author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    Ex parte Leslie Marie PIERCE. (In re Ryan Buck Pierce v. Leslie Marie Pierce).
    2090131.
    Court of Civil Appeals of Alabama.
    April 30, 2010.

      William G. Werdehoff and Stephanie W. Werdehoff of Werdehoff & Werdehoff, Huntsville, for petitioner.
    Joan-Marie Dean, Huntsville, for respondent.
   THOMPSON, Presiding Judge.

Leslie Marie Pierce (“the mother”) filed a petition for a writ of mandamus regarding an order of the Madison Circuit Court (hereinafter “the trial court”) in which the trial court determined it had jurisdiction over a child-custody dispute between the mother and Ryan Buck Pierce (“the father”). The pertinent facts of this matter are undisputed.

The mother and the father were married on April 14, 2007. The parties resided in California until September 2007, when they moved to Alabama. A child was born to the parties on August 12, 2008.

On April 24, 2009, the mother and the child moved to Durango, Colorado, in order to live closer to the mother’s family. The father remained in Alabama for several months after the mother and the child moved to Colorado. The father visited the mother and the child in Colorado for two days in May 2009. In the underlying action, which was filed by the father in August 2009, the parties initially disputed whether the father had moved, albeit temporarily, to Colorado in July 2009, and the trial court received ore tenus evidence on the issue whether it had jurisdiction to consider the parties’ child-custody dispute. In a September 28, 2009, “pendente lite” order that is discussed more thoroughly later in this opinion, the trial court found that the father had left Alabama on July 24, 2009, with the intention of moving to Colorado. The father arrived in Colorado on July 26, 2009, but he had to return to Alabama on July 30, 2009, because of a medical emergency. The father has remained in Alabama since that time.

On August 4, 2009, the mother filed in the District Court of La Plata County, Colorado (hereinafter “the Colorado court”), an action seeking a divorce from the father. In her divorce complaint, the mother asked the Colorado court to “enter orders regarding the status of the marriage; best interest of the child; orders for child support; division of property and debts; and any other necessary orders.” Although the materials submitted to this court do not indicate that the mother expressly sought an award of custody of the parties’ child, under Colorado law the divorce complaint was sufficient to assert a claim for custody of the child in the Colorado court. See In re Marriage of Barnes, 907 P.2d 679, 682 (Colo.Ct.App.1995) (“Section 14-10-123, C.R.S. (1987 Repl.Vol. 6B) of the [Uniform Dissolution of Marriage Act] provides that a parent may commence a ‘child custody proceeding' under that act either by filing a petition for dissolution [of the marriage] or by filing a petition seeking custody of the child.”). We further note that the parties, the trial court, and the Colorado court all treated the mother’s divorce complaint as asserting a claim seeking an award of custody of the child.

On August 20, 2009, the father filed in the trial court a complaint seeking a divorce from the mother and asserting a separate claim for custody of the parties’ child. In seeking an award of custody, the father alleged that the trial court, rather than the Colorado court, had jurisdiction over the custody issue pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), § 30-3B-101 et seq., Ala.Code 1975. We note that both Alabama and Colorado have adopted the UCCJEA, see § 30-3B-101 et seq., Ala.Code 1975, and § 14-13-101 et seq., Colo.Rev.Stat. (2009). The pertinent sections of Colorado’s version of the UCCJEA are substantially the same as those adopted by Alabama.

The mother moved to dismiss the father’s divorce complaint, arguing that the trial court lacked subject-matter jurisdiction over the action. The mother also filed in the trial court a separate motion to dismiss that part of the father’s divorce complaint seeking an award of custody of the child. In support of that motion to dismiss, the mother argued that, under the UCCJEA, the Colorado court had jurisdiction over the parties’ custody dispute.

The trial court conducted an ore tenus hearing and received evidence concerning the issue of which court had jurisdiction over the custody dispute. Thereafter, on September 23, 2009, the trial court entered its “pendente lite” order in which it, among other things, determined that it lacked subject-matter jurisdiction over the father’s divorce action but that, based on the facts presented to it at that time, it had subject-matter jurisdiction over the custody dispute. As part of its September 23, 2009, order, the trial court ordered the parties to arrange a telephone conference to allow the parties, the trial court, and the Colorado court to discuss the issues pertaining to jurisdiction over the custody dispute. On October 7, 2009, after that telephone conference, the trial court entered an order in which it, among other things, assumed jurisdiction over the parties’ custody dispute. The mother timely filed a petition for a writ of mandamus challenging that part of the trial court’s October 7, 2009, order in which it determined it had jurisdiction to consider the custody issue.

With regard to reviewing an order pursuant to a petition for a writ of mandamus, our supreme court has stated:

“This Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court’s jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala.1997). Because mandamus is an extraordinary remedy, the standard by which this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clearly abused its discretion. See Ex parte Rudolph, 515 So.2d 704, 706 (Ala.1987).”

Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000).

The mother contends that the trial court did not have jurisdiction over the parties’ claims seeking an initial custody determination. The UCCJEA provision governing jurisdiction over initial child-custody determinations states:

“(a) Except as otherwise provided in Section 30-BB-204, a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208; or
“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).
“(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
“(c) Physical presence of a child is not necessary or sufficient to make a child custody determination.”

§ 30-3B-201, Ala.Code 1975 (emphasis added); see also § 14-13-201, Colo.Rev. Stat. (2009).

The term “home state” is defined under the UCCJEA as follows:

“Home State. The state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the ease of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of the child or any of the mentioned persons is part of the period.”

§ 30-3B-102(7), Ala.Code 1975; see also § 14-13-203, Colo.Rev.Stat. (2009) (setting forth an almost identical definition of “home state”).

In this case, the mother initiated her divorce action in Colorado approximately two weeks before the father filed, in the trial court, his complaint seeking a divorce and custody of the child. Therefore, the portion of the UCCJEA pertaining to the existence of simultaneous custody proceedings was also implicated in this case. That section provides, in pertinent part:

“(a) Except as otherwise provided in Section 30-3B-204, a court of this state may not exercise its jurisdiction under this article if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under Section 30-3B-207.
“(b) Except as otherwise provided in Section 30-3B-204, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to Section 30-3B-209. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.”

§ 30-3B-206, Ala.Code 1975.

Under § 30-3B-206, if the Colorado court had jurisdiction to make an initial custody determination pursuant to the UC-CJEA, the Alabama trial court would be required to dismiss the father’s custody claim. Accordingly, to resolve the issue of jurisdiction over the custody dispute, the trial court conducted a telephone conference with the Colorado court and the attorneys for the parties. See § 30-3B-206(b), Ala.Code 1975 (requiring that the courts in which simultaneous custody proceedings are pending communicate to resolve the issue of jurisdiction).

During that telephone conference, the Alabama trial judge and the Colorado judge agreed that the question to be determined was whether the Colorado court had “jurisdiction substantially in conformity” with the provisions of the UCCJEA. See § 30-3B-206(a). The two trial judges agreed that if the Colorado court could claim jurisdiction to enter an initial custody determination under § 14-13-201(l)(a), Colo.Rev.Stat. (2009), the counterpart to § 30-3B-201(a)(1), Ala.Code 1975, the Colorado court would be the proper court to resolve the custody issue by virtue of the mother’s having first filed a complaint seeking a divorce and custody in that court. See § 30-3B-206, Ala.Code 1975.

Although the Colorado judge did not expressly state that he believed that the Colorado court did not have jurisdiction substantially in compliance with the UC-CJEA, he indicated that he could not discern from the Colorado version of the UC-CJEA that, given the facts of this case, the Colorado court had jurisdiction to make an initial child-custody determination. The Colorado judge then stated that he would defer to the Alabama trial court on the issue of which state was the more convenient forum to resolve the parties’ custody dispute. We interpret the comments of the Colorado judge, as well as the entirety of the transcript of the telephone conference, as a determination by the Colorado court that it did not have jurisdiction “substantially in conformity” with the UC-CJEA to allow it to make an initial custody determination based on “home state” jurisdiction.

The mother does not contend that the Colorado court could exercise jurisdiction under a “home state” theory. Thus, she does not contend that Colorado could exercise jurisdiction under § 14-13-201(1)(a), Colo.Rev.Stat. (2009), the counterpart to § 30-3B-201(a)(1). Rather, the mother disputes that the Alabama trial court could properly exercise jurisdiction under the “home state” provision of § 30-3B-201(a)(1), quoted above, to make an initial custody determination in this matter. Thus, the mother contends that the Colorado court has jurisdiction by virtue of § 14 — 13—201(1)(b) or (d), Colo.Rev.Stat. (2009), which mirrors § 30-3B-201(a)(2) and (4), quoted above. In other words, the mother argues that the Colorado court has jurisdiction over the custody dispute by virtue of what she contends is a lack of “home state” jurisdiction in Alabama.

It is undisputed that the child had lived in Alabama from August 2008 through April 2009, or approximately nine months. On April 24, 2009, the mother and the child left Alabama and moved to Colorado. The mother filed her complaint for a divorce in the Colorado court on August 4, 2009, approximately three and a half months after she and the child moved to Colorado. Therefore, it is clear that the child had not lived in either Colorado or Alabama for the entire six months “immediately before the commencement” of either of the parents’ divorce complaints. See § 30-813-102(7), Ala.Code 1975, and § 14-13-203(7), Colo.Rev.Stat. (2009) (specifying that the definition of “home state” in those sections requires that the child have lived in the state with a parent for six months “immediately before the commencement of a child custody proceeding” (emphasis added)). Under the UCCJEA, at the time of the commencement of the parties’ divorce actions and custody claims, neither Alabama nor Colorado constituted the child’s home state as that term is defined under § 30-3B-102(7), Ala.Code 1975, or § 14-13-203(7), Colo.Rev.Stat. (2009).

However, § 30-3B-201(a)(l) provides that an Alabama trial court has jurisdiction to make an initial custody determination if Alabama is the child’s home state or if it “was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent ... continues to live in this state.” The parties do not dispute that Alabama was the child’s home state within the six months before the commencement of the father’s action seeking a divorce and custody, nor do they dispute that the child was absent from Alabama when the father initiated his claim seeking custody of the child.

Rather, in arguing that the trial court had improperly determined it could exercise jurisdiction under § 30-3B-201(a)(l), the mother contends that the father did not “continue[ ] to live” in Alabama. Specifically, the mother maintains that because the father moved, albeit temporarily, to Colorado, he did not “continue[ ] to live” in Alabama so as to vest jurisdiction in the trial court to make an initial custody determination under the UCCJEA. In support of that argument, the mother points out that in its September 23, 2009, “pendente lite” order, the trial court found that the father had moved from Alabama and had changed his residence from Alabama to Colorado. In that September 23, 2009, order, the trial court determined that the father had relocated to Colorado and, as a result, that the father's residency in Alabama for the purposes of initiating a divorce action pursuant to § 30-2-5, Ala. Code 1975, did not resume, or start, until July 30, 2009. The mother argues that the trial court’s finding that the father changed his residence for the purposes of initiating a divorce action also prevents the trial court from exercising jurisdiction over the custody dispute under the part of § 30-8B-201(a)(l) requiring, among other things, that a parent “continue[ ] to live” in Alabama.

In asserting her arguments, the mother advocates an interpretation of the term “continues to live” that would equate it to the terms “residency” or “domicile,” as those terms have been interpreted by the courts in various situations. The specific authority cited by the mother interprets the residency requirements for jurisdiction over a divorce action filed pursuant to § 30-2-5, Ala.Code 1975. See Ex parte Ferguson, 15 So.3d 520 (Ala.Civ.App.2008); and Livermore v. Livermore, 822 So.2d 437 (Ala.Civ.App.2001). However, those authorities demonstrate that if the defending party is a “nonresident,” the party who filed the divorce action is required to be a “bona fide resident” of Alabama in order that an Alabama trial court obtain jurisdiction over the “marital res.” Ex parte Ferguson, 15 So.3d at 521-22; Livermore v. Livermore, 822 So.2d at 442. In both of those cases, the courts stated that for the purposes of § 30-2-5 residency is the same thing as domicile and that domicile requires physical presence in a place and an intent to remain in that place or return to it if one is absent from it. Ex parte Ferguson, 15 So.3d at 522; Livermore v. Livermore, 822 So.2d at 442.

The mother also cites In re Marriage of Barnes, supra, in which the parties, who had lived in Colorado during their marriage, moved to Virginia. After living in Virginia for five weeks, the wife returned to Colorado and filed a complaint seeking a divorce and custody of the parties’ children. The case involved a provision of the former Uniform Child Custody Jurisdiction Act (“UCCJA”) similar to the provision at issue in § 30-3B-201(a)(l), Ala. Code 1975. In that case, the Colorado Court of Appeals treated the phrase “continues to live” under the former UCCJA as equivalent to “residency,” and it held that because the parties had become residents of Virginia the Colorado court lacked jurisdiction over the wife’s custody claim. In re Marriage of Barnes, supra.

The mother contends, and our research verifies, that no Alabama case has construed the phrase “continues to live” in § 30-3B-201(a)(1), Ala.Code 1975. The mother points out that in Stulce v. Stulce, 961 So.2d 173, 175 n. 2 (Ala.Civ.App.2007), this court, in resolving a dispute involving the priority of two simultaneous custody proceedings in separate states, equated the term “continues to live” with “still residing in Alabama.” However, the court did so in dicta in a footnote, and the interpretation of the phrase “continues to live” was not before this court in that case. Accordingly, because in Stulce v. Stulce, supra, the dispute was not over the issue of the child’s home state under the portion of § 30-3b-201(a)(l) at issue in this appeal, we are unwilling, without any further inquiry, to be bound by that authority.

‘Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ ”

Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)).

“When interpreting a statute, this Court must read the statute as a whole because statutory language depends on context; we will presume that the Legislature knew the meaning of the words it used when it enacted the statute. Ex parte Jackson, 614 So.2d 405, 406-07 (Ala.1993). Additionally, when a term is not defined in a statute, the commonly accepted definition of the term should be applied. Republic Steel Corp. v. Horn, 268 Ala. 279, 281, 105 So.2d 446, 447 (1958).”

Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003) (emphasis added).

The mother asks this court to interpret the phrase “continues to live” as not allowing for the father’s temporary move to Colorado; she advocates a construction of the phrase that would equate “continues to live” with the terms “residence” or “domicile,” as those terms are used in determining jurisdiction over a divorce and the marital res under § 30-2-1 et seq., Ala. Code 1975. In determining the requirements for jurisdiction to make an initial custody determination under the UC-CJEA, however, our legislature did not require that parent be a “resident” of this state. It is clear, however, that the legislature was aware of the term “resident,” because that term is used in other parts of the UCCJEA. See § 30-3B-205(a), Ala. Code 1975 (notice must be provided to all persons “entitled to notice under the law of this state as in child custody proceedings between residents of this state”); see also § 30-3B-202(a)(2), Ala.Code 1975 (stating that a court has continuing jurisdiction under the UCCJEA until, among other things, a court determines a child and the child’s parents “do not presently reside” in Aabama); and § 30-3B-203(2), Ala.Code 1975 (a factor in determining whether this court may modify a custody order entered by another state is whether the child and the child’s parents “do not presently reside” in Aabama). We must presume that the legislature knew the definition of the term “resident” as that term is used in determining jurisdiction over a divorce and the marital res. See Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d at 297 (“It is a familiar principle of statutory interpretation that the Legislature, in enacting new legislation, is presumed to know the existing law.”). We conclude that the legislature’s decision not to use the term “resident” in place of “continues to live” in § 30-3B-201(a)(1), Ala.Code 1975, indicates the legislature’s intention that the phrase “continues to live” not be afforded the same interpretation as “resident.” See McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156, 174 (Ala.1996) (“ ‘[Wjhere there is a “material alteration in the language used in the different clauses, it is to be inferred” that the alterations were not inadvertent.’ ”).

In enacting § 30—3B—201(a)(1), the Alabama legislature used the specific phrase “continues to live.” The father’s move to Colorado, while affecting a determination of his residence or domicile for purposes of § 30-2-5, Ala.Code 1975, does not necessarily have the same impact on a determination whether the father “continuefd] to live” in Alabama for the purposes of § 30-3B-201(a)(1), Ala.Code 1975. In this case, the father has lived in Alabama since September 2007, with the exception of approximately one week in which he went to Colorado. Although the father intended to remain in Colorado, he did not do so. Instead, the father returned to Alabama within a week and has remained in Alabama since that time. Although the father’s intent to remain in Colorado is relevant to a determination of his residence or domicile, we are not convinced that, in this case, the intent to move to Colorado was relevant to the determination whether the father “continues to live” in Alabama. “We think it significant that the Legislature chose the word ‘live[ ]’ as opposed to ‘reside[ ]’ or ‘... domieile[ ].’ The test for ‘residence’ or ‘domicile’ typically involves an inquiry into a person’s intent.” Powell v. Stover, 165 S.W.3d 322, 326 (Tex.2005).

It is clear, however, that the family had lived in Alabama from September 2007 until April 2009, and that, with the exception of the week in July 2009 giving rise to this issue, the father has continued to live in Alabama. We cannot say, given the’ specific facts of this case, that the trial court “clearly abused its discretion” in determining that it had jurisdiction pursuant to § 30-3B-201 (a)(1), Ala.Code 1975, over the parties’ custody dispute. Ex parte Flint Constr. Co., 775 So.2d at 808.

Although the mother filed her action seeking a divorce in the Colorado court before the father filed his action in Alabama, we must disagree with the mother’s argument that the Colorado court should be the forum to determine whether Alabama or Colorado is the more convenient or appropriate forum in which to resolve the parties’ custody dispute. As we have already stated, under the facts of this case, the Colorado court could exercise jurisdiction under its counterpart to § 30-3B-201(b) only if Alabama did not have jurisdiction under § 30-3B-201(a)(l), Ala.Code 1975, or if Alabama declined to exercise jurisdiction. § 14—13—201(b), Colo.Rev.Stat. (2009). During the telephone conference, both the trial court and the Colorado court recognized that fact.

Given the specific facts of this case, this court affirms the trial court’s determination that, pursuant to § 30-3B-201 (a)(1), it had jurisdiction to make an initial custody determination. Although it determined it had jurisdiction under § 30-3B-201(a)(1), Ala.Code 1975, the trial court could have declined to exercise jurisdiction over the parties’ custody claims on the basis that Colorado was a more convenient or appropriate forum in which to litigate the custody dispute. See § 30-3B-207(a), Ala.Code 1975.

The trial court, in its October 7, 2009, order, considered the factors set forth in § 30-3B-207 pertaining to the convenience of the respective forums. The trial court concluded:

“This Court does not find that the handling of this case by the Alabama court is any more inconvenient to the [mother] than would be the inconvenience to the [father] if the issues in this case were to be handled in the State of Colorado. As a result, this Court assumes jurisdiction of said issues.”

The mother has not asserted any argument that the trial court erred in reaching that factual determination. Accordingly, any such argument is deemed to have been waived. Ex parte Simpson, 36 So.3d 15, 25 (Ala.2009).

PETITION DENIED.

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

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

I respectfully dissent from the main opinion because I cannot agree that the father “continues to live” in Alabama in accordance with § 30-3B-201(a)(1), Ala.Code 1975, a part of the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), § 30-3B-101 et seq., Ala.Code 1975.

Section 30-3B-201 provides, in pertinent part:

“(a) Except as otherwise provided in Section 30-3B-204, [Ala.Code 1975,] a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.”

Pursuant to the above-quoted language, a court of this state has jurisdiction to make an initial custody determination when Alabama was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent “continues to live” in this state.

In ordinary parlance, the term “continue” means “to maintain without interruption a condition, course, or action” or “to remain in a place or condition.” Merriam-Webster’s Collegiate Dictionary 270 (11th ed.2003). See Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003) (“when a term is not defined in a statute, the commonly accepted definition of the term should be applied”). The word “continues” is derived from the Latin word “continuus” meaning “uninterrupted.” E.A. Andrews, L.L.D., Copious and Critical Latin-English Lexicon 372 (1870). In the context of subsection (a)(1) of § 30-3B-201, the clause “but a parent ... continues to live in this state” relates to the prior phrase “the child is absent from this state.” Smith v. Alabama Medicaid Agency, 461 So.2d 817, 819 (Ala.Civ.App.1984) (“statutory terms are to be -viewed in light of their usual and ordinary meaning with consideration to the purpose and context of the statute where they are found”). In other words, the legislature intended that the continuity of the parent’s living in this state would be measured against the period of the absence of the child from this state. Thus, the wording of subsection (a)(1) suggests that Alabama would retain home-state jurisdiction only when (1) this state was the home state of the child within six months of the commencement of the proceeding, (2) the child is absent from the state on the date of the commencement of the proceeding, and (3) the parent has continuously lived in Alabama from the time of the initial absence of the child from this state to the date of the commencement of the proceeding.

That reading also comports with the general purposes of the UCCJEA, BP Exploration & Oil, Inc. v. Hopkins, 678 So.2d 1052, 1054 (Ala.1996) (“The court is to ascertain and give effect to the legislature’s intent as expressed in the words of the statute.”), which are to:

“(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
“(2) Promote cooperation with the courts of other States to the end that a custody decree is rendered in that State which can best decide the case in the interest of the child;
“(3) Discourage the use of the interstate system for continuing controversies over child custody;
“(4) Deter abductions of children;
“(5) Avoid relitigation of custody decisions of other states in this state;
“(6) Facilitate the enforcement of custody decrees of other states.”

§ 30-3B-101, Ala.Code 1975, Official Comment. By assuring the continuous presence of a parent within the state, § 30-3B-201(a)(1) discourages parents from manipulating jurisdiction or creating jurisdictional questions and conflicts by moving back and forth between states.

In the present case, the trial court determined that the father had left Alabama on July 24, 2009, with the intention of moving permanently to Colorado. After living in Colorado for four days, the father returned to Alabama because of a medical emergency, and he has lived in Alabama ever since. He filed his custody complaint within a month after he returned to live in Alabama. Although I do not perceive any bad faith on the part of the father in returning to live in this state, I cannot agree that his return satisfies the “continues to live” portion of § 30 — 3B—201(a)(1). The father certainly “lives” in Alabama now, and he was undoubtedly living here when he filed his complaint, but the father did not “eontinue[] to live” in this state during the child’s absence, within the contemplation of § 30-3B-201(a)(l).

I believe the majority opinion places too much emphasis on the word “live” and not enough emphasis on the word “continues.” As I understand the majority’s interpretation, so long as a parent lives in this state at the time of the filing of the custody complaint, the parent satisfies the last clause of § 30-3B-201(a)(l), regardless of whether the parent has been living outside the state for some period and has only recently returned to live in this state. Although I do not find any evidence in the record indicating that the father in this case attempted to do so, the majority’s interpretation would allow a parent to leave this state during the child’s absence with the purpose of living elsewhere and then return to living within this state solely to establish jurisdiction. I cannot concur with establishing any precedent that would allow that result; therefore, I respectfully dissent.

      . The materials submitted to this court reveal that in June 2009 the father developed a medical condition that required surgery on one of his eyes. In July 2009, one of the father’s retinas detached, and he returned to Alabama for further treatment of that condition.

      . The trial court noted during the telephone conference that the parties "agreed” that Alabama was the child’s home state. However, given the nature of the parties’ claims, their arguments asserted during the telephone conference, and the trial court’s and the Colorado court’s treatment of the parties’ arguments, we conclude that a better explanation of the parties’ agreement was that Alabama had been the child's home state "within six months before the commencement” of the father’s action in the trial court. See § 30-3B—201(a)(1), Ala.Code 1975, and § 14-13-201(1)(a), Colo.Rev.Stat. (2009).

      . The trial court's specific findings in the September 23, 2009, order read as follows:
      "This Court does find from the evidence, however, that it lacks subject-matter jurisdiction to enter a divorce between the parties based upon the Complaint for Divorce having been filed by the [father], without his satisfying the residency requirement of six months as set forth in § 30-2-5, Code of Alabama (1975). This Court finds from the evidence presented at said hearing that the [father] moved from the State of Alabama on July 24, 2009, with his car packed full of belongings and the parties’ two family cats; arriving in the State of Colorado on July 26, 2009, having rented a room for a month at an extended-stay motel; that he intended to find a more permanent place to live, find a job, go to marriage counseling with his wife in an effort to reconcile the parties’ marriage; and then move into a more permanent residence, such as an apartment, with his wife and child as a family. Even though he was required to leave the State of Colorado on July 30, 2009, because of a medical emergency relating to his eyes, he informed the [mother], when he left that he would be back. His relocation to the State of Colorado resulted in his residency in the State of Alabama, for the purposes of § 30-2-5, Code of Alabama (1975), not starting until July 30, 2009. As a result, he had not been a bona fide resident of the State of Alabama for six months prior to the filing of this case by him. As to the request made by the [father], for this Court to enter a [judgment] divorcing the parties, the Motion to Dismiss Divorce Complaint filed by the [mother] is granted. However, the remaining claims for relief set forth in the Complaint for Divorce filed by the [father] shall remain pending before this Court, until further order.”
      We also note that this court has not been asked to rule on the propriety of the trial court’s determination that it lacked jurisdiction pursuant to § 30-2-5, Ala.Code 1975, over the dissolution of the marriage and the marital res.

      . "Consistent with the holdings in Ex parte Ferguson, supra, and Livermore v. Livermore, supra, Black's Law Dictionary defines the term "reside” as meaning: "[to l]ive, dwell, abide, sojourn, stay, remain, lodge.... To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one’s residence or domicile ....” Black's Law Dictionary 1308 (6th ed.1990).

      . As already indicated, we have confined this opinion to the specific facts of this case. The interpretation of the main opinion set forth in the last paragraph of the dissent is not the holding of the court.

      . The relevant portions of the Colorado UC-CJEA provision read, in pertinent part:

        "(1) Except as otherwise provided in section 14-13-204, a court of this state has jurisdiction to make an initial child-custody determination only if:
      “(a) This state is the home state of the child on the date of the commencement of the proceeding, or was tire home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
      “(b) A court of another state does not have jurisdiction under a provision of law adopted by that state that is in substantial conformity with paragraph (a) of this subsection (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under a provision of law adopted by that state that is in substantial conformity with section 14-13-207 or 14-13-208, and:
      "(I) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
      "(II) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.”
      § 14-13-201(1), Colo.Rev.Stat. (2009).


source: Caselaw Access Project

author: BRYAN, Judge. THOMPSON, P.J.,

license: Public Domain

text:
    Joe F. GARRIE v. SUMMIT TREESTANDS, LLC.
    2080164.
    Court of Civil Appeals of Alabama.
    April 30, 2010.

      Thomas P. Willingham and Mary Leah Miller of Alvis & Willingham, LLP, Birmingham, for appellant.
    James R. Shaw, Chris S. Rodgers, Jacob W. Crawford, and Lauren E. Davis of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellee.
   On Application for Rehearing

BRYAN, Judge.

This court’s opinion of August 21, 2009, is withdrawn, and the following is substituted therefor.

The plaintiff, Joe F. Garrie, appeals from a summary judgment entered in favor of the defendant, Summit Treestands, LLC (“Summit”), in this action seeking damages for injuries sustained when Gar-rie fell from a tree stand manufactured by Summit.

Facts

On January 31, 2003, Garrie was hunting in a 1998 model “Viper” tree stand manufactured by Summit. Game’s son had purchased the tree stand for Garrie at a store owned by Wiley Outdoor Sports, Inc. The tree stand is a two-part “climbing” tree stand, ie., the hunter uses the tree stand to climb the tree from which he hunts. The top half of the tree stand appears to consist of the seat used by the hunter; the bottom half is the platform on which the hunter’s feet rest. The top half and the bottom half of the tree stand are connected by a rope or tether. The tree stand appears to be of the type in which each half of the tree stand attaches to the tree by use of an adjustable part that wraps around the tree. The adjustable part is secured around the tree in such a manner as to allow enough room to maneuver the tree stand up and down the tree while climbing. When the hunter climbs the tree, the platform of the tree stand attaches by straps to the hunter’s boots. The straps have rubber bands that fit around the hunter’s heels. With the hunter’s feet secured to the platform, the hunter climbs up or down the tree by lifting the platform with his feet a short distance either up or down, then applying pressure by pressing down, thus securing the platform to the tree. The top half of the tree stand is operated in a similar fashion.

Game’s tree stand was equipped with a safety belt designed to prevent falls. On one end, the safety belt fits around the hunter’s body somewhere under the hunter’s shoulders. The other end of the safety belt attaches to the tree. On the day he fell, Garrie was not using the safety belt. Garrie testified that he used the safety belt for two hunting seasons when he first starting using the tree stand. Garrie stated that he stopped using the safety belt because he had heard stories about hunters “getting smothered to death and hung with [the safety belts].” Garrie also testified that he did not believe the safety belt was designed to be used while climbing up or down the tree with the tree stand.

Garrie testified that, after hunting in his tree stand during the afternoon of January 31, 2003, he began to climb down the tree using the tree stand. Garrie testified that he had climbed down the tree four or five feet when one of his feet became disengaged from the foot strap on the platform. Garrie stated that the tree stand consequently “dropped down on the side.” Gar-rie testified that, while attempting to get his foot back into the foot strap, he slipped and fell to the ground. The fall broke Game’s back and rendered him paraplegic. Garrie was subsequently treated at DCH Regional Medical Center (“DCH”). The medical records of Game’s treatment at DCH indicate that he had stated that “he became ill and had a syncopal episode while hunting” on the day he fell.

Procedural History

On December 29, 2004, Garrie sued Summit and Wiley Outdoor Sports, Inc. (“Wiley Outdoor”), alleging (1) claims under the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”) for the manufacture and sale of a defective and unreasonably dangerous tree stand, (2) negligence, (3) wantonness, (4) negligent failure to warn, (5) wanton failure to warn, (6) breach of express warranty, and (7) breach of implied warranty of merchantability. Summit and Wiley Outdoor each filed a motion for. a summary judgment. In Summit’s summary-judgment motion, Summit asserted (1) “that [Garrie] failed to present substantial evidence of a design or manufacturing defect in the tree stand as is required in order to establish a claim under the AEMLD”; (2) “[that Garrie did] not offer substantial evidence of a safer, practical, alternative design as required under the AEMLD”; (3) “[that Garrie] failed to present any expert testimony to support the allegations contained in his complaint”; (4) “[that Summit was] entitled to a judgment as a matter of law as a result of [Game’s] contributory negligence”; and (5) that Game’s negligence and wantonness claims were subsumed by his AEMLD claim. Summit supported its summary-judgment motion with various evidentiary materials, including expert testimony indicating that the tree stand is not defective or unreasonably dangerous. Garrie filed a response to Summit’s summary-judgment motion, which was supported by various evidentiary materials, including expert testimony indicating that the tree stand is defective and unreasonably dangerous.

The trial court entered a summary judgment in favor of Wiley Outdoor, and the trial court certified that judgment as final, pursuant to Rule 54(b), Ala. R. Civ. P. Garrie did not appeal from that judgment. The trial court subsequently entered a summary judgment in Summit’s favor. Garrie filed a postjudgment motion, which was denied by operation of law. Garrie filed a timely appeal to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review
“In reviewing the disposition of a motion for summary judgment, ‘we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

Discussion

On appeal, Garrie makes several arguments. We first address Game’s argument that his negligence and wantonness claims were not subsumed by his AEMLD claim. That is, we must determine whether the negligence, wantonness, and AEMLD claims should be evaluated as separate claims or whether they should be evaluated as a single claim under the AEMLD. As noted, Summit asserted in its summary-judgment motion that Gar-rie’s negligence and wantonness claims were subsumed by his AEMLD claim. In arguing that the negligence and wantonness claims were subsumed by the AEMLD claim, Summit cites Veal v. Teleflex, Inc., 586 So.2d 188 (Ala.1991), and federal cases. However, in Vesta Fire Insurance Corp. v. Milam & Co. Construction, 901 So.2d 84 (Ala.2004), our supreme court addressed Veal and explained that negligence and wantonness claims are not subsumed by an AEMLD claim. The supreme court stated:

“With respect to the trial court’s determination that the plaintiffs’ negligence and breach-of-warranty claims were subsumed by their AEMLD claims, the trial court’s determination might have been supportable under Veal v. Teleflex, Inc., 586 So.2d 188 (Ala.1991), a case that discussed circumstances under which the strict-liability doctrine of the AEMLD might be viewed as imputing negligence to a defendant as a matter of law.
“More recently, however, and after the entry of the summary judgment for [the defendant], this Court specifically addressed the question whether a negligence claim is subsumed in a AEMLD claim in Tillman v. R.J. Reynolds Tobacco Co., 871 So.2d 28, 34-35 (Ala.2003):
“ ‘It must be remembered, however, that the AEMLD, as established in Casrell [v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976),] and Atkins [v. American Motors Corp., 335 So.2d 134 (Ala.1976) ], is “an example of judicial legislation,” not of legislative enactment. Keck v. Dryvit Sys., Inc., 830 So.2d 1, 8 (Ala.2002). This Court warned last year in Keck that “[j]udi-cial decision-making should not be seen as the opportunity to legislate.” 830 So.2d at 8. Aabama remains a common-law state, and therefore common-law tort actions “so far as [they are] not inconsistent with the Constitution, laws and institutions of this state ... shall continue in force, except as from time to time ... may be altered or repealed by the Legislature.” § 1-3-1, Ala.Code 1975. We will not presume to so define the boundaries of the judicially created AEMLD so that it subsumes the common-law tort actions of negligence and wantonness against the retailer defendants.’

Vesta Fire Ins., 901 So.2d at 101-02. Therefore, Game’s negligence and wantonness claims were not subsumed by his AEMLD claim.

We next address Game’s arguments concerning his claim under the AEMLD.

“The elements of an AEMLD claim are as follows:
“ ‘ “ ‘To establish liability, a plaintiff must show:
“ ‘ “ ‘(1) he suffered injury or damaged to himself or his property by one who sells a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer, if
“ ‘ “ ‘(a) the seller is engaged in the business of selling such a product, and
“ ‘ “ ‘(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it [was] sold.’ ”
‘Yamaha Motor Co. v. Thornton, 579 So.2d 619, 621 (Ala.1991) (quoting Casrell v. Altec Indus., Inc., 335 So.2d 128, 132-33 (Ala.1976)).’ ”

Tanksley v. ProSoft Automation, Inc., 982 So.2d 1046, 1049-50 (Ala.2007) (quoting Kirk v. Garrett Ford Tractor, Inc., 650 So.2d 865, 866 (Ala.1994)).

“In an AEMLD action, ‘the plaintiff must affirmatively show that the product was sold with a defect or in a defective condition.’ Jordan v. General Motors Corp., 581 So.2d 835, 836-37 (Ala.1991). Without evidence to support the conclusion that the product was defective and/or unreasonably dangerous when it left the hands of the seller, the burden is not sustained.’ Jordan, 581 So.2d at 837. ‘Proof of an accident and injury is not in itself sufficient to establish liability under the AEMLD; a defect in the product must be affirmatively shown.’ Townsend v. General Motors Corp., 642 So.2d 411, 415 (Ala.1994).”

Tanksley, 982 So.2d at 1051.

Garrie supported his response to Summit’s summary-judgment motion with, among other things, the affidavit of Roger E. Davis, a professional engineer. Davis testified that the tree stand is defective and unreasonably dangerous in two respects: (1) it is not equipped with a body harness, but instead is equipped only with a safety belt; and (2) the foot straps of the tree stand are not designed to adequately prevent the platform of the tree stand from dislodging from the hunter’s feet. Davis testified:

“The climbing tree stand involved in Mr. Game’s injury was manufactured ... with a body belt. A body belt is generally considered a body positioning and fall restraint device, rather than a fall protection device. Body harnesses are generally considered fall protection devices. Body harnesses were in common use at the time the subject tree climbing stand was manufactured and sold.
“... It is my opinion that the user of a Viper tree stand is not adequately protected from a fall when using the body belt provided. The manufacturer should have equipped the tree stand with a body harness, at minimum, and its failure to do so renders this product defective and unreasonably dangerous.
“... It is my opinion that the design of the means of attachment for the [platform] portion of the tree stand is not adequate to reliably prevent the [platform] from dislodging, causing the [platform] to fall to the end of its tether. When the user attempts to retrieve and reposition the [platform] after it dislodges, he assumes an unbalanced position which may lead to a fall of the user. A redesign of the means of attachment of the [platform] would more likely than not have prevented this accident.
“... It is my opinion that the subject Viper Tree Stand was in a defective condition, unreasonably dangerous, because of its design, including those defects outlined above and its failure to incorporate reasonably safe alternative designs as outlined above.
“... My opinion, which is based upon a reasonable degree of engineering certainty, is that the defective design of the subject Viper tree stand was the proximate cause of Mr. Game’s accident, and that this accident could have been prevented by incorporating the alternative designs as set forth above.”

Our supreme court has stated:

“In order to prove that a product is defective for purposes of the AEMLD, a plaintiff must prove that
“ ‘ “a safer, practical, alternative design was available to the manufacturer at the time it manufactured the [product]. The existence of a safer, practical, alternative design must be proved by showing that:
“ ‘ “(a) The plaintiffs injuries would have been eliminated or in some way reduced by use of the alternative design; and that
“ ‘ “(b) taking into consideration such factors as the intended use of the [product], its styling, cost, and desirability, its safety aspects, the foreseeability of the particular accident, the likelihood of injury, and the probable seriousness of the injury if that accident occurred, the obviousness of the defect, and the manufacturer’s ability to eliminate the defect, the utility of the alternative design outweighed the utility of the design actually used.” ’
“Beech v. Outboard Marine Corp., 584 So.2d 447, 450 (Ala.1991) ..., quoting General Motors Corp. v. Edwards, 482 So.2d 1176, 1191 (Ala.1985), overruled on other grounds, Schwartz v. Volvo North America Corp., 554 So.2d 927 (Ala.1989).”

Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839, 858 (Ala.2002) (emphasis omitted).

In this case, regarding the alleged defectiveness of the foot straps of the tree stand, Davis testified that a “redesign” would have likely prevented Game’s fall, but he provided no detail or explanation about a safer, practical, alternative design. Regarding both the allegations that Summit should have equipped the tree stand with. a body harness and that the foot straps were defective, Garrie presented no evidence indicating that the utility of any specific alternative designs outweighed the utility of the designs actually used. Accordingly, as Summit argued in its summary-judgment motion, Garrie did not offer substantial evidence of a safer, practical, alternative design as required under the AEMLD. See id. Therefore, the trial court did not err in entering a summary judgment in favor of Summit as to Game’s AEMLD claim. See Yarbrough v. Sears, Roebuck & Co., 628 So.2d 478, 482 (Ala.1993) (affirming a summary judgment in favor of the defendants on an AEMLD claim when the plaintiff failed to present substantial evidence of a safer, practical, alternative design).

We next address the summary judgment entered on Game’s negligence claims. As noted, Summit asserted in its summary-judgment motion that Game’s negligence claims are barred because, Summit said, Garrie was contributorily negligent as a matter of law. Garrie argues that Summit did not establish that he was contributorily negligent as a matter of law.

“ ‘Contributory negligence is an affirmative and complete defense to a claim based on negligence. In order to establish contributory negligence, the defendant bears the burden of proving that the plaintiff 1) had knowledge of the dangerous condition; 2) had an appreciation of the danger under the surrounding circumstances; and 3) failed to exercise reasonable care, by placing himself in the way of danger. See Knight v. Alabama Power Co., 580 So.2d 576 (Ala.1991).’ ”

Serio v. Merrell, Inc., 941 So.2d 960, 964 (Ala.2006) (quoting Ridgeway v. CSX Transp., Inc., 723 So.2d 600, 606 (Ala.1998)).

“A plaintiff cannot recover in a negligence action where the plaintiffs own negligence is shown to have proximately contributed to his damage, notwithstanding a showing of negligence on the part of the defendant. Likewise, a plaintiffs contributory negligence will preclude recovery in an AEMLD action. The question of contributory negligence is normally one for the jury. However, where the facts are such that all reasonable persons must reach the same conclusion, contributory negligence may be found as a matter of law.
“To establish contributory negligence as a matter of law, a defendant seeking a summary judgment must show that the plaintiff put himself in danger’s way and that the plaintiff had a conscious appreciation of the danger at the moment the incident occurred. The proof required for establishing contributory negligence as a matter of law should be distinguished from an instruction given to a jury when determining whether a plaintiff has been guilty of contributory negligence. A jury determining whether a plaintiff has been guilty of contributory negligence must decide only whether the plaintiff failed to exercise reasonable care. We protect against the inappropriate use of a summary judgment to establish contributory negligence as a matter of law by requiring the defendant on such a motion to establish by undisputed evidence a plaintiffs conscious appreciation of danger.”

Hannah, 840 So.2d at 860-61 (citations omitted).

Summit contends that Garrie was contributorily negligent by failing to wear the safety belt as he climbed down the tree from which he fell. Garrie contends that he was not contributorily negligent because, he says, he did not consciously appreciate the danger posed by climbing down the tree without using the safety belt. In his deposition, Garrie testified:

“Q. [By counsel for Summit:] What did you understand [the safety belt] to be for?
“A. It was a safety device.
“Q. In case you fell, to keep you from falling to the ground?
“A. Yeah.
“Q. And it came with your stand?
“A. [Yes].
“Q. You understood that [the safety belt] was intended for your safety?
“A. Yeah.
“Q. Did you understand that you should use it when you’re climbing the tree?
“A. Well, you couldn’t use it climbing the tree. You couldn’t use it climbing, period. It wasn’t designed for that.
“Q. And did you [use the safety belt during the first two hunting seasons that you had the tree stand]?
“A. Yeah, I used it....
“Q. Until you decided to stop using it?
“A. Yeah. People [were] getting smothered to death and hung with [the safety belts].
“Q. Do you know of anyone who was injured using a [safety belt]?
“A. Not personally. But, you know, news and people talking.... [W]e thought it was safer without it.
“Q. If you had had your fall protection around your chest and tied to the tree, would you have fallen to the ground?
“A. No. But I [would have] been hanging under the stand.
“Q. Well, we don’t know that, do we?
“A. That was my theory, anyway.
“Q. You wouldn’t have fallen, would you?
“A. I would[n’t] have had it tied off because you can’t tie it off the tree. If I had had it on, it wouldn’t have been tied coming down.”

Game’s testimony indicates that he believed that he could not use the safety belt as he climbed up or down a tree with the tree stand. That is, Game’s subjective belief was that the safety belt was not capable of being used while climbing. Game’s testimony suggests that he believed that the safety belt could be used only when a hunter was stationary in the tree stand and that using the safety belt while climbing was not a viable safety option. Viewing the evidence in the light most favorable to Garrie, the nonmovant, see Hobson, 690 So.2d at 344, we cannot say that the evidence established that Gar-rie consciously appreciated the danger involved by not wearing his safety belt while climbing with the tree stand.

Summit argues that Garrie was contrib-utorily negligent based on our supreme court’s decision in Burleson v. RSR Group Florida, Inc., 981 So.2d 1109 (Ala.2007). In Burleson, the plaintiffs, the coadminis-trators of Burleson’s estate, sued various defendants, alleging that the defendants had designed and manufactured a revolver that proximately caused the death of Burleson. Burleson owned the revolver, which could not be discharged when the manual safety was engaged. One day, as Burleson hung the revolver in its holster on a gun rack, the revolver fell from the holster, struck a desk, and discharged. The discharged round struck Burleson, and he died as a result of the wound. The defendants moved for a summary judgment on the grounds that Burleson had assumed the risk and was contributorily negligent, and the trial court entered a summary judgment in the defendants’ favor.

On appeal, the plaintiffs in Burleson argued that the revolver was defective because, they said, “it was designed without an internal passive safety device that would have prevented it from discharging when it fell and struck the desk, regardless of whether the manual safety was engaged.” 981 So.2d at 1112. However, our supreme court concluded that Burle-son’s contributory negligence barred recovery. The supreme court stated:

“ ‘Direct evidence of such an appreciation of danger is not required if the evidence admits of no conclusion except that the plaintiff must have appreciated the hazard involved. It is enough if the plaintiff understood, or should have understood, the danger posed. Ridgeway [v. CSX Transp., Inc., 723 So.2d 600, 606 (Ala.1998)].
“Serio [v. Merrell, Inc.], 941 So.2d [960,] 965 (Ala.2006).
“... [T]he danger of handling a fee-arm with a live cartridge chambered in line with the hammer and the firing pin without having first engaged the manual safety is self-evident, especially to an experienced and safety-conscious gun owner like [Burleson], so that reasonable people would have to logically conclude that he should have at least appreciated the danger associated with doing so.”

Burleson, 981 So.2d at 1113-14.

Based on the evidence submitted in this case, we cannot conclude that the danger involved in Game’s failing to wear a safety belt while descending the tree is a self-evident danger of which he should have been aware. In Burleson, it was undisputed that Burleson’s revolver would not have accidentally discharged had the manual safety been engaged. In this case, Davis, Game’s expert witness, testified that a hunter “is not adequately protected from a fall when using the [safety] belt.” Moreover, based on Game’s testimony, there appears to be a question regarding whether the safety belt could even be used while climbing up or down the tree. Therefore, in this case, unlike the situation in Burle-son, there is a factual question regarding whether using the safety belt would have adequately protected the user from falling. Based on the evidence in the record before us, we conclude that Game’s failure to wear the provided safety belt is not the sort of self-evident danger, like the one in Burleson, that would make him contribu-torily negligent as a matter of law for not wearing the safety belt. Accordingly, because Garrie did not consciously appreciate the danger posed by not wearing the safety belt, see Hannah, 840 So.2d at 860-61, and because that danger was not the type of self-evident danger of which he should have been aware, see Burleson, 981 So.2d at 1113-14, we cannot say that Garrie was contributorily negligent as a matter of law.

On application for rehearing, Summit argues that the evidence submitted by Garrie was insufficient to establish essential elements of his negligence claims. Therefore, on that basis, Summit argues that this court should affirm the trial court’s summary judgment entered in Summit’s favor on Game’s negligence claims. However, with respect to the negligence claims, Summit moved for a summary judgment on only two grounds: that the negligence claims were subsumed by the AEMLD claim and that Garrie was contributorily negligent. Typically,

“[an appellate court] will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court. Ex parte Ryals, 773 So.2d 1011 (Ala.2000), citing Ex parte Wiginton, 743 So.2d 1071 (Ala.1999), and Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). This rule fails in application only where due-process constraints require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance, such as when a totally omitted affirmative defense might, if available for consideration, suffice to affirm a judgment, Ameriquest Mortgage Co. v. Bentley, 851 So.2d 458 (Ala.2002), or where a summary-judgment movant has not asserted before the trial court a failure of the nonmovant’s evidence on an element of a claim or defense and therefore has not shifted the burden of producing substantial evidence in support of that element, Rector v. Better Houses, Inc., 820 So.2d 75, 80 (Ala.2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and Kennedy v. Western Sizzlin Corp., 857 So.2d 71 (Ala.2003)).”

Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found. P.C., 881 So.2d 1013, 1020 (Ala.2003) (emphasis added).

Because Summit did not move for a summary judgment on the ground that Game’s evidence was insufficient to establish essential elements of his negligence claims, the burden did not shift to Game to offer substantial evidence in support of those elements. Therefore, we cannot affirm the trial court’s summary judgment on the negligence claims on the ground that Game’s evidence was insufficient to establish essential elements of those claims. Liberty Nat’l, supra; see, e.g., Wilson v. C-Sharpe Co., 37 So.3d 797, 804 (Ala.Civ.App.2009). Because Game’s negligence claims were not subsumed by his AEMLD claim and because Summit was not entitled to a summary judgment on the negligence claims on the ground of contributorily negligence, we must conclude that the trial court erred in entering a summary judgment with respect to the negligence claims.

We next address Game’s wantonness claims. Our supreme court has defined “wantonness” “ ‘as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result.’ ” Bozeman v. Central Bank of the South, 646 So.2d 601, 603 (Ala.1994) (quoting Stone v. Southland Nat’l Ins. Corp., 589 So.2d 1289, 1292 (Ala.1991)). In arguing that the trial court erred by entering summary judgment on the wantonness claims, Garrie does not identify any allegation of conduct by Summit that would represent a wanton act or omission. Accordingly, he has not established that the trial court erred in entering summary judgment as to the wantonness claims. See Serio v. Merrell, Inc., 941 So.2d at 966.

Garrie also argues that the trial court erred in entering a summary judgment on his claim alleging breach of implied warranty of merchantability because, Garrie says, Summit did not move for a summary judgment on that claim. Initially, we note that Summit moved for a summary judgment on “all claims.” However, Summit did not appear to assert specific grounds for a summary judgment with respect to the breach-of-implied-warranty claim. Assuming, as Garrie argues, that Summit did not properly move for a summary judgment on the claim alleging breach of implied warranty, the propriety of the trial court’s entry of a summary judgment on that claim was not properly preserved for our review. Garrie did not object to the entry of a summary judgment as to the breach-of-implied-warranty claim in a postjudgment motion. Accordingly, this case is analogous to Employees of the Montgomery County Sheriffs Department v. Marshall, 893 So.2d 326 (Ala.2004).

In Marshall, the plaintiffs sued Sheriff D.T. Marshall in both his official and individual capacities. Sheriff Marshall moved for a summary judgment in his official capacity only. However, the trial court entered a summary judgment in favor of Sheriff Marshall in both his official capacity and his individual capacity. The plaintiffs then appealed to the supreme court. With respect to the summary judgment in favor of Sheriff Marshall in his individual capacity, the supreme court stated:

“Since the sheriffs motion did not challenge the plaintiffs’ claims against the sheriff in his individual capacity, the motion did not meet the initial burden of the sheriff in his individual capacity, that is, ‘“the burden of production, i.e., the burden of making a prima facie showing that he is entitled to summary judgment.” ’ Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)). However, the record before us does not reveal whether the plaintiffs objected to the trial court in a timely postjudgment Rule 59(e), Ala. R. Civ. P., motion that the trial court erred in failing to limit the summary judgment to the claims against the sheriff in his official capacity, see Hatch v. Health-Mor, Inc., 686 So.2d 1132, 1132 (Ala.1996) (‘[I]t was error for the trial court to enter a summary judgment as to all of [the plaintiffs] claims, because one claim ... was not before the trial court on the summary judgment motion’), and Henson v. Mobile Infirmary Ass’n, 646 So.2d 559, 562 (Ala.1994) (‘[W]e observe at the outset that the trial court could not properly enter the summary judgment as to all of [the plaintiffs] claims. Counts one and two ... were not before the trial court on the- [defendant’s] motion’). Such a Rule 59(e) motion would have been necessary to presene such an objection for an appeal ‘because this issue [did] not involve a question of law that ha[d] been the subject of a previous objection and ruling. ’ McKenzie v. Killian, 887 So.2d 861, 865 (Ala.2004).”

893 So.2d at 330-31 (final emphasis added). Accordingly, in this case, because Garrie did not object to the entry of the summary judgment on the claim alleging breach of implied warranty by a timely post-judgment motion, he did not preserve the issue of the propriety of that ruling for our review.

We reverse the trial court’s summary judgment with respect to Game’s negligence claims, and we remand the case. Regarding all other claims, we affirm the summary judgment entered in favor of Summit.

APPLICATION FOR REHEARING GRANTED; OPINION OF AUGUST 21, 2009, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN and THOMAS, JJ., concur.

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

THOMPSON, P.J.,

concurs to grant the application for rehearing but dissents as to the opinion, without writing.

      . The record on appeal does not contain a visual depiction of the tree stand.

      “6 After Veal, a number of cases held that negligence and wantonness claims were subsumed by an AEMLD claim. See, e.g., Brock v. Baxter Healthcare Corp., 96 F.Supp.2d 1352 (S.D.Ala.2000), and Johnson v. General Motors Corp., 82 F.Supp.2d 1326 (S.D.Ala.1997). However, a number of other cases either recognized that the issue had not been finally decided, see Grimes v. General Motors Corp., 205 F.Supp.2d 1292 (M.D.Ala.2002), or permitted negligence and AEMLD claims to coexist under certain circumstances. See, e.g., Flagstar Enters., Inc. v. Davis, 709 So.2d 1132 (Ala.1997).”

      . The record contains no document containing directions for using the tree stand, directions which may have clearly indicated how the safety belt was intended to be used.

      . Game does not argue that the trial court erred in entering a summary judgment on his claim alleging breach of express warranty.


author: MOORE, Judge.

text:
    James ROBERSON and Penhall Company, Inc. v. C.P. ALLEN CONSTRUCTION COMPANY, INC., d/b/a ABC Cutting Contractors.
    2080537.
    Court of Civil Appeals of Alabama.
    May 7, 2010.

      Robert W. Shores, Fultondale, for appellants.
    Jonathan E. Raulston and John R. Bowles of Engel, Hairston & Johanson, P.C., Birmingham, for appellee.
   On Application for Rehearing

MOORE, Judge.

This court’s opinion of January 29, 2010, is withdrawn, and the following is substituted therefor.

James Roberson and Penhall Company, Inc., appeal from a judgment awarding C.P. Allen Construction Company, Inc., d/b/a ABC Cutting Contractors (“ABC”), $50,000 — $25,000 in “nominal” damages based on Roberson’s breach of a noncom-pete agreement and $25,000 in damages for Penhall’s tortious interference with that agreement.

ABC, a concrete-cutting company, hired Roberson on August 14, 1995, and soon thereafter began training him as a dispatcher and salesman. On September 11, 1995, Roberson signed an employment contract that contained the following clause:

“I acknowledge that by virtue of my employment I will acquire information concerning [ABC’s] operations, suppliers, and customers, and that such information constitutes valuable and confidential information. I agree that for a period of two years from the date of termination of my employment with [ABC], I shall not directly or indirectly contact, sell and/or service any [of ABC’s] customers, potential customers or customers solicited by [ABC] that I did in fact contact, sell, solicit and/or service during my employment with [ABC] which are located in the State of Alabama and south of the northernmost point of Cullman, Alabama and north of the southernmost point of Clanton, Alabama.”

In the almost 9 years following his signing that agreement, Roberson became ABC’s primary salesman for at least 36 ABC customers that were located in the territory outlined in the agreement (hereinafter referred to as “the covered territory”).

On August 2, 2004, ABC terminated Roberson’s employment. Thereafter, Roberson contacted Penhall, one of ABC’s two chief competitors in the Birmingham concrete-cutting market, about obtaining a sales position. With full knowledge of the noncompete agreement Roberson had signed, Penhall hired Roberson, and he started working for Penhall on January 3, 2005. Thereafter, Roberson, on behalf of Penhall, contacted some of his former ABC clients in the covered territory and completed sales to those clients amounting to approximately $4,000. ABC issued a letter to Roberson requesting that he cease and desist from further soliciting business from its clients.

On February 24, 2005, ABC filed a two-count complaint against Roberson seeking an injunction and damages on account of his alleged violation of the noncompete agreement and seeking damages for Roberson’s alleged conversion of company property. ABC also applied for a temporary restraining order on March 17, 2005, and for a preliminary injunction on April 4, 2005. Following hearings on April 7 and 8, 2005, the trial court denied ABC’s requests for a temporary restraining order and for a preliminary injunction on April 20, 2005. ABC subsequently amended its complaint to add a claim against Roberson for allegedly violating the Alabama Trade Secrets Act, Ala. Code 1975, § 8-27-1 et seq., adding Penhall as a defendant, and asserting that Penhall tortiously interfered with ABC’s noncompete agreement with Roberson.

The case proceeded to trial on June 30, 2008. On October 3, 2008, the trial court entered a judgment awarding ABC $25,000 in “nominal” damages on its breaqh-of-contract claim against Roberson and $25,000 in damages on its intentional-interference-with-contractual-relations claim against Penhall. Following the denial of their postjudgment motion, Roberson and Penhall appealed to this court; this court remanded the case to the trial court for it to adjudicate the conversion and trade-secrets claims. At the request of ABC, the trial court dismissed those claims with prejudice, rendering the October 3, 2008, judgment final. See N.H. v. T.A.P., 963 So.2d 97, 99 (Ala.Civ.App.2007) (“A final judgment is one that ‘ “disposes of all claims or the rights and liabilities of all parties.” ’ ” (quoting Wright v. Wright, 882 So.2d 361, 363 (Ala.Civ.App.2003), quoting in turn Carlisle v. Carlisle, 768 So.2d 976, 977 (Ala.Civ.App.2000))); see also Faulk v. Berry, 984 So.2d 426, 427 (Ala.Civ.App.2007). The appeal then ripened for this court’s consideration. See Baugus v. City of Florence, 968 So.2d 529, 533 (Ala.2007).

On appeal, Roberson and Penhall argue that the trial court erred in finding the noncompete agreement to be enforceable, erred in awarding damages that were unsupported by the evidence and based on speculation or conjecture, and erred in awarding nominal damages of $25,000 for breach of the noncompete agreement.

We first address Roberson and Penhall’s contention that the trial court erred in impliedly finding that Roberson and ABC had entered into an enforceable noncompete agreement. It is the public policy of Alabama that contracts restraining employment are disfavored. Booth v. WPMI Television Co., 533 So.2d 209, 210 (Ala.1988) (citing DeVoe v. Cheatham, 413 So.2d 1141 (Ala.1982)). Pursuant to § 8-l-l(a), Ala.Code 1975, most agreements restraining employment are void. “Nevertheless, Alabama courts will enforce a non-compete agreement if it (1) falls within a statutory exception to the general prohibition, and (2) is reasonably limited as to territory, duration and subject matter.” Nationwide Mut. Ins. Co. v. Cornutt, 907 F.2d 1085, 1087 (11th Cir.1990) (citing Michael L. Edwards, Covenants Not to Compete in Alabama, 44 Ala. Law. 306 (1983)) (footnotes omitted).

Section 8-l-l(b), Ala.Code 1975, provides the statutory exception to the general rule by stating:

“[Ojne who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city, or part thereof so long as the ... employer carries on a like business therein.”

A noncompete or nonsolicitation agreement between an employee and his or her employer is enforceable as a reasonable restraint of trade pursuant to § 8-1-1 (b) if:

“(1) the employer has a protectable interest;
“(2) the restriction is reasonably related to that interest;
“(3) the restriction is reasonable in time and place; [and]
“(4) the restriction imposes no undue hardship.”

DeVoe v. Cheatham, 413 So.2d at 1142; see also James S. Kemper & Co. v. Cox & Assocs., 434 So.2d 1380, 1384 (Ala.1983).

In their brief to this court, Roberson and Penhall argue only that ABC did not have a protectable interest that would sustain its right to enforce the non-compete agreement. In order to have a protectable interest, the employer must possess “a substantial right in its business sufficiently unique to warrant the type of protection contemplated by [a] non-competition agreement.” Cullman Broad. Co. v. Bosley, 373 So.2d 830, 836 (Ala.1979); accord Calhoun v. Brendle, Inc., 502 So.2d 689, 691 (Ala.1986), and Greenlee v. Tuscaloosa Office Prods. & Supply, Inc., 474 So.2d 669, 671 (Ala.1985). In assessing the sufficiency of the interest at stake to determine whether it warrants protection, the supreme court, in DeVoe, supra, relied on Restatement (Second) of Contracts § 188, Comment B (1979), which explained that contracts regarding post-employment restraint are usually justified

“ ‘on the ground that the employer has a legitimate interest in restraining the employee from appropriating valuable trade information and customer relationships to which he has had access in the course of his employment. Arguably the employer does not get the full value of the employment contract if he cannot confidently give the employee access to confidential information needed for most efficient performance of his job.’ ”

DeVoe, 413 So.2d at 1142-43. By that reasoning, an employer has a protectable interest sufficient to justify enforcement of a noncompete agreement “[i]f an employee [was] in a position to gain confidential information, access to secret lists, or to develop a close relationship with clients.” 413 So.2d at 1143. “A protectable interest can also arise from the employer’s investment in its employee, in terms of time, resources and responsibility.” Nationwide, 907 F.2d at 1087-88.

Roberson and Penhall argue that in his role as a salesman for ABC Roberson did not have access to confidential customer lists. The evidence shows that ABC, Pen-hall, and one other major concrete-cutting company basically split the concrete-cutting market in the covered territory during Roberson’s tenure at ABC. Those three companies solicited work from construction companies in the covered territory that performed projects requiring concrete cutting. ABC identified potential customers by using sources containing public information readily available to its competitors, such as the Yellow Pages, the Internet, and a trade publication known as the “Dodge Report.” ABC also sent its salesmen on the road to look for construction projects in progress from which to solicit business. The record contains no evidence indicating that ABC took any steps to treat its customer list in a confidential manner. Hence, Roberson and Penhall maintain that under Calhoun v. Brendle, Inc., supra, ABC did not have a protecta-ble interest that would warrant enforcement of the noncompete agreement.

Calhoun does hold that an employer does not possess a protectable interest in a customer list that it has not treated confidentially. However, Calhoun hardly stands for the proposition that an employer who deals with publicly identifiable customers may never enforce a noncompete agreement. An employer certainly may have a protectable interest other than an interest in protecting the identity of its customers.

In this case, the undisputed evidence shows that ABC trained and developed Roberson as a salesman in the concrete-cutting industry. Before coming to work for ABC, Roberson had worked for his grandfather in the plumbing business and he knew that the concrete-cutting industry existed; however, he knew nothing about that business. Through his employment at ABC, he learned the trade and became a very good salesman. Once in that position, ABC provided Roberson with the means to entertain client contacts and to develop relationships with ABC’s customers. The record clearly indicates that those relationships are important to stimulating business within the concrete-cutting industry and that Roberson therefore served in a vital capacity for ABC for almost nine years.

In Ormco Corp. v. Johns, 869 So.2d 1109 (Ala.2003), the supreme court recognized that employers have an “important” interest in protecting and preserving customer relationships built and maintained by their sales representatives. In Booth v. WPMI Television Co., supra, the supreme court held that a radio station possessed a protectable interest in its customer relationships that would warrant enforcing a noncompete agreement against a former salesman of several years. In James S. Kemper & Co., supra, the supreme court upheld a noncompete agreement that had been entered into by an ex-employee, who had been the only salesman, solicitor, or servicing agent in Alabama for his employer, based partially on the ground that the employer had a vital interest in restraining the ex-employee from appropriating the employer’s customers with whom the ex-employee had formed relationships during his employment. Based on the principles espoused in those cases, the trial court reasonably could have concluded that ABC’s investment in Roberson and the valuable customer relationships Roberson had built and maintained for ABC while employed by ABC constituted protectable interests that would justify enforcement of the non-compete agreement. We therefore affirm the trial court’s judgment insofar as it holds the noncompete agreement to be enforceable.

We next address Roberson and Penhall’s arguments pertaining to damages. In its judgment, the trial court stated:

“Roberson testified that he had contacted three or four former customers of [ABC] since his termination and since he went to work for [Penhall], He further testified that he had sold product services the value in which he estimated to be several thousand dollars. Witness, Tim Robertson, testified that [Roberson] came out and sold to [a construction company] and that they used Penhall instead of ABC.
“Some of the evidence presented relative to the damages claimed was speculative at best. It is undisputed that ABC business declined after [Roberson] left. It is undisputed that Penhall sales increased when [Roberson] started work for them. However, there were no facts to support what ABC’s loss of business in dollars and cents would have been due to [Roberson’s] employment with Penhall. [ABC’s president] testified that he didn’t have any numbers to offer the Court relative to how much business he lost because of [Roberson].
“On the issue on whether [Penhall] interfered with the contractual relationship between [ABC] and [Roberson], the Court finds from the evidence that [Pen-hall] did intentionally interfere with the contractual relationship of [ABC] and [Roberson].
“Therefore, it is Ordered, Adjudged and Decreed, that [Roberson] pay [ABC] nominal damages in the amount of Twenty Five Thousand Dollars and 00/100 ($25,000.00) for breach of contract.
“It is further Ordered, Adjudged and Decreed, that [Penhall] pay [ABC] damages in the amount of Twenty Five Thousand and 00/100 Dollars ($25, 000.00) for intentional interference with the contractual relationship between [ABC] and [Roberson].”

(Bold typeface omitted.)

Roberson and Penhall argue that the evidence does not support the award of $50,000 in damages in this case. Much of their argument is premised on the insufficiency of the evidence relating to compensatory damages. However, we are convinced that the trial court did not award compensatory damages.

After determining that ABC had offered only speculative evidence regarding the extent of the monetary damage to its business by Roberson’s breach of the noncompete agreement, and after noting that ABC’s corporate representative had admitted that he had no estimate as to how much business ABC had lost due to the breach, see Corson v. Universal Door Sys., Inc., 596 So.2d 565, 570 (Ala.1991) (holding that employer claiming compensatory damages for breach of noncompete agreement must prove it lost money because of the breach by showing that it would have gotten the business that went to its former salesman’s new employer), the trial court entered a judgment against Roberson on the claim asserting breach of the noncompete agreement and awarded ABC $25,000, which it denominated solely as “nominal damages.” Under Alabama law, an award of nominal damages is proper when a defendant breached a contract but the plaintiff either suffered no actual damage or failed to prove actual damage. James S. Kemper & Co., 434 So.2d at 1385. Nominal damages are not based on the extent of any loss sustained as a result of the breach but are awarded in recognition of the invasion of the legal rights of the plaintiff. See Avis Rent-A-Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1120 (Ala.2003).

The trial court did not designate the type of damages it was awarding against Penhall; it merely referred to them as “damages.” The damages recoverable for intentional interference with a contractual relationship include:

“ ‘(1) the pecuniary loss of the benefits of the ... relation; (2) consequential losses for which the interference is a legal cause; ... (3) emotional distress or actual harm to reputation if either is reasonably to be expected to result from the interference,’ KW Plastics v. United States Can Co., 131 F.Supp.2d 1265, 1268 (M.D.Ala.2001); and (4) punitive damages.”

White Sands Group, L.L.C. v. PRS II, LLC, 32 So.3d 5, 17 (Ala.2009). In this case, the trial court found that ABC did not prove the extent of its pecuniary or consequential losses, and the record contains no evidence indicating that emotional distress or actual harm to ABC’s reputation had occurred or could be reasonably expected from Penhall’s interference with the noncompete agreement. Thus, it appears that the trial court did not award compensatory damages against Penhall. Hence, the trial court must have awarded ABC nominal damages and/or punitive damages. Penhall concedes that it interfered with the contractual relationship between Roberson and ABC, thus acknowledging an invasion of ABC’s legal rights that would support an award of nominal damages. Avis Rent-A-Car Sys., Inc., supra. An award of nominal damages will support an award of punitive damages. Life Insurance Co. of Georgia v. Smith, 719 So.2d 797 (Ala.1998).

Roberson and Penhall argue that an award of $25,000 as nominal damages is excessive. As to Penhall, we cannot address that argument. As shown above, the trial court did not indicate the nature of the damages it awarded against Penhall, except to eliminate compensatory damages. We cannot assume the $25,000 awarded against Penhall consisted entirely of nominal damages and no punitive damages. “ ‘It is the duty of ... the appellant ] to demonstrate an error on the part of the trial court; this court will not presume such error on the part of the trial court. Marvin’s, Inc. v. Robertson, 608 So.2d 391, 393 (Ala.1992).’” D.C.S. v. L.B., 4 So.3d 513, 521 (Ala.Civ.App.2008) (quoting G.E.A. v. D.B.A., 920 So.2d 1110, 1114 (Ala.Civ.App.2005)). Because the trial court’s award of damages against Pen-hall could have been in the nature of punitive damages and because Penhall has failed to argue that any award of punitive damages was excessive, Penhall has waived that argument. See Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1167 (Ala.2003) (“Issues not argued in a party’s brief are waived.”). We therefore affirm the trial court’s judgment against Penhall.

On the other hand, the trial court labeled the $25,000 award against Roberson as “nominal damages,” raising the issue whether Alabama law permits such a large nominal-damages award. Alabama law has not heretofore established any limit on the amount that can be awarded as nominal damages, but, by their very nature, such damages are intended to be “[a] trifling sum awarded when a legal injury is suffered but when there is no substantial loss or injury to be compensated” or “[a] small amount fixed as damages for breach of contract without regard to the amount of harm.” Black’s Law Dictionary 418 (8th ed.2004) (emphasis added); see also Williams v. Citizens Bank of Guntersville, 350 So.2d 1031, 1033 (Ala.1977) (recognizing, in dicta, that nominal damages are “ ‘a small sum fixed, without regard to the extent of harm done, by the custom of the jurisdiction in which the action is brought’” (quoting Corbin on Contracts, Vol. 5, § 1001, p. 29-30, and citing Kelly v. Fahrney, 97 F. 176 (C.C.W.D.Ark.1899))); Zok v. Alaska, 903 P.2d 574, 578 (Alaska 1995) (“Nominal damages are by definition minimal monetary damages.”). Nominal damages definitely are not intended as approximations of the compensatory damages that could have or should have been proven.

Like Alabama, Maryland has no statute, rule, or caselaw establishing a limit on an award of nominal damages. In Brown v. Smith, 173 Md.App. 459, 920 A.2d 18 (Md.Ct.Spec.App.2007), the Court of Special Appeals of Maryland stated:

“In the absence of authority limiting an award of nominal damages, the prevailing view appears to be that, although the amount of nominal damages ‘is not limited to one dollar, the nature of the award compels that the amount be minimal.’ [Cummings v. Connell, 402 F.3d 936,] at 943 [ (9th Cir.2005) ]; [s]ee also Romano v. U-Haul Int’l, 233 F.3d 655, 671 (1st Cir.2000)[] (applying same principle, in interpreting jury award of $15,000 in so-called nominal damages for civil rights violation as a compensatory damage award), cert. denied, 534 U.S. 815, 122 S.Ct. 41, 151 L.Ed.2d 14 (2001); Creem v. Cicero, 12 Conn.App. 607, 533 A.2d 234, 236 (1987) (‘ “Generally, nominal damages are fixed -without regard to the extent of harm done and are assessed in some trifling or trivial amount’”) (citation omitted); The Toledo Group, Inc. v. Benton Indus., Inc., 87 Ohio App.3d 798, 623 N.E.2d 205, 211 (1993) (‘ “Nominal damages” are some small amount of money, such as $1’); Texas v. Miles, 458 S.W.2d 943, 944 (Tex.Civ.App.1970) (‘ “Nominal” damages consist of a very small, trivial or inconsiderable sum awarded where, from the nature of the case, injury has been done, but the amount of which the proof fails to show').
“Thus, even though the sum awarded as nominal damages may vary somewhat according to circumstances, nevertheless, the award may be deemed excessive if it cannot reasonably be considered ‘minimal’ in the circumstances of the case. See, e.g., Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1491 (5th Cir.1990) (vacating award of $10,000 as excessive under Louisiana law); Chesapeake & Potomac Tel. Co. v. Clay, 194 F.2d 888, 890 (D.C.Cir.1952) (reducing award of $500 to $1); Pierson v. Brooks, 115 Idaho 529, 768 P.2d 792, 800 (Ct.App.1989) (‘the sum of $2,500 is more than nominal’); Davidson v. Schneider, 349 S.W.2d 908, 913 (Mo.1961) (award of $530 in damages was not a nominal award, but ‘an effort at measured compensation’); Fisher v. Barker, 159 Ohio App.3d 745, 825 N.E.2d 244, 247 (2005) (award of $1,500 was jury’s unsupported estimate of value of converted property, not nominal damages); Barbier v. Barry, 345 S.W.2d 557, 563 (Tex.Civ.App.1961) (‘$10,000 is excessive as nominal damages’); Keesling v. City of Seattle, 52 Wash.2d 247, 324 P.2d 806, 809 (1958) ($1 per day damage award for trespass of power transmission line six inches onto plaintiffs property was substantial and unsupported compensatory award, not nominal damages).
“We will apply this prevailing view because we think that to allow more substantial awards to fall within the rubric of nominal damages would vitiate the concept underlying such awards, which is recognition of the violation of a right, not to compensate for actual injury....
“To affirm a substantial damage award that is categorized by the trial court as ‘nominal damages’ would invite uncertainty for trial judges and juries regarding what are ‘nominal damages’ and how they differ from compensatory damages. When a court or jury makes an actual damages award, it must focus on the nature and extent of the injury to the plaintiff, applying well defined legal principles about how that injury may translate into a dollar amount.... When a court or jury makes a nominal damages award, however, it need not focus on the injury to the plaintiff, but merely on recognition of the right.... If we were to allow a judge or jury to award a substantial sum as so-called ‘nominal damages,’ which are neither based on the injury nor subject to the legal principles governing damage awards, we would be creating a new class of damages that are neither compensatory nor punitive. With such an uncertain foundation, any award of this nature poses an intolerable risk of an arbitrary result.”

173 Md.App. at 480-83, 920 A.2d at 30-32 (footnote omitted).

We are in agreement with the Court of Special Appeals of Maryland that the vast majority of courts have held that nominal damages should be minimal awards for technical violations of legal rights when no actual damages are sustained or no actual damages have been proven. See, e.g., Avina v. Spurlock, 28 Cal.App.3d 1086, 105 Cal.Rptr. 198 (1972); Colorado Inv. Servs., Inc. v. Hager, 685 P.2d 1371, 1375 (Col.1984); Hall v. Cornett, 193 Or. 634, 240 P.2d 231 (1952); and Foote v. Clark, 962 P.2d 52 (Utah 1998). Although we recognize that Georgia law differs on this point, see, e.g., MTW Inv. Co. v. Alcovy Props., Inc., 273 Ga.App. 830, 616 S.E.2d 166 (2005) (affirming award of $625,000 in nominal damages in wrongful lis pendens action based on view that nominal damages are relativistic in nature), we cannot conform Georgia’s view of nominal damages to Alabama’s historical treatment of nominal damages as a mere recognition of the commitment of a legal wrong.

In this case, the trial court concluded that Roberson had breached the noncom-pete agreement. The invasion of ABC’s legal rights justified the award of nominal damages, but it did not authorize the trial court to award an amount as high as $25,000. We therefore reverse the judgment insofar as it awards $25,000 in nominal damages against Roberson and remand the case for the trial court to enter a new judgment awarding a minimal amount of nominal damages against Roberson.

APPLICATION OVERRULED; OPINION OF JANUARY 29, 2010, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Section 8-l-l(a), Ala.Code 1975, provides:
      “Every contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind otherwise than is provided by this section is to that extent void.”