. Mr. Sudduth further testified that, after he bought the automobile, he ordered his own Carfax report on the automobile, which apparently indicated that the actual mileage of the automobile was greater than 67,647 miles. The Sudduths attempted to introduce the Carfax report into evidence; however, the dealership objected on the ground that the Carfax report was hearsay, and the trial court sustained the objection. Mr. Sudduth did testify, however, that he went to the dealership immediately after receiving the Carfax report in order to return the automobile and that Ducker, when confronted with the Carfax report, stated that “the miles had probably been run back.” Mr. Sudduth also testified that the dealership refused to allow him to return the automobile.

When the Sudduths bought the automobile, they signed an odometer-disclosure statement, which was introduced into evidence. In pertinent part, the odometer-disclosure statement stated:

“I_state that the odometer now reads 67,647 miles and to the best of my knowledge that it reflects the actual mileage of the vehicle described below, unless one of the following statements is checked.
“ X (1) I hereby certify that to the best of my knowledge the odometer reading reflects the amount of mileage in excess of its mechanical limits.
“_ (2) I hereby certify that the odometer reading is not the actual mileage. Warning — odometer discrepancy.”

(Bold typeface in original.)

The Sudduths’ expert witness testified that the statement indicating that “the odometer reading reflects the amount of mileage in excess of its mechanical limits” was intended to be checked if the mileage shown on the odometer was the amount by which the mileage of the automobile exceeded the mechanical limit of the odometer. The expert further testified that the statement was intended for use when the sale involved an older automobile with an odometer that only registered five figures. Mr. Sudduth testified that the odometer on the automobile the Sudduths bought registered six figures.

At the close of the Sudduths’ case-in-chief, the dealership and Miller moved the trial court for a judgment on partial findings pursuant to Rule 52(b), Ala. R. Civ. P. The trial court granted the motion with respect to Miller, but it denied it with respect to the dealership. Following the trial, the trial court entered a judgment in which it found “that a salesman employed [by the dealership] intentionally committed fraud by misrepresenting material facts to the [Sudduths] inducing [them] to purchase the subject vehicle” and “that [the Sudduths] established [by] clear and convincing evidence that [the dealership] intentionally engaged in fraud by misrepresentation.” The judgment awarded the Sudduths compensatory damages in the amount of $7,094.87 and punitive damages in the amount of $5,000.

The dealership timely moved the trial court to alter, amend, or vacate the judgment on the ground, among others, that the Sudduths had failed to prove that their reliance on Ducker’s representation that the odometer of the automobile showed the actual mileage of the automobile was reasonable. The dealership’s motion was denied by operation of law on May 7, 2009. The dealership then timely appealed to this court.

Because the trial court received ore ten-us evidence, our review of its judgment is governed by the following principles:

“““[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Wattman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

The dispositive issue is whether the Sudduths proved that their reliance on Ducker’s representation that the odometer of the automobile showed the actual mileage of the automobile was reasonable. in Torres v. State Farm Fire & Casualty Co., 438 So.2d 757, 758-59 (Ala.1983):

“To recover in a fraud action filed after March 14, 1997, a plaintiff must prove that he or she reasonably relied on the defendant’s alleged misrepresentation. Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala.1997). The reasonable-reliance standard was the law before the release of Hickox v. Stover, 551 So.2d 259 (Ala.1989), and again became the law for all actions filed after March 14, 1997. This standard was well-stated
“ ‘Because it is the policy of courts not only to discourage fraud but also to discourage negligence and inattention to one’s own interests, the right of reliance comes with a concomitant duty on the part of the plaintiffs to exercise some measure of precaution to safeguard their interests. In order to recover for misrepresentation, the plaintiffs’ reliance must, therefore, have been reasonable under the circumstances ....
“ ‘ “If the purchaser blindly trusts, where he should not, and closes his eyes where ordinary diligence requires him to see, he is willingly deceived, and the maxim applies, ‘vol[e]nti non fit injuria.’
‘Munroe v. Pritchett, 16 Ala. 785, 789 (1849).’ ”

Alfa Life Ins. Corp. v. Green, 881 So.2d 987, 991-92 (Ala.2003) (footnote omitted).

“The return to the reasonable-reliance standard imposes again on a plaintiff a ‘general duty ... to read the documents received in connection with a particular transaction,’ Foremost [Ins. Co. v. Parham], 693 So.2d [409] at 421 [(Ala.1997) ], together with a duty to inquire and investigate. ‘Fraud is deemed to have been discovered when the person either actually discovered, or when the person ought to or should have discovered, facts which would provoke inquiry by a person of ordinary prudence, and, by simple investigation of the facts, the fraud would have been discovered.’ Gonzales v. U-J Chevrolet Co., 451 So.2d 244, 247 (Ala.1984). As this Court stated in Ex parte Caver, 742 So.2d 168, 172-73 (Ala.1999):
‘“Foremost ended the era of “ostri-chism” that had been heralded in when this Court adopted the “justifiable reliance” standard in Hickox v. Stover, 551 So.2d 259 (Ala.1989), and it foreclosed the right of a person to blindly rely on an agent’s oral representations or silence to the exclusion of written disclosures in a policy.’
“When reviewing a plaintiffs actions pursuant to the reasonable-reliance standard, this Court has consistently held that a plaintiff who is capable of reading documents, but who does not read them or investigate facts that should provoke inquiry, has not reasonably relied upon a defendant’s oral representations that contradict the written terms in the documents.”

AmerUS Life Ins. Co. v. Smith, 5 So.3d 1200, 1208 (Ala.2008).

The dealership argues that because (1) the odometer-disclosure statement given to the Sudduths indicated that the odometer did not show the actual mileage of the automobile if either of two statements had a check mark beside it and (2) one of those two statements had a check mark beside it, the Sudduths could not, as a matter of law, have reasonably relied on Ducker’s representation that the odometer showed the actual mileage of the automobile. We agree. Regardless of whether the automobile had an odometer registering five figures or six figures, the odometer-disclosure statement clearly indicated that the odometer did not show the actual mileage of the automobile. Given that disclosure, the Sudduths could not have reasonably relied on the oral representation that the odometer showed the actual mileage of the automobile. See AmerUS, supra. Accordingly, we reverse the trial court’s judgment and remand the action with instructions for the trial court to enter a judgment in favor of the dealership.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

THOMPSON, P.J., concurs in the result, dissents from the rationale, and dissents from the instructions on remand.

THOMPSON, Presiding Judge,

concurring in the result, dissenting from the rationale, and dissenting from the instructions on remand.

In reversing the trial court’s judgment, the main opinion relies on the principle that a party cannot be said to have reasonably relied on a fraudulent oral representation if that representation is contradicted by a writing. Because I do not agree that that principle is applicable to the present case, I respectfully dissent from the rationale of the main opinion as well as from the main opinion’s instructions to the trial court on remand. For separate reasons, however, I agree with the main opinion that the trial court’s judgment is due to be reversed.

Cordell Sudduth testified at trial that, on several separate occasions, Mark Duck-er represented to him that the mileage stated on the odometer of the vehicle the Sudduths purchased was accurate. Mr. Sudduth was then confronted with the odometer statement, which, as the main opinion recites, read as follows:

“I_state that the odometer now reads 67,647 miles and to the best of my knowledge that it reflects the actual mileage of the vehicle described below, unless one of the following statements is checked.
“ X (1) I hereby certify that to the best of my knowledge the odometer reading reflects the amount of mileage in excess of its mechanical limits.
“ (2) I hereby certify that the odometer reading is not the actual mileage. Warning — odometer discrepancy.”

(Bold typeface in original.)

As the main opinion points out, ‘“a plaintiff who is capable of reading documents, but who does not read them or investigate facts that should provoke inquiry, has not reasonably relied upon a defendant’s oral representations that contradict the written terms of the documents.’ ” 54 So.3d at 867 (quoting AmerUS Life Ins. Co. v. Smith, 5 So.3d 1200, 1208 (Ala.2008)). Mr. Sudduth testified at trial that he read the odometer statement and that he understood the reference in subpart (1) to “mechanical limits” to indicate the dealership’s view that there “might be something wrong with” the vehicle and that the vehicle might not be operating within its mechanical limits. The trial judge, himself, indicated that the odometer statement was worded in a confusing manner. The confusion caused by the wording of the statement may be attributable, at least to some extent, to the fact that it is not clear to what the word “its” refers in the sub-part the dealership checked. This confusion is heightened by the fact that, when understood in the manner apparently intended by the dealership, the odometer statement indicates that the vehicle had been driven 1,067,647 miles, a statement that is obviously and patently false.

Under the circumstances of this case, I conclude that a reasonable person could misunderstand the odometer statement as presented, and, as it was actually misunderstood by the Sudduths, it did not necessarily contradict the oral representations that Ducker had made to the Sudduths regarding the correctness of the odometer reading. Thus, in my view, the trial court did not err when it implicitly concluded that the Sudduths’ reliance on Ducker’s false oral representations was reasonable.

The dealership also argues on appeal that the Sudduths failed to offer any proof of their damages. I agree. In a case involving facts similar to those at issue in the present case, our supreme court discussed the proper measure of damages for fraud:

“Wilhoite contends that the misrepresentation occurred when Franklin advertised and offered for sale a 1982 Can Am Corvette, when, in fact, Franklin knew that it was a 1972 model. Based upon Franklin’s inducement, Wilhoite purchased the 1972 Corvette, believing that it was a 1982 model. Wilhoite alleged that he suffered damages because ‘the car he received was of less value’ and ‘he was caused to incur expenses’ to cure the defects in the car.
“The general measure of damages in a case of this type is the difference between what the property is actually worth and what it would have been worth if the property had been as represented. Martin v. Honeycutt, 341 So.2d 171 (Ala.Civ.App.1976). The purpose of damages in a case such as this is to place the defrauded person in the position he would occupy if the representations had been true. Morris v. Westbay Auto Imports, Inc., 512 So.2d 1373 (Ala.1987). All naturally resulting damages, including expenses incurred as a result of the fraud, are recoverable, but they must be actual damages proved at trial. P & S Business Machines, Inc. v. Olympia U.S.A., Inc., 707 F.2d 1321 (11th Cir.1983). The jury’s assessment of damages cannot be based on speculation or conjecture. [McLendon] Pools, Inc. v. Bush, 414 So.2d 92 (Ala.Civ.App.1982).
“Applying these rules to this case, and despite the rule that a jury verdict will be reviewed with all favorable presumptions, Jawad v. Granade, 497 So.2d 471 (Ala.1986), we find that there was no evidence to support the amount of damages awarded. Wilhoite testified that he traded a 1978 Jeep and $3,500 for the used Corvette. He testified further that he incurred expenses in fixing the defects in the car. He failed, however, to submit testimony concerning the amount of those expenses. Furthermore, Wil-hoite completely failed to establish the actual value of the Corvette or what it would have been worth had it been as represented.”

Wilhoite v. Franklin, 570 So.2d 1236, 1237 (Ala.Civ.App.1990).

In the present case, the Sudduths provided no evidence of the value of the vehicle as it was represented to be and no evidence of its value as it was. Thus, there was no evidence to support the trial court’s award of compensatory damages.

The Sudduths argue that the above-stated measure of damages applies only when the aggrieved party keeps the goods fraudulently sold to it, and they argue that they attempted to return the vehicle to the dealership. Although it may be true that whether a party keeps or returns goods fraudulently sold to it might affect the appropriate measure of damages, see Gable v. Boles, 718 So.2d 68, 72 (Ala.Civ.App.1998), the fact of the matter is that the Sudduths kept the vehicle and, instead of filing an action to rescind their contract with the dealership and to obtain restitution of the purchase price, continued to use the vehicle until it was destroyed in an accident. As a result, the general measure of damages for fraud applies to their cause of action against the dealership.

The Sudduths also argue that the trial court’s award can be justified on the basis of the mental anguish they suffered as a result of the dealership’s fraud. However, it is well settled “that in tort cases damages for mental anguish have to be linked to actual physical injury or ‘zone of danger,’ .... ” Birmingham Coal & Coke Co. v. Johnson, 10 So.3d 993, 999 (Ala.2008). The Sudduths have not demonstrated that they were physically injured or -within a zone of danger created by the dealership’s fraud.

Despite my view that the Sudduths failed to support their claim for compensatory damages, I do not believe that they are necessarily precluded from seeking damages in some form. For example, nominal damages are available to a plaintiff when “there is evidence of a breach of a legal duty and ... evidence from which actual damage can be inferred....” LaCoste v. SCI Alabama Funeral Servs., Inc., 689 So.2d 76, 81 (Ala.Civ.App.1996). Furthermore, “[a]n award of nominal damages will support an award [of] punitive damages.” Iliff v. Norwood Hodges Motor Co., 680 So.2d 248, 245 (Ala.Civ.App.1993). Because the trial court awarded compensatory damages to the Sudduths, it had no need to consider, and apparently did not consider, whether the Sudduths were entitled to nominal damages. As a result, I would reverse the trial court’s judgment and remand the cause to the trial court to reconsider whether and to what extent the Sudduths are entitled to an award of damages, taking into consideration the fact that the Sudduths failed to prove that they were entitled to compensatory damages.

On Application for Rehearing

PER CURIAM.

On application for rehearing, Cor-dell Sudduth and Tina Sudduth argue that, even if the evidence did not establish that they reasonably relied on the misrepresentation that the odometer of the automobile showed the actual mileage of the automobile, we should have affirmed the trial court’s judgment on the rationale that the evidence established a claim of suppression because, the Sudduths say, reasonable reliance is not an essential element of a claim of suppression. First, we note that the Sudduths did not specifically plead a claim of suppression; they pleaded a claim of misrepresentation only. Second, even if we assume that the Sudduths’ pleading a claim of misrepresentation was sufficient to encompass a claim of suppression, reasonable reliance is an essential element of a suppression claim. See Johnson v. Sorensen, 914 So.2d 830, 837 (Ala.2005) (“ ‘ “Although the term ‘inducement’ has often been used in the description of the fourth element of suppression, it is clear that a plaintiffs [‘reasonable reliance’] is an essential element of a suppression claim. See Liberty Nat’l Life Ins. Co. v. Sherrill, 551 So.2d 272, 273 (Ala.1989)(quoting Allstate Ins. Co. v. Ware, 824 So.2d 739, 744-45 (Ala.2002), quoting in turn Ex parte Household Retail Servs., Inc., 744 So.2d 871, 879 (Ala.1999))). Therefore, the Sudduths’ argument regarding suppression has no merit.

APPLICATION OVERRULED.

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

THOMPSON, P.J., dissents, without writing.

      1. See Black’s Law Dictionary 1605 (8th ed. 2004), defining the maxim "volenti non fit injuria" as “[t]he principle that a person who knowingly and voluntarily risks danger cannot recover for any resulting injury.”


source: Caselaw Access Project

author: MOORE, Judge. THOMPSON, Presiding Judge,

license: Public Domain

text:
    MAT SYSTEMS, INC., d/b/a Corporate Design Systems v. ATCHISON PROPERTIES, INC. Atchison Properties, Inc. v. MAT Systems, Inc., d/b/a Corporate Design Systems.
    2090091.
    Court of Civil Appeals of Alabama.
    July 2, 2010.

      I. David Cherniak and Rick A. La Trace of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellant/cross-appellee MAT Systems, Inc., d/b/a Corporate Design Systems.
    Bert P. Taylor and Abigail Lounsbury Morrow of Taylor Ritter, P.C., Orange Beach, for appellee/cross-appellant Atchi-son Properties, Inc.
   MOORE, Judge.

MAT Systems, Inc., d/b/a Corporate Design Systems (“MAT”) appeals from a judgment entered on a jury’s verdict awarding MAT $880 in damages against Atchison Properties, Inc. (“Atchison”). MAT asserts that the trial court erred in excluding from the jury’s consideration its request for compensatory damages based upon the replacement-cost of damaged products, that the amount of damages awarded to compensate MAT for its cleanup and storage expenses was insufficient, and that the trial court erred in admitting into evidence certain of Atchison’s exhibits. Atchison cross-appeals, asserting that the trial court erred in denying its motion for a judgment as a matter of law (“JML”) as to all claims asserted against it. We affirm.

Background

In 1991, Atchison purchased property located at 1100 Dauphin Street in Mobile. Atchison, through its principal, Tony At-chison (“Tony”), acted as a general contractor and hired subcontractors to renovate the property. In connection with those renovations, Atchison hired a subcontractor to remove an old sprinkler system from the property. In preparing to have the sprinkler system removed, Tony contacted the Board of Water and Sewer Commissioners of the City of Mobile d/b/a Mobile Area Water and Sewer (“MAWSS”) and requested that water service to the sprinkler system be discontinued. MAWSS responded to that request, and, according to Tony, he observed an employee of MAWSS access an underground valve located in the City’s right-of-way and “turn off’ the water service to the sprinkler system.

Believing the water supply to have been permanently terminated, Atchison’s subcontractor removed most of the pipes to the old sprinkler system. Certain of the pipes, however, were left in the building. At least one of those pipes, six inches in diameter and visible to all who viewed the property, remained connected to the City’s water supply, although the water supply had been turned off. That pipe was not permanently capped or equipped with a shut-off valve on the premises to prevent the flow of water into the pipe from the City’s water line because, Tony stated, he believed that MAWSS had permanently terminated the water supply to the sprinkler system.

Atchison’s renovations were completed and it began leasing the renovated property in the mid-1990s. In 1998, MAT became interested in leasing the renovated property. According to Tony McCain, one of MAT’s principals, MAT was engaged in the business of selling “custom-manufactured” commercial office furniture, cubicles, architectural walls, and flooring. After inspecting the renovated property and having Atchison perform additional work on the renovated property to suit MAT’s needs and design plans, MAT and Atchison entered into a commercial lease of the property (hereinafter referred to as “the leased premises”). Even after Atchison had performed MAT’s requested changes to the leased premises, the remaining six-inch pipe from the sprinkler system remained visible in the warehouse near the top of a warehouse wall. MAT then began using the leased premises and continued to do so without problem until May 2005.

On May 10, 2005, MAWSS undertook to replace an old fire hydrant in the vicinity of the leased premises. To replace the hydrant, MAWSS’s employees were required to turn off the water servicing the hydrant. MAWSS replaced the hydrant and then restored the water service. In restoring the water service to the hydrant, the MAWSS employee also returned the valve controlling water service to the leased premises to the “on” position although that valve had been in the “off’ position when MAWSS began working in the area. As a result, water service to the old sprinkler system was restored and water began flowing from the City’s water supply to those pipes remaining in the leased premises. Water entered the leased premises through the pipe on the wall of MAT’s warehouse, where MAT was storing products that MAT had previously sold to its customers and that its customers were not using at that time.

MAWSS’s employees immediately noticed water flowing from under the warehouse door and returned the valve to the off position. MAT was notified of the situation within minutes of the water intrusion. According to MAT’s employees and Tony, water again entered the warehouse through that same pipe several days later.

After approximately seven weeks, Southern Commercial Installations, Inc. (“SCI”), acting on behalf of MAT, emptied the contents of the warehouse, disposing of certain products and storing other products for MAT until January 2007. Although SCI was owned and operated by Wayne Maurin, a full-time employee of MAT, MAT claimed that it had incurred significant costs in emptying the warehouse, cleaning the warehouse, and storing the damaged products off-site. MAT also claimed that, as the bailee of the products in the warehouse, it was liable to its customers for the damaged products and, thus, entitled to recover compensatory damages based upon the cost to replace those damaged products.

On June 1, 2006, MAT sued Atchison asserting claims of breach of the lease agreement, negligence, and trespass on the case. MAT’s claims against Atchison were tried before a jury beginning on August 31, 2009. At the close of all the evidence, Atchison moved for a JML in its favor as to all claims or, alternatively, as to MAT’s request for recovery of replacement-cost damages. The trial court denied Atchison’s motion for a JML as to all claims, but it granted that motion as to MAT’s request for replacement-cost damages. The trial court submitted MAT’s breach-of-contract, negligence, and trespass claims to the jury; the trial court instructed the jury that, if it found in favor of MAT on the negligence or trespass claims, it could award MAT damages only for those costs reasonably incurred by MAT to empty and clean the warehouse and for storing the damaged products. On September 3, 2009, the jury returned a verdict in favor of MAT on the negligence and trespass claims; the jury awarded MAT $880 in damages. The jury found in favor of Atchison on the breach-of-contract claim.

On September 17, 2009, MAT moved, pursuant to Rule 59, Ala. R. Civ. P., for a new trial or, alternatively, to alter or amend the judgment. Although Atchison responded to MAT’s postjudgment motion, Atchison did not seek postjudgment relief from the denial of its motion for a JML. On October 9, 2009, MAT filed its notice of appeal with the Alabama Supreme Court; however, that appeal was held in abeyance pending the disposition of MAT’s post-judgment motion. See Rule 4(a)(5), Ala. R.App. P. On October 23, 2009, the trial court denied MAT’s pending postjudgment motion and MAT’s appeal ripened. The Alabama Supreme Court transferred MAT’s appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6). Atchison then filed its cross-appeal.

On appeal, MAT challenges the propriety of the JML entered in favor of Atchi-son on MAT’s request for replacement-cost damages; MAT argues that, as a result of that JML, MAT’s request for damages based upon the replacement costs of the damaged products was improperly excluded from the jury’s consideration. MAT also asserts that it was entitled to a new trial because, it argues, the jury awarded it insufficient damages to compensate it for the costs it incurred to clean the warehouse and to store the damaged products. Finally, MAT asserts that the trial court erred in admitting into evidence certain of Atchison’s exhibits. In its cross-appeal, Atchison asserts that the trial court erred in denying its motion for a JML as to all the claims asserted against it.

Atchison’s Cross-Appeal

We first address Atchison’s cross-appeal, because the resolution of the cross-appeal is potentially dispositive of MAT’s appeal. The trial court allowed MAT’s claims for breach of the lease agreement, negligence, and trespass on the case to go to the jury. In its preverdict motion for a JML, and again on appeal, Atchison argues that it was absolved of all liability by virtue of the exculpatory language included in the commercial lease executed by MAT and Atchison and that, as a result, none of MAT’s claims should have gone to the jury. In response to Atchison’s motion for a JML, MAT argued that Atchison was not entitled to the benefit of the exculpatory language because, under Alabama law, a lessor may not rely on exculpatory language in a lease when, at the time the landlord-tenant relationship arose, the lessor knew or had reason to know of the risks associated with a latent defect and failed to disclose those risks to the lessee.

We agree with MAT that, under applicable Alabama law, if substantial evidence was presented on the question whether Atchison, as the lessor, knew or had reason to know of the latent defect at issue and failed to disclose that defect to MAT, as the lessee, at the time the lease was executed, Atchison was not entitled to the protections afforded it by the exculpatory language in the lease. See, e.g., Taylor v. Leedy & Co., 412 So.2d 763, 764 (Ala.1982) (“Exculpatory clauses ... exonerate the landlord from liability for his own future negligence, ... not for concealment of a known latent defect which subsequently causes injury.... [A] latent defect is an exception to the coverage of an exculpatory clause.”).

Thus, in ruling on Atchison’s motion for a JML, i.e., in determining whether Atchi-son was entitled to the protection of the exculpatory language contained in the lease, the trial court first had to determine whether sufficient evidence had been presented to create a jury issue on the question whether Atchison knew or had reason to know of the latent defects in the premises and whether Atchison concealed those defects from MAT. Because the trial court denied Atchison’s motion for a JML as to all claims and instructed the jury to determine whether the above-stated rule prevented Atchison’s reliance on the exculpatory language, the trial court clearly decided that sufficient evidence on those questions had been presented. Atchison seeks appellate review of that determination.

In Cook’s Pest Control, Inc. v. Rebar, 28 So.3d 716 (Ala.2009), our supreme court stated:

“ ‘One who, on appellate review, seeks, on the ground of insufficiency of the evidence, the reversal of an adverse judgment and the entry of a judgment in his favor, must meet a two-pronged test: 1) He must ask for a directed verdict [now renamed a JML] at the close of all the evidence, specifying “insufficiency of the evidence” (lack of proof) as a ground; and 2) he must renew this motion by way of a timely filed post-judgment motion for J.N.O.V. [now renamed a renewed motion for a JML], again specifying the same insufficiency-of-the-evidence ground. See Rule 50, [Ala.] R. Civ. P., and Committee Comments; Bains v. Jameson, 507 So.2d 504, 507 (Ala.1987); and Ritch v. Waldrop, 428 So.2d 1 (Ala.1982).’ ”

28 So.3d at 722 (quoting King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So.2d 714, 716 (Ala.1987)).

Atchison failed to file a renewed motion for a JML after the jury returned its verdict. The record contains no post-judgment motion filed by Atchison and no indication that, after the jury returned its verdict, Atchison ever requested that the trial court revisit its ruling on the sufficiency-of-the-evidence issue. Without the filing of a renewed motion for a JML on that issue, Atchison has failed to properly preserve for appellate review the issue whether the trial court erred in denying its motion for a JML as to all claims. We, therefore, cannot reach the merits of that issue, and, as to Atchison’s cross-appeal, the trial court’s judgment is affirmed.

MAT’s Appeal

MAT’S Challenge to Evidentiary Rulings

We address MAT’s issues out of order. MAT asserts that Atchison’s exhibits 6 and 7, which were printouts of the results of Internet searches on the issue of “used office furniture,” were admitted into evidence in violation of the Alabama Rules of Evidence. Generally, rulings on the admissibility of evidence are within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion. Bama’s Best Party Sales, Inc. v. Tupperware, U.S., Inc., 723 So.2d 29, 32 (Ala.1998).

We need not, however, consider the merits of MAT’s evidentiary challenges because, as explained below, any error resulting from the admission into evidence of Atchison’s exhibits was harmless. At the trial, Harvey McCain, one of the principals of MAT, was questioned extensively about the information contained on those exhibits; that questioning, which was detailed and specific, occurred without objection. Atchison’s counsel then offered the exhibits into evidence, and MAT’s counsel objected, asserting various evidentiary objections. Thus, at the time MAT’s counsel lodged those objections, the jury had already heard McCain’s testimony on those issues and that testimony had already been made a part of the record. Thus, any error resulting from the trial court’s discretionary ruling to admit the exhibits into evidence was harmless because the exhibits were merely cumulative and repetitive of McCain’s testimony. See, e.g., C.E.W. v. P.J.G., 14 So.3d 166 (Ala.Civ.App.2009) (although father timely objected to certain questions regarding his incarcerations, he failed to object to other questions on the same issue; thus, father’s challenge on appeal to the admission of that testimony was waived); and Gobble v. State, [Ms. CR-05-0225, Feb. 5, 2010] — So.3d -, - (Ala.Crim.App.2010) (addressing alleged error in the admission of an exhibit as being harmless because “ ‘[t]he erroneous admission of evidence that is merely cumulative is harmless error’ ”) (quoting Dawson v. State, 675 So.2d 897, 900 (Ala.Crim.App.1995)). We, therefore, find no reversible error as to this issue.

MAT’S Request for Damages Based Upon the Cost to Replace the Damaged Products

MAT next asserts that the trial court erred in excluding from the jury’s consideration MAT’s request for $227,000 in damages “predicated upon the replacement cost of the bailed property in the [warehouse] that was damaged or destroyed on May 10, 2005.” MAT asserts that a “bailee may recover damages to bailed property notwithstanding the absence of a claim for such damages by the bailor and may use replacement costs as the measure of damages where no market exists for the bailed property.” MAT also asserts that, because the property stored in the warehouse was “custom-manufactured” for its customers, that property was unique and no market for that property existed. Thus, MAT argues, as the bailee of the property, it was entitled to recover damages based upon the costs to replace the damaged products.

In support of its argument, MAT relies on Ala.Code 1975, § 6-5-263, which provides:

“In case of bailments where the possession is in the bailee, a trespass committed during the existence of the bailment will give a right of action to the bailee for the interference with his special property and a concurrent right of action to the bailor for the interference with his general property.”

In view of § 6-5-263, we agree with MAT that, unless limited by the terms of the bailment contract, a trespass to the rights of a bailee gives rise to a right of action in the bailee for interference with the bailee’s special property rights. Section 6-5-263 does not, however, establish that, in every bailment, a bailee will have a property interest in the bailed property sufficient to support the recovery of damages.

Atchison challenges on appeal whether MAT’s interest in the bailed property was sufficient to entitle it to seek an award of damages for the loss of that property. Atchison asserts that MAT obtained no property rights in the bailed property, that ownership of the property in the warehouse remained with MAT’s customers, and that MAT’s employees admitted that they had no way of documenting which of the products belonged to which of MAT’s customers. MAT responds that its customers need not have asserted any claim for their damaged property as a prerequisite to MAT’s cause of action against At-chison.

We need not resolve this dispute because, even when such a right of action is found to exist in the bailee, a bailee, as any other plaintiff, must still provide a reasonable basis for the calculation of its claimed damages in order to recover.

‘“It is true that damages may be awarded only where they are reasonably certain. Damages may not be based upon speculation. Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So.2d 812 (Ala.1988); see also Alabama Power Co. v. Alabama Public Service Commission, 267 Ala. 474, 103 So.2d 14 (1958).... [The plaintiff] “must produce evidence tending to show the extent of damages as a matter of just and reasonable inference.” C. Gamble, Alabama Law of Damages § 7-1 (2d ed.1988), as cited in Industrial Chemical, supra, at 820....’
“Jamison, Money, Farmer & Co. v. Standeffer, 678 So.2d 1061, 1067 (Ala.1996). See also Birmingham News Co. v. Horn, 901 So.2d 27, 65 (Ala.2004) (damages for lost profits based upon tort claim are recoverable if proved with reasonable certainty). When a plaintiff fails to demonstrate damage or injury attributable to the defendant’s breach of contract or tortious act, a judgment awarding damages should not stand. See, e.g., Hensley v. Poole, [910 So.2d 96 (Ala.2005) ], Parsons v. Aaron, [849 So.2d 932 (Ala.2002) ].”

Systrends, Inc. v. Group 8760, LLC, 959 So.2d 1052, 1075-76 (Ala.2006).

In determining the proper measure of damages when personal property has been damaged,

“Alabama adheres to the general principle that one measures damages where personal property has been damaged by calculating the difference between the reasonable market value of the property immediately before it was damaged and the reasonable market value immediately after it was damaged. E.g., Sunshine Homes v. Hogan, 408 So.2d 149, 151 (Ala.Civ.App.1981); 1 Alabama Pattern Jury Instructions — Civil, Instruction 11:23 (2d ed.1993).”

Lary v. Gardener, 908 So.2d 955, 959 (Ala.Civ.App.2005).

“However, it is well settled that the foregoing general principle is not the sole applicable legal precept....
“Although not every item of personalty that is capable of being damaged as a result of another’s tortious conduct has an established market value, tortfeasor is not discharged of liability simply by the absence of such a value:
“ ‘The general rule establishing market value as a measure of value of personal property is not absolute and the courts are agreed that the absence of a market value for property injured or destroyed will not remit the owner to nominal damages only. In such a situation the courts will consider such other relevant facts and circumstances as determine the amount necessary to compensate the plaintiff. However, it is to be observed that this rule does not relieve the plaintiff of his burden of offering evidence showing that he has been damaged and the extent or amount of his loss, since the court will not base an award upon mere speculation. Southern Express Co. v. Owens, 146 Ala. 412, 41 So. 752, 8 L.R.A.,N.S., 369 [1906]; Kates Transfer & Warehouse Co. v. Klassen, 6 Ala.App. 801, 59 So. 355 [1912]; Sarkesian v. Cedric Chase Photographic Laboratories, Inc., 324 Mass. 620, 87 N.E.2d 745, 12 A.L.R.2d 899, notes 906, 909 [1949].
“ ‘The plaintiff, in the absence of evidence showing market value, may prove other factors of value such as the value of the property to him. Birmingham Ry. L. & P. Co. v. Hinton, 157 Ala. 630, 47 So. 576 [1908]; Cooney v. Pullman Palace-Car Co., 121 Ala. 368, 2[5] So. 712, 53 L.R.A. 690 [1898]; Buerger v. Mabry, 15 Ala.App. 241, 73 So. 135 [1916].’

“White v. Henry, 255 Ala. 7, 10, 49 So.2d 779, 781-82 (1950). To like effect is Southern Express Co. v. Owens, 146 Ala. 412, 41 So. 752 (1906):

“ ‘Ordinarily, where property has a market value that can be shown, such value is the criterion by which actual damages for its destruction or loss may be fixed. But it may be that property destroyed or lost has no market value. In such state of the case, while it may be that no rule which will be absolutely certain to do justice between the parties can be laid down, it does not follow from this, nor is it the law, that the plaintiff must be turned out of court with nominal damages merely. Where the article or thing is so unusual in its character that market value cannot be predicated on it, its value, plaintiffs damages, must be ascertained some other rational way, and from such elements as are attainable.’
146 Ala. at 426, 41 So. at 755-56. Accord, Restatement (Second) of Torts, §§ 911, 928 (1979); see generally W.E. Shipley, Annotation, ‘Measure of Damages for Conversion or Loss of, or Damage to, Personal Property Having No Market Value,’ 12 A.L.R.2d 902 (1950).”

Gardener, 908 So.2d at 959-60.

When no market for the property at issue exists, Alabama courts have recognized that the cost to repair or replace the property is “an evidentiary factor” that may be considered in determining the value of the property before and after the injury. Garner v. Kent Excavation, Inc., 532 So.2d 1033, 1034 (Ala.Civ.App.1988) (citing McCullough v. L & N R.R., 396 So.2d 683 (Ala.1981); and Arrick v. Fanning, 35 Ala.App. 409, 47 So.2d 708 (1950)). See also J. Marsh & C. Gamble, Alabama Law of Damages § 7:3 (5th ed.2004) (recognizing that evidence of cost of repair may be a relevant consideration in establishing the difference in value of personal property before and after an injury to that property). Thus, an owner of damaged property is generally not entitled to recover the replacement cost of that property as its full measure of damages; the replacement cost is merely one factor to consider in arriving at a proper valuation of the property before and after the injury. Other factors recognized as relevant to establishing the value of the property at the time of the injury are the original purchase price of the property or the value of the materials and labor required to produce the property at issue, the manner in which the property had been used, its general condition and quality, and any depreciation since its purchase or construction based upon its use, previous damage, or decay. See, e.g., The Lucille, 169 F. 719 (S.D.Ala.1909) (in action for damages to a ship where no market value for the ship before and after the injury could be established, damages were to be calculated by determining the original construction cost for the ship and then reducing that amount by the amount of the ship’s depreciation and the value of any salvageable parts). See also Laubaugh v. Pennsylvania R.R., 28 Pa.Super. 247 (1905) (determination of real and ordinary value of flood-damaged goods at the time of their injury would include consideration of original cost of the goods, the manner in which goods had been used, general condition of goods, quality of goods, and their depreciation since purchase or manufacture); and W.E. Shipley, Annotation, “Measure of Damages for Conversion or Loss of, or Damage to, Personal Property Having No Market Value,” 12 A.L.R.2d 902 (1950) (discussing cases in which various factors relevant to a calculation of damages are identified). Applying those principles, we review the evidence presented to determine whether the trial court erred in excluding from the jury’s consideration MAT’s claim for damages based upon the costs to replace the damaged products.

At trial, Harvey McCain testified that MAT exclusively sold “custom-manufactured office system components.” Testimony at trial established that the products stored in the warehouse consisted of, among other things, desks, work stations, wall panels, flooring, and floor coverings. Other testimony established that basic office equipment, such as desk chairs and task lights, was also stored in the warehouse on May 10, 2005. All of those products had been previously purchased by MAT’s customers and had been used by MAT’s customers.

Although MAT’s employees repeatedly testified that they knew of no market for used “custom-manufactured office components,” the evidence established that dealers of used office furniture exist in the Mobile area and throughout the United States; the evidence presented established that those dealers offer, among other things, used work stations, used cubicles, used offices chairs, and used office desks for sale. Additionally, on cross-examination, Pam Maurin, a MAT employee, admitted that the products in MAT’s warehouse certainly had value before the May 10, 2005, water intrusion but that she did not know how to value the products because she had no experience in the used-furniture industry.

Despite the “custom-manufactured” nature of the products, evidence was presented to indicate that the used products were not limited in value and usefulness to only the location for which they had been ordered. Pam Maurin explained that MAT’s customers might store previously purchased products with MAT while reconfiguring their facilities until they decided whether to reuse the previously purchased products. Wayne Maurin, also a MAT employee and Pam Maurin’s husband, testified that a customer also might store previously purchased products in MAT’s warehouse while relocating its business or office to a different physical location altogether; according to Wayne Maurin, such a customer might want to reuse the previously purchased products in its new location. That testimony established that the used products, despite their purportedly “custom-manufactured” nature, were capable of productive use in a location other than the one for which they had been ordered and manufactured.

MAT’s evidence also failed to establish that its customers intended to reclaim the property stored in the warehouse. It was undisputed at trial that, even before the May 10, 2005, incident, at least some of MAT’s customers had stored products in MAT’s warehouse but had never sought the return of those products. Wayne Maurin, who was also the owner of SCI, the company responsible for installing and moving furniture for MAT, admitted that, in the past, customers had not reclaimed their stored products and MAT had simply discarded the products.

MAT’s evidence also failed to establish with any degree of certainty the identity of the owners of the products in the warehouse, the age of the products in the warehouse, the condition of the products as they were accepted for storage by MAT, i.e., before the water entered the warehouse, or whether the products had any salvage value after the May 10, 2005, water intrusion. Wayne Maurin acknowledged that neither he, nor MAT, nor SCI had any way of knowing what products were in the warehouse, which customer owned which particular item, how long the customer had owned it, or the condition of the products at the time they were originally delivered to the warehouse. Pam Maurin further admitted that the items in the warehouse could have been anywhere from one to six years old and that she had no records to establish whether a product in the warehouse had been returned to MAT because of previous damage, poor condition, or because the customer had intended to reuse it. Additionally, Jenny Smith, a MAT employee, testified that some of the products removed from the warehouse had been stored there for years, that some of the products had been damaged before the May 10, 2005, water intrusion, and that, upon the removal of each box from the warehouse in July 2005, neither she nor Pam Maurin had opened the contents of each box to determine the condition of the contents of the box.

Further, MAT offered only scant evidence indicating a value that could be assigned to its damages. Pam Maurin testified that she had determined that it would cost MAT $227,000 to replace the products that had been stored in MAT’s warehouse. In arriving at that value, Pam acknowledged that her valuation of those products had been based solely on the replacement cost of those items. Pam admitted that neither she nor anyone else affiliated with MAT had attempted to determine whether the products stored in MAT’s warehouse had had any market value either before or after the water intrusion. Additionally, although Pam testified that MAT had incurred costs to replace products belonging to one of its customers, the Veterans Administration (“the VA”), that had been damaged by the May 10, 2005, water intrusion into the warehouse, she could not specifically identify the items she claimed had been replaced for the VA. MAT produced no invoices or checks to document the costs it claimed it had actually incurred to replace those items.

Based on the foregoing, we conclude that the evidence established that the used office furniture had value on the secondary market. “Ordinarily, where property has a market value that can be shown, such value is the criterion by which actual damages for its destruction or loss may be fixed.” Southern Express Co. v. Owens, 146 Ala. 412, 426, 41 So. 752, 755 (1906). Although the evidence indicated that a market value existed and could have been determined for the damages products, the only evidence offered by MAT related to the costs to replace those products with new products. Evidence of replacement costs, standing alone, was insufficient to allow the jury to establish a reasonable and fair-market value for the products both before the damage and after the damage. See SouthTrust Bank v. Donely, 925 So.2d 934, 943 (Ala.2005) (“It is the plaintiffs burden to produce competent evidence establishing the existence of and amount of damages.”); and Johnson v. Harrison, 404 So.2d 337, 340 (Ala.1981) (“[T]he plaintiff has the burden of offering evidence tending to show to the required degree, the amount of damages allegedly suffered.”). Without competent evidence of its claimed damages, the trial court properly excluded MAT’S request for damages based solely upon the costs to replace the products that had been in the warehouse on May 10, 2005.

Denial of MAT’S New-Trial Motion

MAT next asserts that the trial court erred in denying its motion for a new trial, which, it argues, should have been granted because the jury awarded MAT insufficient damages to compensate it for the costs it incurred in cleaning the warehouse after the water intrusion and in storing the products damaged by the water intrusion. “A jury’s verdict is presumed correct and will not be disturbed unless it is plainly erroneous or manifestly unjust.” Crown Life Ins. Co. v. Smith, 657 So.2d 821, 822 (Ala.1994). “[T]hat presumption is strengthened when the trial court has denied a motion for a new trial.” South-Trust Bank v. Donely, 925 So.2d at 943 (citing First Alabama Bank of South Baldwin v. Prudential Life Ins. Co. of America, 619 So.2d 1313 (Ala.1993)). A judgment based upon a jury verdict and sustained by the denial of a postjudgment motion for a new trial will not be reversed unless it is plainly and palpably wrong. National Sec. Ins. Co. v. Donaldson, 664 So.2d 871 (Ala.1995).

In Wells v. Mohammad, 879 So.2d 1188 (Ala.Civ.App.2003), this court addressed at length the considerations applicable to our review of a trial court’s ruling on a motion for a new trial on the ground on inadequate damages:

“Jury verdicts are presumed to be correct and will be set aside on the ground of an inadequate award of damages only where the award is so inadequate as to indicate that the jury was influenced by passion, prejudice, or improper motive. Helena Chem. Co. v. Ahern, 496 So.2d 12, 14 (Ala.1986).
“ ‘Where there is a dispute regarding the damages the plaintiff incurred as a proximate result of the defendant’s wrongful conduct, the determination of a damages award is exclusively within the discretion of the jury and the jury’s assessment should be afforded a strong presumption of correctness. Sizemore v. Patel, 702 So.2d 172, 174 (Ala.Civ.App.1997); Brannon v. Webster, 562 So.2d 1337, 1339 (Ala.Civ.App.1990); Nemec v. Harris, 536 So.2d 93, 94 (Ala.Civ.App.1988). Furthermore, in exercising its discretion, a jury has the exclusive right to weigh evidence, give credibility (or not) to witnesses, and draw inferences from the evidence before it. Brannon, 562 So.2d at 1339; Slaughter v. Burrell, 669 So.2d 954, 955 (Ala.Civ.App.1995).’
“Savoy v. Watson, 852 So.2d 137, 140 (Ala.Civ.App.2002).
“ ‘When reviewing a motion for new trial on the grounds of inadequate damages, the reviewing court must consider whether the verdict is so opposed to the clear and convincing weight of the evidence as to clearly fail to do substantial justice, and whether the verdict fails to give substantial compensation for substantial injuries. Orr v. Hammond, 460 So.2d 1322 (Ala.Civ.App.1984). In addition, the reviewing court must keep in mind that a jury verdict is presumed to be correct and will not be set aside for an inadequate award of damages unless the amount awarded is so inadequate as to indicate that the verdict is the result of passion, prejudice, or other improper motive. Orr v. Hammond, supra.
“Helena Chem. Co. v. Ahern, 496 So.2d at 14.”

Wells v. Mohammad, 879 So.2d at 1193-94 (emphasis in Wells removed).

In this case, the jury was instructed that, if it found in favor of MAT, it could award damages in an amount to “fairly and reasonably compensate” MAT for its costs in cleaning the warehouse and in storing the damaged products. On the issue of MAT’S expenses, the jury heard evidence that MAT had hired SCI, a company owned and operated by Wayne Maurin, one of MAT’S three employees, to clean the warehouse and to store the products removed from the warehouse. Wayne acknowledged that the wet products had remained in MAT’s warehouse “for a while” after May 10, 2005; other evidence indicated that MAT had allowed the products to remain in the warehouse until the first week of July 2005, some seven weeks after the water intrusion had occurred. Wayne admitted that MAT could have moved the products out of the warehouse immediately had it wished to do so; Pam Maurin also acknowledged that the damage to the items in the warehouse had probably worsened because of the length of time those items remained in the warehouse after sustaining water damage.

Wayne testified that, in order to clean out the warehouse, SCI had brought in a dumpster and a truck and, for those items not disposed of immediately, SCI had moved them to its warehouse and into additional space that it had rented for that purpose. Although SCI’s total bill was more than $70,000, Wayne testified that SCI had accepted $31,116 from MAT in settlement of its bill. According to Wayne, SCI’s bill had included $10,716 representing “billable hours for men to work,” $10,800 for storage services for dates “May 2005 through January 2006”; and $9,600 for storage services for February 2006 through January 2007.

Cross-examination of MAT’S witnesses established that, although MAT acknowledged that it had not emptied its warehouse until July 2005, SCI’s bill sought storage fees for the damaged products as of May 2005. Additionally, although MAT claimed that the products were a complete loss, MAT was seeking to recover costs for storing the damaged products from May 2005 until January 2007. Wayne also admitted that he had continued to receive his usual salary from MAT while he and his father had billed MAT for their services in pressure-washing the warehouse and in moving the products to SCI’s storage facility. Wayne also testified that SCI was subcontracted to MAT; thus, even before the May 10, 2005, water intrusion, SCI’s warehouse was dedicated to MAT’s use. Wayne further admitted that the invoices SCI had submitted to MAT for its services all bore the date of August 2005 but that they purported to bill for services SCI had rendered after that date.

Atchison also presented its own evidence establishing that it had offered free warehouse space to MAT for the purpose of storing the damaged products. Pam Mau-rin acknowledged that Atchison had offered MAT the use of warehouse space free of charge but that MAT had declined to use that space, opting instead to hire SCI.

Based on the evidence presented at trial, we conclude that whether MAT’s claimed expenses were reasonable and necessary as a result of the May 10, 2005, water intrusion was a controverted issue and was for the jury to resolve.

“It is well settled that a jury is not required to award the plaintiff damages representing medical expenses merely because those medical expenses were incurred. Savoy v. Watson, [852 So.2d 137 (Ala.Civ.App.2002) ]; Sizemore v. Patel, 702 So.2d 172 (Ala.Civ.App.1997); Bennich v. Kroger Co., 686 So.2d 1256 (Ala.Civ.App.1996); Brannon v. Webster, 562 So.2d 1337, 1339 (Ala.Civ.App.1990). When evidence pertaining to medical expenses is admitted, the jury is free to conclude that some or all of those expenses were unnecessary, or that those expenses were not incurred as a result of the negligence of the defendant. Savoy v. Watson, supra (citing Kite v. Word, 639 So.2d 1380 (Ala.Civ.App.1994), and quoting Bennich v. Kroger Co., supra). ‘A jury may question the “reasonableness and necessity of expenses and determine whether the claimed medical expenses are proximately caused by the negligence of the defendant.” ’ Kite v. Word, 639 So.2d at 1381 (quoting Vinzant v. Hughes, 579 So.2d 681, 683 (Ala.Civ.App.1991)).
“... This court has held that ‘[c]on~ fliets and weaknesses in the plaintiffs case may also be created through cross-examination of the plaintiffs witnesses.’ Bennich v. Kroger Co., 686 So.2d at 1257 (citing Brannon v. Webster, 562 So.2d at 1338).”

Wells, 879 So.2d at 1193-94.

Based on its award of only $880 in damages, the jury obviously decided that the majority of MAT’s claimed expenses was not reasonable or necessary. As in Wells, supra, the jury in this case was not obligated to award MAT damages for its claimed expenses simply because evidence of those expenses was presented. Atchi-son challenged those expenses on cross-examination, and that cross-examination exposed certain conflicts and weaknesses in the testimony and evidence offered in support of those expenses. We cannot say that the jury’s award of damages was “ ‘so opposed to the clear and convincing weight of the evidence’ ” as to be clearly incorrect because “the damages award is one that reasonable jurors could have made based on the particular record presented.” Wells, 879 So.2d at 1195 (quoting Helena Chem. Co. v. Ahern, 496 So.2d 12, 14 (Ala.1986), and Savoy v. Watson, 852 So.2d 137, 141 (Ala.Civ.App.2002)). We, therefore, affirm the trial court’s denial of MAT’s motion for a new trial.

Conclusion

Regarding Atchison’s cross-appeal, we affirm the trial court’s denial of Atchison’s motion for a JML as to all claims. Regarding MAT’s appeal, we affirm the trial court’s evidentiary rulings as to Atchison’s exhibits nos. 6 and 7, the JML entered in favor of Atchison as to MAT’s request for replacement-cost damages, and the denial of MAT’s motion for a new trial.

AFFIRMED.

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

THOMPSON, P.J., concurs in part and dissents in part, with writing.

THOMPSON, Presiding Judge,

concurring in part and dissenting in part.

It is certainly within the province of the jury to find that the costs of cleaning and storage as presented by MAT Systems, Inc., d/b/a Corporate Design Systems (“MAT”) were inflated. However, it is undisputed that, after the water incursion, MAT was required to empty its warehouse and have it cleaned. Even if the costs of storage were removed from the total costs of $31,116 that MAT claimed it paid relating to the cleaning of the warehouse, it is unreasonable to believe that only $880 was expended in the manpower and materials needed to empty the warehouse and clean it. Furthermore, nothing in the record supports a finding of expenses of only $880. I do not believe that the jury’s award of damages is fair and reasonable.

Because I would reverse that portion of the trial court’s judgment denying MAT’s motion for a new trial based upon the insufficiency of the damages awarded, I must respectfully dissent from that aspect of the main opinion. Otherwise, I concur in the main opinion.

      . It is unclear from the record whether MAT leased the entire premises renovated by Atchi-son or only a portion of that property.

      . Pam Maurin, a MAT employee, testified that she and Jenny Smith, another MAT employee, had prepared an inventory of the products as they were removed from the warehouse during the cleanup. That inventory was completed on or around July 5, 2005.

      . MAT also named MAWSS as a defendant, but the trial court subsequently entered a summary judgment in favor of MAWSS. After the trial, MAT sought to have the trial court set aside that summary judgment; the trial court denied that motion, and MAT has not challenged that ruling on appeal. As a result, we need not discuss MAWSS’s role in this case except when it is required for an understanding of the issues raised on appeal.

      . The exculpatory language in the lease provided:
      "Lessor shall not be liable for any loss or damage caused by, or growing out of, any breakage, leakage, getting out of order by defective conditions of said elevators, heating, air conditioning or other mechanical installations and/or systems, electric wiring, pipes, closets or plumbing or any of them, nor shall Lessor be liable for any damage to any property on said premises caused by or growing out of, fire, rain, lightning, wind, high water, over-flow water, freezing or other causes."

      . MAT offered no contracts to establish the terms of its bailment agreements with any of its customers, and it appears that no written contracts existed.

        . The parties tried this case apparently in agreement that the measure of damages applicable to noncommercial personal property governed the resolution of the amount of damages to be awarded, although the property stored in the warehouse was undisputedly commercial furniture. See Dean v. Johnston, 281 Ala. 602, 606, 206 So.2d 610, 614 (1968) (addressing the proper measure of damages applicable to claims involving commercial ve-hides; that measure of damages indudes consideration of any necessary repairs and the reasonable value of the commercial vehicle’s use or hire during the time required to make such repairs and fit it for business use). Because the parties agree that the principles applicable to noncommercial property govern in this case, we need not consider that issue further.

      . This case does not involve the typical categories of property having no established market value, such as family photographs, family mementos, family portraits, or used personal clothing. In cases in which such property is at issue, the owner of the property generally is allowed to offer testimony as to the value of the property or as to its importance to him or her.

      . Pam Maurin, a MAT employee, testified that the desk chairs MAT ordered for its customers were also "custom-ordered” because they were based on their customers’ color and fabric preferences, the intended user’s weight, height, and special needs for back support, whether the chair was intended for use at a computer or a desk, and whether the user needed arms on the chair.

      . MAT’s employees testified that, as a service to its customers, MAT stored in its warehouse products previously purchased from MAT; MAT provided that service to its customers free of charge.

      . The only' evidence offered on this point was the inventory list prepared by Pam Mau-rin on which a recurring note indicating “VA Replacement” had been placed under 73 of the products removed from the warehouse. The inventory list containing those notes was not admitted into evidence, and no objection to the omission of that exhibit was raised. Pam also acknowledged at trial that the note could have been entered inadvertently on the inventory list under many of those products and that the note did not necessarily indicate that all 73 products had been replaced for the VA.

      . Wayne also testified that his mother worked for SCI and that his father, who held full-time employment elsewhere, often helped out at SCI when needed.


author: MOORE, Judge.

text:
    Amos HOLMAN and Willie Mae Holman v. Woodroe SIMS and Julia Sims.
    2080809.
    Court of Civil Appeals of Alabama.
    July 16, 2010.

      Kenneth J. Lay, Legal Services Alabama, Inc., Birmingham, for appellants.
    William E. Smith, Birmingham, for ap-pellees.
   MOORE, Judge.

Amos Holman and his wife, Willie Mae Holman, appeal from a summary judgment entered by the Blount Circuit Court (“the trial court”) in favor of Woodroe Sims and his wife, Julia Sims, who is Willie Mae’s sister.

Facts and Procedural History

On September 10, 2007, the Simses sued the Holmans and other fictitiously named defendants, asserting separate claims of breach of contract, negligence, fraud, willful misrepresentation, willful deceit, and wantonness. The Simses asserted that the Holmans had asked the Simses to loan them money to purchase a house in Alabama. According to the complaint, the Holmans and the Simses had signed a loan agreement on April 6, 2006, pursuant to which the Simses had loaned the Holmans $45,000 for the purchase of real property located in Blount County (“the Alabama property”). The parties’ agreement, which was attached to the complaint, required the Holmans to repay the full amount of the loan within three days of their selling property in Inkster, Michigan (“the Michigan property”). If the Hol-mans failed to sell the Michigan property by August 1, 2006, the Holmans were required by the agreement to repay the entire loan amount by April 6, 2007. According to the agreement, if the Holmans failed to repay the entire loan amount by April 6, 2007, then the Holmans would transfer the title to the Alabama property to the Simses. The Simses asserted that the Holmans had neither repaid any portion of the loan amount nor deeded the Alabama property to the Simses. The Simses alleged that the Holmans had breached their agreement; that the Hol-mans had negligently or wantonly represented their ability to repay the loan and had negligently failed to repay the loan; and that the Holmans had fraudulently induced the Simses into making the loan by willfully and intentionally suppressing material facts regarding their financial condition and by willfully promising to repay the loan or to deed the Alabama property to the Simses with no intention of keeping those promises and with an intent to deceive the Simses. The Simses requested a judgment for compensatory and punitive damages plus interest and costs, attorney’s fees, and any other relief to which they were entitled.

On November 6, 2007, the Simses filed a motion for a default judgment against the Holmans because the Holmans had failed to file a pleading or an answer or to otherwise defend against the Simses’ complaint. The Holmans filed an answer, signed by both Amos and Willie Mae, on December 27, 2007, in which they asserted that they had signed the agreement with the expectation that the Michigan property would sell within one year and that the parties had been relying on that sale taking place in order to allow the Holmans to repay the loan. The Holmans denied that they had committed any fraud against the Simses, and they stated that the Simses knew that the Holmans had no money with which to repay the loan unless the Michigan property sold. The Holmans further asserted, among other things, that they had failed to submit the title to the Alabama property to the Simses because they had hoped that, by lowering the price on the Michigan property, the Michigan property would sell so that they could avoid a lawsuit and that they were willing to work out a reasonable agreement with the Simses to repay the loan.

On February 1, 2008, the trial court entered an order setting the case for a trial on October 27, 2008. On October 21, 2008, the Simses filed a motion for a summary judgment. The Simses attached a copy of the loan agreement, which they argued amounted to a valid lawful contract; noted that the Holmans had admitted in their answer that they had entered into the agreement; asserted that the Hol-mans had not repaid the loan or conveyed the Alabama property in breach of the agreement; and maintained that they had been damaged by the Holmans’ failure to convey the Alabama property to them, by having lost interest on the loan, by having to pay property insurance and taxes on the Alabama property, and by having incurred attorney’s fees. The Simses sought a judgment awarding them the Alabama property, ejecting the Holmans from the Alabama property, ordering the Simses to reimburse them for the property insurance and taxes they had paid on the Alabama property, ordering the Holmans to pay interest on the loan from July 7, 2007, to the date the Simses receive the title and deed to the Alabama property, and ordering the Holmans to pay court costs and attorney’s fees. Notably, the Simses did not move for a summary judgment on the tort counts contained in their complaint.

In an entry on the case-action-summary sheet dated October 23, 2008, the trial court noted that the Simses’ summary-judgment motion “shall be taken up on October 27, 2008,” the date set for the trial. On that date, after an apparent hearing, the trial court entered an order on the case-action-summary sheet, stating: “Case called and [the Holmans] given [thirty] (30) days to hire an attorney and file written response to [the Simses’] motion for summary judgment or court will grant summary judgment.” Below that entry, the case-action-summary sheet indicates that a copy of that order was sent to all parties on October 27, 2008; however, the order was not entered into the State Judicial Information System (“SJIS”).

On November 20, 2008, the Holmans retained legal counsel, who filed a notice of appearance through SJIS. On November 28, 2008, the Simses filed a renewed motion for a summary judgment. In that motion, they asserted that the Holmans had not complied with the October 27, 2008, order by filing a written response to the motion for a summary judgment and that, as a result, the Simses’ motion should be granted. On December 16, 2008, the trial court entered an order granting the Simses’ motion for a summary judgment, finding that the loan agreement was a valid and enforceable contract and that the Holmans were in breach of that contract; granting full title to the Alabama property to the Simses; ordering the Holmans to convey and execute a deed to the Alabama property and to vacate the property within 10 days; and ordering the Holmans to pay court costs and the Simses’ expenses and attorney’s fees as outlined in the agreement, specifically, court costs of $651, attorney’s fees of $6,256.88, reimbursement for payments the Simses made on the Hol-mans’ behalf for property taxes and property insurance in the amount of $3,228.03, and interest on the loan in the amount of $9,455, pursuant to the agreement and § 8-8-8, Ala.Code 1975.

On January 12, 2009, the Holmans filed a motion to alter, amend, or vacate the summary judgment and a motion for a stay. On January 16, 2009, the trial court entered an order granting the Holmans’ motion for a stay and setting their motion to alter, amend, or vacate for a hearing on February 5, 2009. The Simses filed a response to the Holmans’ motion to alter, amend, or vacate on February 3, 2009. On February 5, 2009, the Holmans filed an amended motion to alter, amend, or vacate. The Simses filed an amended response on February 9, 2009.

On April 29, 2009, the Simses filed a motion requesting that the trial court enter an order denying the Holmans’ motion to alter, amend, or vacate, and lifting the stay that had been entered on January 16, 2009; the trial court granted that motion on May 13, 2009. The Holmans filed a motion for a stay and to set a supersedeas bond on May 26, 2009; the trial court granted that motion on June 5, 2009. The Holmans filed their notice of appeal to this court on May 26, 2009.

“We first consider whether we have jurisdiction over this appeal, because ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)).

This court has jurisdiction over appeals involving civil cases when the amount involved, exclusive of interest and costs, is less than $50,000, see Ala.Code 1975, § 12-3-10. However, this court may only review a judgment for less than $50,000 that is final, i.e., a judgment that conclusively determines all the issues before the court and ascertains and declares the rights of the parties involved. See Garner v. Decatur Utils., 709 So.2d 1309, 1310 (Ala.Civ.App.1998). A judgment that does not resolve all the claims asserted by all the parties is an interlocutory order that will not support an appeal. See Stone v. Haley, 812 So.2d 1245, 1246 (Ala.Civ.App.2001).

In this case, the order granting the Simses’ summary-judgment motion fully adjudicates the breach-of-contract claim contained in the first count of the Simses’ complaint. The order does not, however, adjudicate the tort claims contained in the complaint. The Simses did not move for a summary judgment on the tort claims, and the order granting the Simses’ summary-judgment motion did not address those claims, even impliedly; therefore, those claims remain pending in the trial court.

Under Rule 54(b), Ala. R. Civ. P., “[w]hen more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for entry of judgment.”

At the end of the summary-judgment order, the trial court stated that, “finding no reason for delay, this judgment is final.” However, “a Rule 54(b) certification should not be entered if the issues in the claim being certified and a claim that will remain pending in the trial court ‘ “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” ’ Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002) (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)).” Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006). Because the resolution of each of the claims remaining before the trial court depend, in part, on whether the Holmans failed to keep their promise to repay the loan or to deed the Alabama property to the Simses, we conclude that those claims are so closely intertwined with the breach-of-contract claim that the trial court’s attempt to certify the summary judgment as final was invalid. See BB&S Gen. Contractors, Inc. v. Thornton & Assocs., Inc., 979 So.2d 121, 125 (Ala.Civ.App.2007). Thus, the order granting the Simses’ summary-judgment motion did not terminate the action, and that order remains subject to revision at any time before final adjudication. See Rule 54(b), Ala. R. Civ. P.

“ ‘ “When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.” ’ Bryant [v. Flagstar Enters., Inc.], 717 So.2d [400,] 402 [(Ala.Civ.App.1998)] (quoting Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974)).” Hamilton v. CSC Distribution, Inc., 10 So.3d 589, 592 (Ala.Civ.App.2008). Because the Holmans are appealing from a nonfinal judgment, we have no jurisdiction and we must dismiss the appeal.

APPEAL DISMISSED.

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

      . Those figures were based on two verified statements filed by the Simses' attorney.


author: BRYAN, Judge.

text:
    Tiffany Sasser MEEK v. William Patrick MEEK.
    2090026.
    Court of Civil Appeals of Alabama.
    July 16, 2010.

      Lynn F. McConnell, Fairhope, for appellant.
    Debbie Lindsey Jared of Jared & Brun-son, Elba, for appellee.
   BRYAN, Judge.

Tiffany Sasser Meek (“the wife”) appeals from a judgment of the Baldwin Circuit Court that divorced her from William Patrick Meek (“the husband”). We dismiss the appeal as being from a nonfinal judgment.

The parties married on March 11, 1995, and one child was born of the marriage, a girl born in May 2003 (“the child”). On June 1, 2006, the husband filed a complaint for a divorce on the grounds of incompatibility of temperament and an irretrievable breakdown of the marriage. In his complaint, the husband requested that the trial court equitably divide the marital assets and liabilities of the parties. On June 26, 2006, the trial court entered a “standard” order (“the June 2006 order”) that addressed issues such as child support, visitation, the financial obligations of the parties, and the disposal of assets during the pendency of the divorce proceedings. The case was initially set for trial on September 26, 2006, but it was continued several times throughout 2006 and 2007.

On November 26, 2007, the husband filed a motion seeking to hold the wife in contempt because, he alleged, the wife had restricted his visitation with the child in violation of the visitation provisions in the June 2006 order. The trial court conducted an ore tenus hearing on the pending divorce complaints and the husband’s motion for contempt on May 2, 2008, on July 81, 2008, and on November 12, 2008.

On April 14, 2009, the wife filed an “Instanter Motion to Require Compliance with [the June 2006 order]” (“the wife’s motion for contempt”). In that motion, the wife alleged that the husband was in contempt of paragraph four of the June 2006 order, which ordered the parties “to pay debts incurred during the marriage and any other regular, recurring monthly financial obligations ... in the same manner and from the same sources as they have customarily been paid during the marriage.” The wife also alleged that the husband was in contempt of paragraph five of the June 2006 order, which ordered that “[t]he parties shall not dispose of assets acquired during the marriage without leave of court, except where necessary in the normal and reasonable course of business.” As noted in the wife’s motion for contempt, the June 2006 order was still in effect because the trial court had not entered another order changing or amending the provisions in the June 2006 order.

The trial court conducted a hearing on the wife’s motion for contempt on May 4, 2009. A transcript from that hearing is in the record on appeal, and, during the hearing, the trial court stated that a “draft order” had been sent via electronic mail (“e-mail”) to the parties’ attorneys shortly after the final ore tenus hearing in November 2008; apparently, the draft order eon-tained certain provisions that the trial court wanted to include in the final judgment. The trial court determined that the draft order sent via e-mail was as effective as if the decisions set forth in the draft order had been “verbally ordered ... from the bench.” The record indicates that the trial court determined that the wife’s motion for contempt had been filed after a decision had been rendered, apparently referring to the 'draft order that was sent via e-mail. Thus, according to the trial court, the June 2006 order was no longer in effect at the time that the wife’s motion for contempt was filed. Following the hearing on the wife’s motion for contempt, the trial court entered an order that stated: “The [wifej’s [motion for contempt] will be taken as a Motion to Alter, Amend, or Vacate upon the entry of the Final Decree in this matter.”

On June 26, 2009, the trial court purported to enter a final judgment that divorced the parties (“the June 2009 order”). The June 2009 order, among other things, awarded the wife legal and physical custody of the child; awarded the husband visitation with the child; ordered the husband to pay child support; awarded the husband the dependent-child income-tax deduction; ordered the husband to pay the wife rehabilitative alimony retroactively from November 16, 2008, and prospectively from that date for 24 months; ordered the husband to pay one-half of the wife’s health insurance “for a period of [24] consecutive months following this divorce”; awarded the wife all equity in the marital residence, which was ordered to be sold; and awarded the wife 50% of the husband’s retirement fund. Finally, the trial court “ordered” that the June 2009 order became effective on November 16, 2008, approximately 7 months before the entry of the judgment.

On July 24, 2009, the wife purported to file an “amended and restated motion to alter, amend, or vacate” or, in the alternative, a motion for a new trial, pursuant to Rule 59, Ala. R. Civ. P. In her motion, the wife again sought to hold the husband “accountable for his obligations” pursuant to the June 2006 order; she also sought postjudgment relief from certain provisions in the June 2009 order. The trial court conducted a hearing on the wife’s motion and entered an order amending certain provisions of the June 2009 order that were related to, among other things, the marital residence and the husband’s retirement account. The wife filed a notice of appeal to this court on October 6, 2009.

On appeal, the wife challenges certain provisions in the June 2009 judgment. However, before we consider the wife’s contentions on appeal, we must determine if this court has jurisdiction to hear the appeal. Generally, an appeal to this court lies only from the entry of a final judgment. See Richburg v. Richburg, 895 So.2d 311, 313 (Ala.Civ.App.2004) (quoting Marsh v. Wittmeier, 280 Ala. 172, 173, 190 So.2d 920, 920 (Ala.1966)) (“ ‘A final judgment is necessary to give jurisdiction to this court on appeal.’ ”). “A judgment is final if it disposes of all the claims and controversies between all the parties.” Id. (citing Heaston v. Nabors, 889 So.2d 588 (Ala.Civ.App.2004)). “The only exception to this rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.” Henning v. Henning, 999 So.2d 523, 525 (Ala.Civ.App.2008).

The record on appeal reveals that the husband, on November 26, 2007, and the wife, on April 14, 2009, filed motions for contempt that alleged violations of certain provisions of the June 2006 order during the pendency of the divorce proceedings. The record does not contain an order disposing of either motion for contempt. “The pendency of an unadjudi-cated contempt motion alleging a party’s failure to obey orders entered during the progress of the litigation renders a judgment nonfinal.” A.C. v. C.C., 34 So.3d 1281, 1287 (Ala.Civ.App.2009) (citing Decker v. Decker, 984 So.2d 1216 (Ala.Civ.App.2007), and Heaston v. Nabors, supra). “[A] trial court’s failure to rule on a contempt motion relating to an interlocutory order [in a divorce proceeding] would render any subsequent judgment nonfinal because the filing of the contempt motion would not be considered as having initiated a separate proceeding.” Decker v. Decker, 984 So.2d at 1220.

The trial court apparently did not rule on the wife’s motion for contempt because it was under the impression that a draft order sent to the parties’ attorneys via e-mail constituted a rendition of a final judgment that replaced the June 2006 order. However, Rule 58, Ala. R. Civ. P., which sets forth the procedure for rendition and entry of a final judgment, states:

“(a) Rendition of Orders and Judgments. A judge may render an order or a judgment: (1) by executing a separate written document, (2) by including the order or judgment in a judicial opinion, (3) by endorsing upon a motion the words ‘granted,’ ‘denied,’ ‘moot,’ or words of similar import, and dating and signing or initialing it, (4) by making or causing to be made a notation in the court records, or (5) by executing and transmitting an electronic document to the electronic-filing system.
“(b) Sufficiency of Order or Judgment. An order or a judgment need not be phrased in formal language nor bear particular words of adjudication. A written order or a judgment will be sufficient if it is signed or initialed by the judge ... and indicates an intention to adjudicate, considering the whole record, and if it indicates the substance of the adjudication.
“(c) Entry of Order or Judgment. Upon rendition of an order or a judgment as provided in subdivision (a)(l-4) of this rule, the clerk shall forthwith enter such order or judgment in the court record. An order or a judgment shall be deemed ‘entered’ within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System. An order or a judgment rendered electronically by the judge under subdivision (a)(5) of this rule shall be deemed ‘entered’ within the meaning of these Rules and the Rules of Appellate Procedure as of the date the order or judgment is electronically transmitted by the judge to the electronic-filing system. The entry of the judgment or order shall not be delayed for the taxing of costs. Interest upon a judgment runs from the date the court renders the judgment.”

(Emphasis added.)

Although the trial court believed that an e-mail of a draft order was the rendition of a judgment in this case, Rule 58 does not allow for such method of rendition, nor does it allow for an “oral” rendition of a judgment. See, e.g., Bell v. Bell, 509 So.2d 912, 914 (Ala.Civ.App.1987) (holding that “[a] decree of divorce must be in written form”). We recently stated, in Gilliam v. Gilliam, 43 So.3d 615, 618 (Ala.Civ.App.2010), that “[a] judgment, although it has been rendered, is not considered effective until it has been entered within the meaning of Rule 58(c).” Thus, even if the trial court had properly rendered an order shortly after the November 2008 ore tenus hearing, the record indicates that an “effective” judgment was not entered into the State Judicial Information System until June 26, 2009. Thus, the June 2006 order remained in effect until the trial court entered a judgment that disposed of all the claims and controversies between the parties, including the pending contempt motions filed by each party.

“The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.” Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006). Because a review of the record in this case, reveals that the June 2009 order is not a final judgment, and because the trial court did not certify the June 2009 order as final pursuant to Rule 54(b), Ala. R. Civ. P., this court does not have jurisdiction to hear the wife’s appeal; therefore, we must dismiss the appeal.

APPEAL DISMISSED.

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

      . We note that the wife has attached several documents in an "appendix'' to her brief on appeal. However, "we are precluded from considering those items because they are not contained in the record on appeal.” Henning v. Henning, 26 So.3d 450, 453 (Ala.Civ.App.2009) (citing Goree v. Shirley, 765 So.2d 661, 662 (Ala.Civ.App.2000) ("reiterating the principle that '[t]he record on appeal cannot be supplemented or enlarged by the attachment of an appendix to an appellant’s brief ")).

      . The record indicates that the wife had filed a complaint for a divorce in a separate action; however, an entry in the State Judicial Information System reveals that the trial court consolidated the parties' pending divorce actions on September 14, 2006.

      .On December 8, 2008, the trial court entered an electronically filed order that stated that the husband’s attorney was to prepare a final order to be reviewed in January 2009. Nothing in the record indicates that an order was prepared at that time or that a review hearing was conducted in January 2009. The record contains an order that "reset” the case for disposition on February 13, 2009, but there is no indication in the record that a hearing was conducted on that date either.

      . This case was not assigned to Judge Bryan until June 8, 2010.

      . Because the June 2009 order did not become effective until it was entered into the State Judicial Information System on June 26, 2009, any attempt by the trial court to "order” that the June 2009 order became effective on November 16, 2008, is void.

      . We note that the wife, on appeal, has raised an issue about two parcels of land that were not disposed of in the June 2009 order or in the order amending the June 2009 order. We express no opinion regarding whether the two tracts of land are marital property or separate property of the husband, but we note that the failure to dispose of all marital assets renders a divorce judgment nonfinal. See Johnson v. Halagan, 29 So.3d 915, 918 (Ala.Civ.App.2009).