author: BRYAN, Judge.

text:
    Robert A. MANDELLA, Sr., and Sharon Mandella v. Eric PENNINGTON.
    2100131.
    Court of Civil Appeals of Alabama.
    June 17, 2011.
    J. Farrest Taylor and Karol Fleming of Cochran, Cherry, Givens, Smith, Lane & Taylor, P.C., Dothan, for appellants.
    R. Mac Freeman, Jr., and J. Evans Bailey of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.
   BRYAN, Judge.

The sole issue presented by this appeal is whether the trial court erred in holding that Eric Pennington, the defendant below, was entitled to a summary judgment with respect to the wantonness claim of Robert A. Mandella, Sr. (“Robert”), and Sharon Mandella (“Sharon”), the plaintiffs below. For the reasons discussed below, we conclude that the trial court did not err in entering a summary judgment in favor of Pennington on the wantonness claim, and, therefore, we affirm the judgment of the trial court.

Standard of Review

“We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002).

We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the non-movant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’
“Nationwide Prop. & Cas. Ins. Co. [v. DPF Architects, P.C.], 792 So.2d [369] at 372 [ (Ala.2001) ] (citations omitted), quoted in American Liberty Ins. Co., 825 So.2d at 790.”

Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002).

Undisputed Facts

On September 14, 2009, Robert and Pennington were coworkers at a Domino’s Pizza franchise (“Domino’s”) located along the northern right-of-way of Highway 84 in Dothan. Highway 84, which is also known as East Main Street, consists of multiple westbound lanes and multiple eastbound lanes separated by a concrete median. On September 14, 2009, both Robert and Pennington received paychecks and wanted to go to the Regions Bank branch (“Regions”) located along the southern right-of-way of Highway 84 across from Domino’s in order to do their banking. Robert accepted Pennington’s offer of a ride to Regions and got into the front passenger seat of Pennington’s automobile. Pennington got into the driver’s seat and drove the automobile. Pennington was familiar with the portion of Highway 84 separating Domino’s from Regions. Although there is no traffic light located directly between Domino’s and Regions, there is a paved gap in the concrete median there. The paved gap in the median allows traffic to cross the median from the westbound lanes to the eastbound lanes and vice versa. In order to travel from Domino’s parking lot to Regions, Pennington planned to cross the westbound lanes to the paved gap in the concrete median and then cross the eastbound lanes. Pennington drove his automobile to the edge of Domino’s parking lot, stopped at the stop sign located there, and waited for several automobiles to pass in the westbound lanes before proceeding to cross Highway 84. Pennington’s automobile crossed the westbound lanes to the paved gap in the concrete median without incident. While it was crossing the eastbound lanes of Highway 84, Pennington’s automobile was struck broadside on the passenger side by a truck and Robert was injured.

Disputed Facts

Pennington testified that, after crossing the westbound lanes, he stopped in the paved gap in the concrete median but his shoe, which was wet from the rain that had been falling that day, slipped off of the brake pedal, and his automobile rolled into the middle of the northernmost eastbound lane before he was able to apply the brake again and stop. He further testified that, except for the pillar connecting the roof of his automobile to its hood, he had an unobstructed view of oncoming traffic in the eastbound lanes and that, except for some traffic located approximately 400 or 500 feet away, he did not see any oncoming traffic in the eastbound lanes. He testified that he thought that he would have enough time to cross the eastbound lanes before the oncoming traffic he saw 400 or 500 feet away reached him and that he proceeded to cross the eastbound lanes but a truck struck his automobile when his automobile was in the third eastbound lane from the paved gap in the concrete median. He testified that he had not seen that truck before it struck his automobile.

Robert testified that he did not know whether Pennington stopped in the paved gap in the concrete median. Chris Beck signed an affidavit in which he testified as follows:

“1. On September 14, 2009, I was traveling east on East Main Street in Dothan, Alabama.
“2. I was in the left lane of the east bound lanes of East Main Street. I saw a Toyota Camry attempting to cross four lanes of traffic. The Camry had to cross the west bound lanes, the median, and then the east bound lanes.
“8. The Toyota Camry failed to stop in the median even though I was very close to the median, I narrowly missed colliding into the Toyota Camry.
“4. While I narrowly missed the Toyota Camry, the Toyota Camry was involved in [a] collision with a commercial sized truck that was in the right lane just beside me.
“5. There were no obstructions that would have blocked the view of the driver of the Toyota Camry.
“6. The driver of the Toyota Camry did not stop in the median or yield to the oncoming traffic even though I and the truck beside me were very close to the median when the Toyota attempted to cross. It appeared to me that he was trying to race across four lanes in an attempt to beat the oncoming traffic.”

Procedural History

Robert and his wife, Sharon, sued Pennington, stating claims of negligence and wantonness. Pennington moved for a summary judgment, asserting that he was entitled to a summary judgment with respect to the negligence claim by virtue of the Guest Passenger Statute, § 32-1-2, Ala.Code 1975, and that he was entitled to a summary judgment with respect to the wantonness claim by virtue of the supreme court’s decision in Ex parte Essary, 992 So.2d 5 (Ala.2007).

Robert and Sharon conceded that Pennington was entitled to a summary judgment with respect to the negligence claim by virtue of the Guest Passenger Statute; however, they asserted that he was not entitled to a summary judgment with respect to the wantonness claim. Specifically, they argued:

“The facts of this case are almost identical to the facts in Barker v. Towns, 747 So.2d 907 (Ala.Civ.App.1999), which held that the issue of wantonness should be decided by the jury. Towns, the defendant driver, failed to yield the right-of-way to an oncoming truck that should have been clearly visible. The truck driver testified that Towns never stopped before entering the intersection. The truck struck Towns’ vehicle killing Towns and injuring his passenger. The trial court’s summary judgment on the issue of wantonness was reversed by the Alabama Civil Court of Appeals which ruled there was sufficient proof of evidence to present the wantonness claim to a jury.
“Like the plaintiff in Barker, [Robert and Sharon have] ‘presented evidence tending to show that [Pennington] entered the intersection after seeing the truck approaching’ the intersection. Id. at 909. Although he denies seeing the truck, Pennington admitted to having an unobstructed view in the direction of the oncoming trucks.... Additionally, and as was the case in Barker, an eyewitness saw Pennington race through the median into the path of the oncoming truck, ‘and there is no dispute that the truck driver had the right-of-way.’ Id. at 909.... Therefore, as the court held in Barker, ‘[t]hese facts constitute! ] substantial evidence supporting the wantonness claim; therefore, the issue [should be] presented to the jury.’ Id. at 909.
“The facts that made wantonness a jury question in Clark v. Black, 630 So.2d 1012 (Ala.1993), are present in this case. In Clark, the defendant was very familiar with the intersection and therefore should have been familiar with the dangers associated with the intersection. Id. at 1016. Pennington was very familiar with this intersection because he traversed it routinely leaving Domino’s to deliver pizzas ..., in fact, his delivery area included Ashford, which would require him to use this intersection to turn left. In Clark, one hazard was a ‘hill-crest’ that limited visibility of the intersection. In this case, the hazard is crossing at least six lanes of traffic on a highway.
“Like the defendant in Clark, Pennington knew of his obligation to yield to oncoming traffic but made no attempt to do so. Also like the defendant in Clark, Pennington attempted to race across the intersection without any regard to oncoming traffic. As the Supreme Court recognized in [Ex parte ] Essary, 992 So.2d 5 (Ala.2007), disregard of known dangers of an intersection is sufficient to make wantonness a question for the jury-
“Judge Thompson in Monroe v. Brown, 307 F.Supp.2d 1268 [ (M.D.Ala.2004) ], denied a defendant’s motion for summary judgment on the issue of wantonness involving a rear-end collision because the defendant consciously ignored the rules of the road. In Monroe, the plaintiff approached an intersection, braked, and then released the brake. The defendant driver assumed that the plaintiff was going to proceed through the yellow light and the defendant driver intended to do the same. The plaintiff, however, stopped at the intersection and the defendant driver rear ended the plaintiff [rjather than heeding the yellow light and coming to a stop. Judge Thompson found that the defendant driver consciously accelerated assuming that the plaintiff would proceed through the yellow light, creating a risk for all those involved. Pennington, like the defendant in Monroe, made a conscious decision to ignore the rules of the road.
“Pennington’s conduct was materially different than the driver in Essary. First, in Essary, the Supreme Court emphasized the absence of any evidence to suggest that there was particular danger at the intersection that the defendant should have been aware of. Es-sary makes no mention of the size of the intersection, and presumably, it was not an issue. But in this case, Pennington had to traverse six lanes of traffic, two turn lanes, and a median to cross this intersection. Rather than exercising more caution at this intersection, Pennington did the opposite by racing across it.
“Second, in Essary, the undisputed testimony showed that the defendant did, at a minimum, come to a rolling stop suggesting that he did not simply ignore his legal duty to yield to traffic. Pennington made no such attempt to stop but raced through the median demonstrating a conscious disregard of a known duty. A reasonable jury could find that Pennington acted consciously. Third, unlike the facts in Essary, a jury could find that Pennington’s judgment was affected because he was on a personal errand while at work.
“Chris Beck, an eyewitness, testified that Pennington did not stop in the median. After racing through the median, Pennington just narrowly missed colliding with Beck’s truck.... Pennington has failed to explain how he missed seeing two large trucks. Even by his own testimony, Pennington had a clear line of sight for 500 feet in the direction of oncoming eastbound traffic. But Pennington provides no explanation as to why he did not see the two trucks that were almost in the intersection in front of him. A reasonable inference drawn in favor of [Robert and Sharon] is that Pennington did see the trucks and made the conscious decision to attempt to cross the intersection. Alternatively, a reasonable inference is that Pennington made the conscious decision to cross the highway without even checking for oncoming traffic in the eastbound lanes of the highway.
“Pennington’s failure to yield the right-of-way violated the Rules of the Road. Section 32-5A-114 of the Alabama Code required Pennington to yield the right-of-way to the traffic on Highway 84. If Pennington did not see the trucks, he breached his duty to keep a lookout for other vehicles on the road. Pennington admitted that pulling out in front of a vehicle would place his passengers at risk for injury. He also admitted that attempting to cross a highway without making sure the lanes were clear would be dangerous.”

(Footnotes omitted.)

Following a hearing, however, the trial court entered a judgment granting Pennington’s summary-judgment motion with respect to both the negligence claim and the wantonness claim. Regarding the wantonness claim, the trial court stated:

“The remaining issue is [Pennington’s] Motion for Summary Judgment on [Robert and Sharon’s] wantonness claim. The Court has carefully reviewed the evidence submitted by the parties with a view most favorable to [Robert and Sharon]. [Pennington] testified at his deposition that his foot slipped off the brake pedal just prior to the wreck ... and that he then ‘looked and saw that I would have enough time from the traffic that I saw.... That I would have enough time to get across.’ ... He further stated that he never saw the truck that hit him.... Based on this evidence, [Pennington’s] conduct is simple negligence under Alabama law.
“However, [Robert and Sharon] also offer the eye-witness testimony, by affidavit, of Chris Beck. Although eonclu-sory, but accepted by the Court as truthful and in a light most favorable to [Robert and Sharon], Mr. Beck states that, ‘It appeared to me that [Pennington] was trying to race across four lanes in an attempt to beat the oncoming traffic.’
“The Court believes that this case is controlled by the ease of Ex parte Essary, 992 So.2d 5 (Ala.2007). The essential holding of Essary is that an attempt to ‘beat the traffic’ cannot rise beyond negligence and become wanton or reckless conduct without additional aggravating circumstances. ‘At best, the plaintiffs’ evidence shows that Essary ... made an error in judgment when he attempted to “beat the traffic”.... ’ In the present case the most favorable evidence available to [Robert and Sharon] (the affidavit of Chris Beck) is that [Pennington] was attempting to ‘beat the traffic’ when the wreck occurred.
“[Robert and Sharon’s] position tracks the argument made by the Chief Justice in her dissent in Essary that the jury should consider the total circumstances on a ‘beat the traffic’ lawsuit on whether the Defendant has the requisite mental state to justify a wanton conduct claim. Likewise this Court is uncomfortable in having to rule on a party’s mental state or awareness on a ‘beat the traffic’ case. Nonetheless, the Court is unable to read Essary in any way other than establishing a rule that a Plaintiff must offer additional aggravating evidence to withstand summary judgment on a wantonness claim based on ‘beating the traffic.’
“Accordingly, [Pennington’s] Motion for Summary Judgment is GRANTED.”

Robert and Sharon timely appealed to the supreme court on September 23, 2010, and the supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Analysis

Robert and Sharon first argue that the trial court erred in granting Pennington’s summary-judgment motion with respect to the wantonness claim because, they say, the case now before us is distinguishable from Essary. They argue that, in the case now before us, there is evidence indicating that Pennington was conscious that harm would likely or probably result from his attempting to beat the oncoming traffic whereas, in Essary, there was no such evidence.

The supreme court summarized the factual background and procedural history of Essary as follows:

“On the evening of May 22, 2002, Es-sary was driving west on McPherson Landing Road in Tuscaloosa County. Essary reached the intersection of McPherson Landing Road and Highway 69, where a stop sign obligates the westbound traffic on McPherson Landing Road to stop and yield to traffic traveling north and south on Highway 69. There are no stop signs halting traffic traveling on Highway 69. As Essary proceeded through the intersection, his vehicle collided with a vehicle traveling north on Highway 69 that was being driven by Latrice Burrell and occupied by Irene Banks and Loretta Pratcher.
“On August 31, 2004, Burrell, Banks, and Pratcher sued Essary and his automobile insurer in the Hale Circuit Court to recover damages for negligence, wantonness, and trespass. The case was later transferred to the Tuscaloosa Circuit Court.
“Essary moved for a summary judgment, asserting that the negligence claim was barred by the applicable statute of limitations and that his conduct did not constitute either wantonness or a trespass. Essary supported his motion with, among other things, his deposition and the depositions of Burrell and Banks. Essary testified in his deposition that he did not see Burrell’s vehicle when he entered the intersection. Bur-rell’s deposition testimony indicated that Essary made a ‘rolling stop’ at the intersection and that he then pulled out in front of the vehicle she was driving. Essary argued in his motion for a summary judgment that
“ ‘the evidence indicates at most that [Essary] made a “rolling stop” and failed to yield the right-of-way. [Es-sary], without dispute, testified that he looked both ways before entering the intersection and did not see [Bur-rell’s] vehicle approaching. He testified that he may have failed to see [Burrell’s] vehicle due to the artificial lighting along the highway. There is no evidence that [Essary] was drunk, intoxicated, that he was conscious that [Burrell’s] vehicle was near or that a collision was about to occur. That is, there is no substantial evidence that [Essary’s] conduct rose to the level of wantonness, as that term is defined in Alabama.’
“In opposition to the summary-judgment motion, the plaintiffs submitted, among other things, an affidavit by Bur-rell, in which she stated that, in her ‘opinion,’ Essary came to ‘rolling stop’ at the intersection and, after a vehicle being driven by Erica Banks passed the intersection, accelerated into the intersection as he passed the stop sign. Bur-rell stated: ‘In my opinion, he was attempting to “shoot through the gap,” between the lead vehicle and the vehicle I was driving.’
“After a hearing on the motion, the trial court entered a summary judgment in favor of Essary on all claims. The trial court held, among other things, that there was no substantial evidence of wanton conduct. The trial court subsequently denied a postjudgment motion by the plaintiffs, who then appealed to this Court. We transferred the case to the Alabama Court of Civil Appeals pursuant to Ala.Code 1975, § 12-2-7(6). The Court of Civil Appeals affirmed the trial court’s judgment on the negligence claim and the trespass claim, but reversed the trial court’s judgment on the wantonness claim, holding that the plaintiffs had established a genuine issue of material fact regarding whether Essary had acted wantonly. Burrell v. Essary, [992 So.2d 1 (Ala.Civ.App.2006) ]. Specifically, the Court of Civil Appeals held:
“ ‘Burrell’s testimony regarding the circumstances of the collision conflicted with Essary’s testimony and tended to prove a set of circumstances from which a jury could draw a “reasonable inference” that Essary knew that the vehicle driven by Burrell was close to the intersection when he accelerated into the intersection despite being aware that his doing so would likely or probably result in injury to the plaintiffs.’
“992 So.2d at 5. Essary filed an application for rehearing, which the Court of Civil Appeals overruled. He then petitioned this Court for certiorari review alleging, among other things, that the Court of Civil Appeals’ decision conflicted with Wilson v. Cuevas, 420 So.2d 62 (Ala.1982). See Rule 39(a)(1)(D), Ala. R.App. P. We granted the petition, and we now reverse the part of the judgment of the Court of Civil Appeals that reversed the trial court’s judgment on the wantonness claim and render a judgment in favor of Essary on that claim.”

992 So.2d at 7-8.

Explaining its rationale for holding that Essary was entitled to a summary judgment with respect to the wantonness claim, the Essary Court, in pertinent part, stated:
“ ‘Wantonness’ has been defined by this Court 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 (Ala.1994). To constitute wantonness, it is not necessary that the actor know that a person is within the zone made dangerous by his conduct; it is enough that he knows that a strong possibility exists that others may rightfully come within that zone. Joseph v. Staggs, 519 So.2d 952, 954 (Ala.1988). Also, it is not essential that the actor should have entertained a specific design or intent to injure the plaintiff, only that the actor is ‘conscious’ that injury will likely or probably result from his actions. Id. ‘Conscious’ has been defined as ‘ “perceiving, apprehending, or noticing with a degree of controlled thought or observation: capable of or marked by thought, will, design, or perception” ’; ‘ “having an awareness of one’s own existence, sensations, and thoughts, and of one’s environment; capable of complex response to environment; deliberate.” ’ Berry v. Fife, 590 So.2d 884, 885 (Ala.1991) (quoting Webster’s New Collegiate Dictionary 239 (1981) and The American Heritage Dictionary of the English Language 283 (1969), respectively).
“Additionally, when determining if a defendant’s actions constitute wanton conduct, it is important for the court to distinguish between wantonness and negligence.
“““Wantonness is not merely a higher degree of culpability than negligence. Negligence and wantonness, plainly and simply, are qualitatively different tort concepts of actionable culpability. Implicit in wanton, willful, or reckless misconduct is an acting, with knowledge of danger, or with consciousness, that the doing or not doing of some act will likely result in injury....
“““Negligence is usually characterized as an inattention, thoughtlessness, or heedlessness, a lack of due care; whereas wantonness is characterized as ... a conscious ... act. “Simple negligence is the inadvertent omission of duty; and wanton or willful misconduct is characterized as such by the state of mind with which the act or omission is done or omitted.” McNeil v. Munson S.S. Lines, 184 Ala. 420, [423], 63 So. 992 (1913)....””
“Tolbert v. Tolbert, 903 So.2d 103, 114-15 (Ala.2004) (quoting Ex parte Anderson, 682 So.2d 467, 470 (Ala.1996), quoting in turn Lynn Strickland Sales & Serv., Inc. v. Aero-Lane Fabricators, Inc., 510 So.2d 142, 145-46 (Ala.1987)) (emphasis added).
“The determination whether a defendant’s acts constitute wanton conduct depends on the facts in each particular case. Ex parte Anderson, 682 So.2d at 470. In support of his motion for a summary judgment, Essary submitted his deposition and the depositions of Burrell and Irene Banks. In his deposition, Essary testified that he drove on McPherson Landing Road frequently and that he was familiar with the intersection where the collision occurred. Essary stated that on the evening of the accident he was traveling west on McPherson Landing Road because he wanted to go to a convenience store to purchase cigarettes. Essary also testified that, as he approached the intersection, he came to a full stop, checked the traffic on Highway 69 in both directions, and did not see any vehicles coming from either the north or the south on Highway 69. Essary then drove out into the intersection, where his vehicle collided with Burrell’s.
“In her deposition, Burrell described the accident as follows:
“ ‘[Essary’s counsel:] Okay. All right. I want you to tell me then what happened then, from the time you saw [Essary’s] car for the first time until the wreck happened.
“ ‘[Burrell:] I was riding behind [Erica Banks’s sport-utility vehicle]. [Pratcher] saw the car first and she was starting to tell me that she didn’t think that [Essary’s] car was going to stop at the stop sign. We were driving and [Banks’s sport-utility vehicle] passed the intersection. And [Es-sary’s car] ... was approaching the intersection....
“ ‘... He rolled up to the stop sign, but he never came to a complete stop.
“ ‘... And by the time that I realized he wasn’t going to stop, I threw on the brakes, but I knew I was going to hit him. It was too late.
“‘[Essary’s counsel:] So it sounds like you’re describing a car that maybe slowed down but didn’t make a full stop.
“ ‘[Burrell:] Yes.
“‘[Essary’s counsel:] Made kind of what you call a rolling stop; is that what you’re saying?
“ ‘[Burrell:] Yes.’
“Additionally, Burrell stated in an affidavit:
“ ‘Mr. Essary appeared, in my opinion, to come to a rolling stop, wherein he observed the lead vehicle containing Mrs. Erica Banks which was right in front of the vehicle I was driving. As he observed Mrs. Banks drive by, he did not stop, but actually accelerated just as he passed the stop sign. In my opinion, he was attempting to “shoot through the gap,” between the lead vehicle and the vehicle I was driving.’
“The evidence, viewed, as it must be, in a light most favorable to the plaintiffs, the nonmovants, shows that Es-sary slowed to a ‘rolling stop’ at the intersection and attempted to cross the intersection between two moving vehicles. The plaintiffs’ characterization of Essary’s attempt to cross the intersection between two vehicles as ‘accelerating’ after a ‘rolling stop’ to ‘shoot the gap’ does not elevate Essary’s actual conduct — as observed by the plaintiffs— from the negligent failure to exercise good judgment to a wanton act constituting reckless indifference to a known danger likely to inflict injury. At best, the plaintiffs’ evidence shows that Es-sary, like the defendant in Wilson, made an error in judgment when he attempted to ‘beat the traffic’ or ‘shoot the gap’ by passing between Banks’s vehicle and Burrell’s vehicle. Wilson holds that such conduct is not wanton.
“Although the evidence indicates that Essary knowingly entered the intersection, there is nothing from which the trier of fact could infer that, in moving his vehicle through the intersection, Es-sary’s state of mind contained the requisite consciousness, awareness, or perception that injury was likely to, or would probably, result. Indeed, the risk of injury to Essary himself was as real as any risk of injury to the plaintiffs. Absent some evidence of impaired judgment, such as from the consumption of alcohol, we do not expect an individual to engage in self-destructive behavior. See Griffin Lumber Co. v. Harper, 252 Ala. 98, 95, 39 So.2d 899, 401 (1949) (‘There is a rebuttable presumption recognized by the law that every person in possession of his normal faculties in a situation known to be dangerous to himself, will give heed to instincts of safety and self-preservation to exercise ordinary care for his own personal protection. It is founded on a law of nature and has [as] its motive the fear of pain or death. Atlantic Coast Line R. Co. v. Wetherington, 245 Ala. 313(9), 16 So.2d 720 [(1944)].’).
“The facts here presented do not establish any basis from which to conclude that Essary was not possessed of his normal faculties, such as from voluntary intoxication, rendering him indifferent to the risk of injury to himself when crossing the intersection if he collided with another vehicle. Nor is the act as described by Burrell so inherently reckless that we might otherwise impute to Es-sary a depravity consistent with disregard of instincts of safety and self-preservation. We therefore conclude that, as a matter of law, the plaintiffs failed to offer substantial evidence indicating that Essary was conscious that injury would likely or probably result from his actions.”

992 So.2d at 9-12.

In the case now before us, the undisputed evidence established that Pennington stopped at the stop sign located at the edge of Domino’s parking lot and let several automobiles pass before beginning to cross Highway 84. The evidence was in conflict regarding whether Pennington stopped in the paved gap in the concrete median before attempting to cross the eastbound lanes; however, for purposes of reviewing a summary judgment, we must view that conflicting evidence in the light most favorable to Robert and Sharon. Hence, for purposes of reviewing the summary judgment, we accept Beck’s testimony that Pennington did not stop in the paved gap in the concrete median and that he appeared to be attempting to beat the oncoming traffic. Nonetheless, we And that the trial court did not err in holding that, under the supreme court’s decision in Essary, Pennington was entitled to a summary judgment with respect to the wantonness claim. In Essary, the facts, viewed in the light most favorable to the plaintiffs, indicated that the defendant made a “rolling stop” and then attempted to beat the oncoming traffic. In the case now before us, the facts, viewed in the light most favorable to Robert and Sharon, indicate that Pennington made a complete stop at the stop sign located at the edge of Domino’s parking lot and then tried to beat the oncoming traffic. It appears that, in the case now before us, Pennington had to cross a greater distance in order to beat the oncoming traffic than Essary did; however, as was the case in Essary, there is no evidence in the case now before us indicating that Pennington was intoxicated or otherwise impaired and there is no evidence indicating that he was conscious that harm would likely or probably result from his attempting to beat the oncoming traffic. Therefore, we find no merit in Robert and Sharon’s argument that the case now before us is distinguishable from Essary.

Robert and Sharon also argue that the case now before us is factually more analogous to Clark v. Black, 630 So.2d 1012 (Ala.1993), a case in which the supreme court reversed a directed verdict in favor of the defendant with respect to a wantonness claim, than it is to Essary. In Clark,

“[t]he evidence indicated that Black was traveling west on Union Chapel Road when she approached the intersection of Union Chapel Road and Watermelon Road. Black was familiar with the intersection, and she knew that a stop sign required traffic on Union Chapel Road to stop at the intersection. Traffic on Watermelon Road was not required to stop at the intersection, and there was a ‘hillcrest’ on Watermelon Road just north of the intersection that impaired visibility. As Black approached the intersection, she failed to stop, and she entered the intersection and collided with a motorcycle driven by the plaintiff, who was traveling south on Watermelon Road. Testimony at trial by an eyewitness to the accident indicated that Black was traveling at a ‘very fast speed.’ Clark, 630 So.2d at 1016.”

Essary, 992 So.2d at 12-13.

The Essary Court distinguished Clark:

“The instant case is distinguishable from Clark. The evidence in Clark indicated that the defendant knew of a particular danger at the intersection, that she was traveling at a high rate of speed, and that she ignored a stop sign. No such set of circumstances exist here. There is no evidence indicating that Es-sary was aware of any particular danger at the intersection of McPherson Landing Road and Highway 69, and he did not speed through the intersection while ignoring the stop sign. Instead, Bur-rell’s testimony shows that when Essary reached the intersection, he slowed and made a ‘rolling stop.’ This testimony, unlike the eyewitness’s testimony in Clark, does not allow for the reasonable inference that Essary’s conduct was wanton.”

992 So.2d at 13.

In the case now before us, there is no evidence indicating that Pennington knew of a particular danger comparable to the hillcrest that was involved in Clark. Moreover, there is no evidence indicating that he ignored a stop sign — he obeyed the stop sign located at the edge of Domino’s parking lot and there is no evidence indicating that a stop sign was located at the paved gap in the concrete median. Finally, there is no evidence indicating that Pennington was traveling at a high rate of speed. Therefore, we find no merit in Robert and Sharon’s argument that the present case is more analogous to Clark than it is to Essary.

Finally, Robert and Sharon argue that we should reverse the summary judgment with respect to the wantonness claim because, they say, a jury should decide whether, in light of all the circumstances, Pennington’s conduct was wanton. However, this is the same argument that was advocated by the dissent and rejected by the majority in Essary. Therefore, we cannot reverse the judgment of the trial court based on that argument.

Accordingly, based on the decision of the supreme court in Essary, we affirm the judgment of the trial court.

AFFIRMED.

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

      . Section 32-1-2 provides:
      "The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner, or person responsible for the operation of the motor vehicle.”


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    J.C. HUDSON, Jr., et al. v. RENOSOL SEATING, LLC, et al.
    2090878.
    Court of Civil Appeals of Alabama.
    June 17, 2011.

      Silas G. Cross, Jr., Justin L. Smith, and Adam G. Cross of Cross, Poole & Smith, L.L.C., Tuscaloosa; Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville and R. Bernard Harwood, Jr., of Rosen Harwood, P.A., Tuscaloosa, for appellants.
    Chris M. Mitchell and Stuart D. Roberts of Maynard, Cooper & Gale, P.C., Birmingham, for appellees Renosol Seating, LLC, Renosol Seating Properties, LLC, Lear Operations Corporation and Lear Corporation.
    Joseph H. Driver, Brett A. Ross, and Virginia Gamburcuta of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham; and William J. Gamble of Gamble, Gamble & Caíame, LLC, Selma, for appellee Renosol Corporation.
    W. Lee Thuston of Burr Forman, L.L.P., Birmingham, for amicus curiae Alabama Automobile Manufacturers Association, in support of the appellees.
    Robert A. Huffaker and R. Austin Huf-faker, Jr,, of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amici curiae Automobile Dealers Association of Alabama, Alabama Self-Insurers Association, and Alabama Council of Association Workers’ Compensation Self-Insurers Fund, in support of the appellees.
    S.Mark Dukes of Holtsford Gilliland Higgins Hitson & Howard, P.C., Montgomery; and Patrick L.W. Sefton of Sasser, Sefton, Tipton & Davis, P.C., Montgomery, for amicus curiae Alabama Defense Lawyers Association, in support of the appellees.
   PITTMAN, Judge.

This appeal concerns whether a portion of the Alabama Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq. (“the Act”) — namely, the so-called “exclusivity provisions” of the Act appearing at Ala. Code 1975, §§ 25-5-52 and 25-5-53 — bars certain claims in tort that have been asserted by a number of people (“the workers”) who allegedly performed labor at a factory in Dallas County that produces “foam shapes for automobile seat backs, cushions and/or headrests.” Because we conclude that the exclusivity provisions bar those tort claims, we affirm the judgment of the Dallas Circuit Court, made final pursuant to Rule 54(b), Ala. R. Civ. P., dismissing the claims.

The workers initiated this action in the Dallas Circuit Court in December 2008, naming as defendants (a) certain corporate entities, including Renosol Seating, LLC; Renosol Seating Properties, LLC; Reno-sol Corporation; Lear Operations Corporation; and Lear Corporation (collectively, “the corporate defendants”); (b) certain individuals, including David Ash, Pete Ber-nier, Connie Messer, Wayne Savage, Ricky Brown, and Robert Strickland (“the co-employee defendants”); and (c) various fictitiously named parties listed as defendants pursuant to Rule 9(h), Ala. R. Civ. P. The complaint contained five counts: a count seeking damages based upon allegations that all the defendants had “intentionally, willfully, negligently and/or wantonly caused or allowed the [workers] to be subjected and/or exposed to hazardous and/or harmful chemicals, substances and/or conditions” (count I); a count seeking damages based upon allegations that all the defendants had “intentionally and/or willfully failed to provide and/or maintain a safe work place for the [workers]” (count II); a count seeking damages only from the co-employee defendants pursuant to Ala.Code 1975, § 25-5-ll(c), a portion of the Act (count III); a count seeking damages based upon allegations that all the defendants had fraudulently misrepresented or suppressed material facts as to conditions at the factory where the workers had performed labor (count IV); and a claim seeking from the corporate defendants an award of workers’ compensation benefits pursuant to the Act (count V). Although the complaint has been amended on several occasions to add parties, the substance of the five counts of the complaint has remained the same since the initiation of the action; further, each amended complaint has sought a jury trial.

After the original complaint was filed, the co-employee defendants filed an answer averring, among other things, that the Act provided the workers’ exclusive remedy as to the claims against them. All the corporate defendants filed answers to count V of the complaint and moved to dismiss the other counts that applied to them (ie., counts I, II, and IV), specifically invoking the exclusivity provisions as a basis for dismissal. In responding to the motions to dismiss, counsel for the workers expressly conceded that count II was due to be dismissed as to the corporate defendants but opposed the dismissal of counts I and IV. After a hearing, the trial court entered an order dismissing counts I, II, and IV as they applied to the corporate defendants. The corporate defendants then moved for the entry of a final judgment as to that dismissal order. Before the trial court could hear arguments on the motion, the existence of bankruptcy proceedings involving some of the corporate defendants (and of the applicability of the automatic-stay provisions of 11 U.S.C. § 362) was suggested on the record; that stay was lifted as of November 10, 2009, and the trial court on that date expressly directed the entry of a final judgment as to its earlier dismissal order, pursuant to Rule 54(b), Ala. R. Civ. P.

On December 9, 2009, counsel for the workers timely filed a motion, pursuant to Rule 59, Ala. R. Civ. P., to vacate the final judgment as to the dismissed counts against the corporate defendants; the workers averred, among other things, that the claims remaining in the case were factually intertwined with the dismissed claims so as to require that they proceed together to a judgment and that the exclusivity provisions of the Act did not apply to bar the tort claims asserted against the corporate defendants. The trial court did not expressly rule on the workers’ post-judgment motion by March 19, 2010, the date specified by the parties in their consent to extend the 90-day deadline to rule on the motion as set forth in Rule 59.1, Ala. R. Civ. P.; thus, that motion was denied on that date. The workers timely appealed from the November 10, 2009, judgment; the appeal was transferred to this court pursuant to Ala.Code 1975, § 12-2-7(6).

We first consider whether we may properly exercise appellate jurisdiction as to the appeal based upon the trial court’s Rule 54(b) direction of entry of a final judgment as to its dismissal order.

“ ‘If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment.’ The exception to that rule is that [an appellate court] will not consider an appeal from a judgment certified as final under Rule 54(b) if it determines that the trial court exceeded its discretion in concluding that there is ‘no just reason for delay.’ This Court has previously held that a trial court exceeds its discretion in this area when the claim or claims that remain pending in the trial court present issues that are ‘intertwined’ with the issues presented in the claim certified as final pursuant to Rule 54(b).”

Smith v. Slack Alost Dev. Servs. of Alabama, LLC, 32 So.3d 556, 562 (Ala.2009) (citations omitted and emphasis removed).

The workers assail the trial court’s decision to direct the entry of a final judgment on the basis that, they contend, the tort claims dismissed by the trial court are intertwined with the claims that remain pending. However, we conclude that the trial court has acted within its discretion to allow immediate appellate review of its dismissal order. The dismissal of all the tort counts in which the corporate defendants are named, ie., all the claims against those defendants that do not seek benefits under the Act, effectively excises the issues of compensatory and punitive damages from the action as it relates to the corporate defendants, leaving the workers to their compensation remedies under Article 3 of the Act (which are not dependent upon any culpability of the employer, see Ala.Code 1975, § 25-5-51). Further, the dismissal of those claims negates the prospect that the corporate defendants will be required to wait for an available jury docket before a judgment concluding their participation in the action can be entered, and the dismissal greatly narrows the scope of the issues to be litigated between the workers and the corporate defendants. Further, no counterclaim has been asserted against the workers that would counsel in favor of simultaneous adjudication, and there is no real likelihood that the trial court will ignore the mandate of this court so as to engender a possibility that consideration of the same issue a second time will be required. See Lighting Fair, Inc. v. Rosenberg, 63 So.3d 1256, 1264 (Ala.2010) (citing federal cases indicating the importance of such factors in determining the propriety of directing the entry of a final judgment pursuant to Rule 54(b)). We thus decline the workers’ invitation to set aside the trial court’s direction of the entry of a final judgment as to its dismissal order.

We now turn to the merits of the appeal. Count I and count IV were the sole tort counts asserted against the corporate defendants as of the date of the trial court’s dismissal order as to which counsel for the workers had not conceded the propriety of dismissal in the trial court. Both counts incorporated certain factual averments of the complaint by reference, including an averment that the workers “are and/or were employed by the [corporate defendants] and/or fictitious party defendants” at a factory in Dallas County. Count I alleged that the corporate defendants, the co-employee defendants, “and/ or” the fictitiously named defendants had “intentionally, willfully, negligently and/or wantonly caused or allowed the [workers] to be subjected and/or exposed to hazardous and/or harmful chemicals, substances and/or conditions.” Count IV alleged that the corporate defendants, the co-employee defendants, “and/or” the fictitiously named defendants had fraudulently made certain misrepresentations or had suppressed certain facts touching and concerning the safety of the factory and the chemicals used therein. The thrust of counts I and IV, then, is to allege that the co-employee defendants and/or the workers’ “employer” or “employers” — whether they be the corporate defendants, the co-employee defendants, or the fictitiously named defendants — acted in such a way as to cause the workers various bodily injuries, including “injuries to their head[s], eyes, nose[s], respiratory systems, chest[s] and/or ... an increase in the risk and/or likelihood of other adverse conditions,” as well as incidental and consequential damage. The workers’ use of alternative pleading language in their complaint thus assumes that they will be able to prove that one or more members of the class of defendants that includes the corporate defendants and the fictitiously named defendants (ie., the workers’ employers as opposed to the co-employee defendants) breached duties owed to the workers in the course of the workers’ labor at the factory.

Article 3 of the Act, subject to certain exceptions involving smaller employing entities that are exempted by statute (see generally Ala.Code 1975, § 25-5-50), mandates that “compensation ... be paid by the employer ... in every case of personal injury or death of his or her employee caused by an accident arising out of and in the course of his or her employment, without regard to any question of negligence.” Ala.Code 1975, § 25-5-51. Similarly, pursuant to Article 4 of the Act, disablement and death of employees from occupational diseases are treated by the Act as stemming from accidental injuries and are similarly compensable. See AIa.Code 1975, § 25-5-111. However, the right to compensation afforded to employees under the Act is, by statute, exclusive. The Act provides:

“Except as provided in this chapter [ie., the Act], no employee of any employer subject to [the Act], nor the personal representative, surviving spouse, or next of kin of the employee shall have a right to any other method, form, or amount of compensation or damages for an injury or death occasioned by an accident or occupational disease proximately resulting from and while engaged in the actual performance of the duties of his or her employment and from a cause originating in such employment or determination thereof.”

Ala.Code 1975, § 25-5-52. Similarly, Ala. Code 1975, § 25-5-53, provides, in pertinent part:

“The rights and remedies granted in [the Act] to an employee shall exclude all other rights and remedies of the employee, his or her personal representative, parent, dependent, or next of kin, at common law, by statute, or otherwise on account of injury, loss of services, or death. Except as provided in [the Act], no employer shall be held civilly liable for personal injury to or death of the employer’s employee, for purposes of [the Act], whose injury or death is due to an accident or to an occupational disease while engaged in the service or business of the employer, the cause of which accident or occupational disease originates in the employment.”

We have had the opportunity to consider the scope of those exclusivity provisions previously. In Beard v. Mobile Press Register, Inc., 908 So.2d 932 (Ala.Civ.App.2004), we reviewed a judgment in favor of an employer in an action brought by the personal representative of an employee who had been murdered by a co-employee who had brought a pistol to work; in that action, the personal representative had

sought to recover damages on a number of tort-based theories of liability, including failure to supervise or discipline the co-employee, failure to instruct other employees to report threatening conduct on the part of the co-employee, and failure to provide the employee a safe workplace. We agreed with the trial court that the exclusivity provisions barred the personal representative’s tort claims against the employer, noting that, from the standpoint of the employee, the workplace shooting death was not intended or expected and, therefore, amounted to an “accident” under the Act. Id. at 937 (citing and quoting DeArman v. Ingalls Iron Works Co., 258 Ala. 205, 208-09, 61 So.2d 764, 766-67 (1952)). In Beard, 908 So.2d at 936, we acknowledged that the exclusivity provisions of the Act had been held not to apply in “certain limited cases,” such as (1) to “an employer’s ‘intentional tortious conduct, such as intentional fraud, “committed beyond the bounds of the employer’s proper role” ’ ” (quoting Hobbs v. Alabama Power Co., 775 So.2d 783, 786 (Ala.2000), quoting in turn Lowman v. Piedmont Exec. Shirt Mfg. Co., 547 So.2d 90, 95 (Ala.1989)), and (2) to “an employer’s wrongful conduct [that] ... injures an employee’s unborn child” (citing Namislo v. Akzo Chems., Inc., 620 So.2d 573, 575 (Ala.1993)).

The workers in this case seek to rely upon the first exception to the exclusivity provisions that we identified in Beard as having been carved out by Lowman and its progeny: that exception pertaining to “ ‘intentional tortious conduct ... “committed beyond the bounds of the employer’s proper role.” ’ ” The workers’ brief to this court uses the shorthand expression “intentional tort exception” to refer to the principle espoused by the Lowman line of cases that we referred to in Beard. They further urge this court to classify their claims, to the extent that the workers have alleged intentional conduct, as falling outside the scope of the exclusivity provisions of the Act.

However, and although this court has previously cited Lowman for the proposition that “claims alleging intentional tor-tious conduct are not barred by the exclusivity provision[s]” of the Act, Hiatt v. Standard Furniture Mfg. Co., 741 So.2d 407, 412 (Ala.Civ.App.1998), the scope of Lowman has been significantly circumscribed by a later decision, Ex parte Progress Rail Servs. Corp., 869 So.2d 459 (Ala.2003). Because the appellant in Beard had argued that Progress Rail was distinguishable, we briefly summarized the holding of Progress Rail in our opinion:

“In [Progress Rail ], the widower and children of an employee of a scrap-metal company who was killed in a workplace explosion brought a civil action against the employer and other defendants, seeking damages from that employer based upon allegations of an intentional and/or a willful violation of a duty to provide the employee with a safe place to work and an intentional and willful failure to hire, train, and/or supervise the employee’s coworkers. The defendant employer in Progress Rail moved to dismiss the complaint on the basis of the Act’s exclusive-remedy provisions; however, the trial court denied the employer’s motion to dismiss the complaint. The Alabama Supreme Court granted the employer’s petition for a writ of mandamus and issued a writ directing the trial court to dismiss the employer as a party to the action, determining that the Act barred the tort action notwithstanding the allegations of willful and intentional conduct.”

908 So.2d at 936. Because the appellant in Beard focused more upon the issue of the accidental nature of the employee’s death in that case, it was unnecessary in Beard to determine the precise extent to which Progress Rail affects the continuing viability of Lowman and its progeny. However, both the parties and amici curiae who have filed briefs supporting the corporate defendants’ position have argued the point at length, and we will address that question as well.

Progress Rail, as we have noted, stands for the proposition that when an employee’s claim is otherwise within the scope of the Act, the exclusivity provisions cannot be avoided by the mere expedient of alleging that the conduct of the employer giving rise to the claim was willful or intentional. In recognizing that principle, the opinion in Progress Rail distinguished Lowman, which was described as involving an employee’s claims of fraud, conspiracy to defraud, and intentional infliction of emotional distress against her employer that “[arose] out of ... refusing to allow the injured employee to seek workers’ compensation benefits for her on-the-job injury” and attempting to coerce that employee to “ ‘file her disability claim as for an off-the-job injury.’” Progress Rail, 869 So.2d at 469 (quoting Lowman, 547 So.2d at 92). Progress Rail makes clear that, regardless of the holding in Lowman that the exclusivity provisions do not apply to claims alleging “ ‘intentional tortious conduct ... committed beyond the bounds of the employer’s proper role,’ ” they do apply to bar tort claims arising from “conduct committed within the bounds of the employer’s proper role.” 869 So.2d at 470 (emphasis in Progress Rail).

Progress Rail, then, compels judicial attention to the objective nature of the particular transaction or occurrence giving rise to the injury, and it discounts the effect of subjective characterizations of the employer’s contemporaneous state of mind. Accord Harris v. Beaulieu Group, LLC, 394 F.Supp.2d 1348, 1356 (M.D.Ala.2005) (“When the employee’s injury is covered under the Act, the Act does not allow the employee to circumvent its provisions and seek a tort remedy based on an assertion that the employer’s conduct was willful.”). When it can objectively be ascertained that an injury “arisfes] out of and in the course of ... employment” (§ 25-5-50) and that the injury is not expected or intended on the employee’s part, pleading or proof of an intent on the part of the employer to injure will not remove the case from the scope of the Act and its exclusivity provisions. As Judge Moore correctly surmised in his treatise on workers’ compensation law, after Progress Rail, “it should be assumed that Alabama law no longer allows intentional fraud actions against employers,” at least when such a fraud claim is “premised on a covered injury caused by the willful or intentional conduct of the employer.” 2 Terry A. Moore, Alabama Workers’ Compensation § 20:18 (West 2010 Supp.).

In this case, at bottom, the workers have alleged that their injuries stem from conduct, statements, or silence of the corporate defendants as to workplace conditions. Such conduct, even if proved, would fall within the employer’s role under the Act: to “employf] another to perform a service” in exchange for wages. Ala.Code 1975, § 25-5-1(4). The workers in this case allege that they have suffered bodily injuries by virtue of exposure to hazardous conditions in the workplace, not that they have been injured by means of coercion occurring outside the scope of employment (as was alleged to have occurred in Low-man, in which the gravamen of the fraud claim stemmed from postinjury coercive practices). Neither do we view Painter v. McWane Cast Iron Pipe Co., 987 So.2d 522 (Ala.2007), and Soti v. Lowe’s Home Ctrs., Inc., 906 So.2d 916 (Ala.2005), as compelling a contrary conclusion to that reached by the trial court and this court; both opinions simply recognize the principle that not all fraudulent conduct that could conceivably be alleged to have been committed by an employer will fall within the exclusivity provisions. Properly understood, the gloss placed upon Lowman and its progeny by cases that broadly state that intentional-tort claims against employers fall outside the scope of the Act are best viewed through the lens that Progress Rail provides, and we do not hesitate to conclude that the workers’ claims against the corporate defendants in this case fall within the scope of the Act and its exclusivity provisions.

Based upon the foregoing facts and authorities, we affirm the judgment of the trial court.

AFFIRMED.

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

      . At the time that the Dallas Circuit Court entered its order dismissing the workers’ tort claims in July 2009, 90 workers had appeared as plaintiffs.

      . The corporate defendants assert in their brief to this court that counsel for the workers has filed four other actions in three counties containing similar claims against other corporate entities; however, the record is silent as to that matter.

      . We note, in passing, that the workers’ fourth amended complaint was "simply too late” to the extent that it attempted to reassert counts I, II, and IV against the corporate defendants after the trial court had directed the entry of a final judgment as to the dismissal of those counts. Friddle v. Raymond, 575 So.2d 1038, 1040 (Ala.1991).


text:
    ELLIOTT BUILDERS, INC., et al. v. TIMBERCREEK PROPERTY OWNERS ASSOCIATION et al.
    2090754.
    Court of Civil Appeals of Alabama.
    June 17, 2011.

      Thomas M. O’Hara and William G. Cha-son of McDowell Knight Roedder & Sledge, LLC, Mobile, for appellants.
    James B. Pittman, Jr., and Jennifer L. Evans of James B. Pittman, Jr., P.C., Daphne, for appellees.
   PITTMAN, Judge.

This appeal, transferred to this court pursuant to Ala.Code 1975, § 12-2-7(6), seeks review of an order of the Baldwin Circuit Court granting a motion for a summary judgment filed by the Timbercreek Property Owners Association (“TPOA”), the board of directors of TPOA, and the Timbercreek Architectural Review Board (“TARB”) in one of two consolidated cases in the Baldwin Circuit Court involving certain property owners in a residential subdivision in Baldwin County. We dismiss the appeal as having been taken from a void order.

In June 2007, Elliott Builders, Inc., brought an action against TPOA and TARB in the trial court, which was assigned case no. CV-07-900390 (“the 2007 action”), seeking declaratory relief and damages arising out of those defendants’ alleged wrongful conduct with respect to their failure to approve the construction of a retaining wall on a lot located in the subdivision; the defendants filed an answer denying liability and asserted a counterclaim seeking declaratory and injunctive relief against Elliott Builders and Chris Elliott, an individual owner of a lot in the subdivision who was named as an additional defendant in the counterclaim. In July 2008, Elliott Builders filed a motion for a summary judgment in the 2007 action; in September 2008, an amended complaint was filed in which Chris Elliott asserted claims against the defendants in the 2007 action. TPOA and TARB filed a motion for a summary judgment as to all claims in the 2007 action. Both of those summary-judgment motions were denied in November 2008. In April 2009, Elliott Builders and Chris Elliott filed, without leave of court, a second amended complaint in the 2007 action adding new tort claims, adding a claim under the Alabama Litigation Accountability Act, Ala.Code 1975, § 12-19-270 et seq., and restating other claims previously presented; TPOA and TARB filed an amended answer and counterclaim challenging the procedural propriety of the second amended complaint, asserting defenses to the plaintiffs’ claims, and restating claims against the plaintiffs.

In July 2009, TPOA, its board of directors, and TARB filed a “motion to consolidate” in which they averred that, in April 2009, four other plaintiffs (Robert M. Hoover, John C. Brutkiewicz, Lucille M. Dean, and Paul C. Davis) had brought a separate civil action seeking injunctive relief against them in the trial court, an action that had been assigned case no. CV-09-900412 (“the 2009 action”); the mov-ants requested that the 2007 action and 2009 action be consolidated because of the purported existence of common legal and factual questions. The trial court apparently granted the relief requested because the record contains a motion filed by the plaintiffs in the two actions seeking separate trials in which the plaintiffs acknowledge that a consolidation order had been entered in the 2009 action. It also appears that, in an amended complaint filed in the 2009 action in July 2009, Chris Elliott, Elliott Builders, and Sterling Hershiser joined as plaintiffs in the 2009 action, although the record does not contain that amended pleading. In September 2009, TPOA, its board of directors, and TARB filed an answer and asserted counterclaims in the 2009 action seeking injunctive relief, declaratory relief, and damages for an alleged breach of contract; that pleading stated claims against, among other parties, Hoover (who apparently had been dropped as a plaintiff in the 2009 action) and his wife (who had never been a plaintiff in either action).

In July 2009, a new round of dispositive motions began. First, in that month, the plaintiffs in the 2009 action filed a summary-judgment motion (which does not appear in the record). Elliott Builders and Chris Elliott moved in August 2009 for the entry of a partial summary judgment in their favor as to various claims and counterclaims in the 2007 action. TPOA, its board of directors, and TARB filed responses to those motions and filed a motion for a summary judgment as to the claims asserted in the plaintiffs’ “amended complaint” (apparently, the amended complaint filed in the 2009 action); the motion did not seek a summary judgment as to any counterclaim. The plaintiffs in both cases moved to strike various evidentiary exhibits that were filed in support of the summary-judgment motion filed by TPOA, its board of directors, and TARB, as well as those defendants’ filings in opposition to the August 2009 partial-summary-judgment motion filed by Chris Elliott and Elliott Builders. Finally, it appears that four of the plaintiffs in the 2009 action (Hoover, Brutkiewicz, Dean, and Davis) were permitted in September 2009 to voluntarily dismiss, without prejudice, their claims in the 2009 action; although the order granting those parties’ request does not appear in the record, a motion filed by TPOA, its board of directors, and TARB sought amendment of that dismissal order to direct that the dismissal be with prejudice.

On November 17, 2009, the trial court, in the 2007 action, simultaneously rendered and entered, by transmitting electronic documents to the State Judicial Information System (“SJIS”), four orders. Two of the orders denied motions to strike that had been filed by the plaintiffs; one order denied the partial-summary-judgment motion filed by Elliott Builders (and Chris Elliott); and a fourth order granted the summary-judgment motion filed by TPOA, its board, and TARB. Because the orders did not adjudicate all claims as to all parties in the 2007 action, the orders were not final and appealable. See Rule 54(b), Ala. R. Civ. P.

On December 18, 2009, Chris Elliott and Elliott Builders moved the trial court for the express direction of the entry of a final judgment as to the denial of their August 2009 partial-summary-judgment motion in the 2007 action. On December 23, 2009, a notice of appeal was filed on behalf of the “Plaintiffs,” identified in the style solely as “Robert M. Hoover, et al.” from the “Summary Judgment in favor of Defendants” (which, as we have noted, was entered in response to a motion directed to the amended complaint in the 2009 action, not the 2007 action). That appeal, pursuant to § 12-2-7(6), Aa.Code 1975, was transferred to this court, where it was assigned case no. 2090361. This court called for supplemental briefs from the parties regarding whether a final, appeal-able judgment had been entered. Replies to that order indicated that the trial court, on January 29, 2010, had directed the entry of a final judgment in the 2007 action as to the denial of the August 2009 partial-summary-judgment motion filed by Chris Elliott and Elliott Builders. The “Appellants/Plaintiffs” (listed as being Brutkiew-icz, Dean, Davis, Chris Elliott, and Elliott Builders) filed a motion to voluntarily dismiss the appeal in case no. 2090361, and this court entered an order granting that motion on March 11, 2010.

Rule 41, Aa. R.App. P., provides that, in the absence of an appellate court’s order to the contrary, that court’s certificate of judgment finally terminating appellate proceedings in a case will not issue contemporaneously with the entry of a judgment in the case, but will be withheld for either 18 days or until final disposition of a rehearing application and/or final action upon a certiorari petition, whichever is later. It is well settled that a judgment of an intermediate appellate court in this state “ ‘is not final until that court issues its certificate of judgment.’ ” Ex parte Tiongson, 765 So.2d 643, 643 (Ala.2000) (quoting Jackson v. State, 566 So.2d 758, 759 n. 2 (Ala.1990)). This court’s certificate of judgment in case no. 2090361 did not issue until March 29, 2010. However, before this court’s jurisdiction over the ease had ceased, counsel for the plaintiffs in both the 2007 action and the 2009 action filed a request for an “expedited” hearing to be held on March 23, 2010, to issue further orders in the two cases. On March 25, 2010, again before this court’s certificate of judgment in case no. 2090361 had been issued, the trial court rendered an order purporting (a) to “grant[] by order of 11/16/09” (sic; actually November 17, 2009) the summary-judgment motion filed by TPOA, its board of directors, and TARB in the 2009 action; (b) to deny the September 2009 partial-summary-judgment motion filed by Elliott Builders and Chris Elliott in the 2007 action; (c) to deny the summary-judgment motion filed by the plaintiffs in the 2009 action; (d) to deny the plaintiffs’ motions to strike evidentiary exhibits filed by the defendants; and (e) to direct the entry of a final judgment as to the March 25, 2010, order. The 2007 action and 2009 action were also ordered deconsolidated, and the trial court stated that the 2009 action would remain on the trial court’s docket. That order, issued on a separate paper, was not immediately transmitted to SJIS, but was entered four days later. See Rule 58(c), Ala. R. Civ. P.

On May 5, 2010, within the time specified in Rule 4(a), Ala. R.App. P., for taking an appeal from a final judgment, a notice of appeal was filed by “Plaintiffs,” again identified in the style solely as “Robert M. Hoover, et al.,” as to the “Summary Judgment in favor of Defendants.” That appeal, following its transfer to this court pursuant to Ala. Code 1975, § 12-2-7(6), has been assigned case no. 2090754 by this court. The second notice of appeal differs from the notice of appeal filed in case no. 2090361, which refers to the case number of the 2007 action (CV-07-900390), because the current notice of appeal refers to the case number in the 2009 action (CV-09-900412). However, a motion filed in this case seeking to incorporate the record from case no. 2090361 into the record on appeal in this case (which this court granted on May 18, 2010) belies the significance of that facial distinction. That motion identifies the appellants as Brutkiewicz, Dean, Davis, Chris Elliott, and Elliott Builders (as well as Hershiser, who was not listed in the voluntary-dismissal motion in case no. 2090361), and the appellants notably admit in that motion that they “previously appealed [from] the trial court’s order granting [a] summary judgment in favor of Defendants” and that that appeal was case no. 2090361.

After a careful examination of the record on appeal following the submission of this case for decision, we must conclude, ex mero motu, that there is no valid final judgment that will support our appellate jurisdiction; thus, we must dismiss the appeal in this case. See Bibb v. Boyd, 417 So.2d 206, 208 (Ala.Civ.App.1982). As we have noted, the remaining plaintiffs in the 2009 action, on December 23, 2009, attempted to appeal from the trial court’s nonfinal order of November 17, 2009, granting the summary-judgment motion filed by TPOA, its board of directors, and TARB as to the amended complaint in the 2009 action. This court granted, on March 11, 2010, the plaintiffs’ motion for a voluntary dismissal of that appeal (case no. 2090361); however, the plaintiffs then sought an “expedited” hearing in the trial court during the continued pendency of the first appeal, and, on March 25, the trial court purported to render an order pursuant to Rule 54(b) directing the entry of a final judgment as to the very summary-judgment ruling that was still in the breast of this court, awaiting notice of any potential rehearing application or certiorari petition.

“It is well settled that ‘[o]nce an appeal is taken, the trial court loses jurisdiction to act except in matters entirely collateral to the appeal.’ ” Portis v. Alabama State Tenure Comm’n, 863 So.2d 1125, 1126 (Ala.Civ.App.2003) (quoting Ward v. Ullery, 412 So.2d 796, 797 (Ala.Civ.App.1982)). On the date that the trial court purported to “finalize” its November 17, 2009, order — ie., attempted to make final its order granting the summary-judgment motion filed by TPOA, its board of directors, and TARB, in the 2009 action— jurisdiction as to that November 17, 2009, order was not then in that court. See Foster v. Greer & Sons, Inc., 446 So.2d 605, 607-09 (Ala.1984) (trial court cannot retroactively confer finality upon a nonfi-nal judgment through use of Rule 54(b) certification after appeal had already been taken from the nonfinal judgment; only the appellate court can restore such jurisdiction via a limited remand). Thus, even though the “ministerial act” of recording the trial court’s Rule 54(b) order in SJIS fortuitously occurred on the same date that this court issued its certificate of judgment (March 29, 2010), the “judicial pronouncement of’ the Rule 54(b) order took place when the trial judge did not have jurisdiction to act as to the November 17, 2009, summary-judgment order (see generally Rule 58, Ala. R. Civ. P., Committee Comments on 1973 Adoption); thus, that order is void and will not support an appeal. Bibb, supra.

For the reasons stated herein, we dismiss the appeal as being from a void judgment. After this court’s certificate of judgment in this appeal is issued, the trial court will again have jurisdiction, pursuant to Rule 54(b), to determine whether to direct the entry of a final judgment as to any order adjudicating less than all claims as to all parties for which there may be no just reason for delay in seeking appellate review. In reaching this conclusion, we necessarily reject the appellees’ view that the appeal should be dismissed as having been untimely filed.

APPEAL DISMISSED.

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

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

      . The record does not reflect that the trial court acted on that motion.

      . Foster was overruled on other grounds by Ex parte Andrews, 520 So.2d 507 (Ala.1987).


author: MOORE, Judge.

text:
    Dianne Loftin BROOKE v. Herbert Wilson BELLISLE, Jr.
    2090670.
    Court of Civil Appeals of Alabama.
    June 24, 2011.

      Clifford W. Cleveland of Cleveland & Colley, P.C., Prattville, for appellant.
    Charles W. Edmondson and Joseph Lister Hubbard of Charles W. Edmondson, P.C., Montgomery, for appel-lee.
   MOORE, Judge.

Dianne Loftin Brooke (“the former wife”) appeals from a judgment of the Montgomery Circuit Court (“the trial court”) establishing the current child-support arrearage of Herbert Wilson Bellisle, Jr. (“the former husband”). We dismiss the former wife’s appeal.

The former wife and the former husband were divorced by a judgment of the trial court on April 26, 1974. That divorce judgment ordered the former husband to pay child support in the amount of $200 per month. On May 7, 1975, the trial court entered an order concluding that the former husband was $1,350 in arrears on his child-support obligation and reducing his monthly child-support obligation to $100 per month; the former husband was further ordered to pay $50 per month toward his arrearage.

On July 1, 1997, the former wife filed a petition to show cause, alleging that the former husband was $20,060 in arrears on his child-support payments. On August 20, 1997, the trial court entered an order stating that there had been an oral agreement between the parties that there would be no further child support paid, but it noted that the parties were prohibited by law from orally vacating the former husband’s child-support obligations. The trial court allowed a $400 credit to the former husband for a period during which the parties’ child lived with the former husband and entered a judgment in favor of the former wife in the amount of $19,960 for unpaid child support. The trial court ordered the former husband to pay $100 per month until the arrearage was paid in full. An order of continuing income withholding was entered on August 20, 1997, instructing the former husband’s employer to withhold $100 per month from the former husband’s income until the $19,960 judgment was paid in full.

On September 8, 1997, the former wife filed a motion to alter, amend, or vacate the trial court’s order, asserting that the trial court had failed to calculate 12% interest into the arrearage and that the payments of $100 per month would never satisfy the arrearage amount plus interest; she requested that the 12% interest be calculated and added to the arrearage amount and that the amount of the monthly payments be increased or, in the alternative, that a new trial be granted. On October 29,1997, the trial court entered an order finding the former husband in arrears in the amount of $42,256.33, including interest. The trial court further ordered the former husband to pay $350 per month toward that arrearage.

On November 3,1997, the parties filed a joint motion to amend the trial court’s judgment, asserting that they had reached an agreement to allow the former husband to pay $200 per month toward the arrear-age and $50 per month toward the interest thereon for one year, after which the former husband would begin paying $200 per month toward the arrearage and $150 per month toward the interest thereon. The trial court entered a judgment granting that joint motion on November 4, 1997. The trial court entered a withholding order in accordance with that judgment.

On September 30, 2009, the former husband filed a petition, supported by his affidavit, seeking the termination of the income-withholding order. The former wife filed an objection to the former husband’s petition. On December 17, 2009, the trial court entered a judgment finding that the balance of the former husband’s child-support arrearage was $8,749.63 and ordering the former husband to continue paying $350 per month until that amount was paid in full; the trial court ordered that the income-withholding order be reissued to the former husband’s employer. The former wife filed a motion to alter, amend, or vacate the judgment on December 22, 2009. The former husband filed a response to the former wife’s motion on December 30, 2009, an additional response on January 22, 2010, and a brief in opposition to the former wife’s motion on February 3, 2010. On February 18, 2010, the trial court entered an order denying the former wife’s postjudgment motion.

On March 3, 2010, the former husband filed a motion for the immediate termination of the income-withholding order and the garnishment of his wages, asserting that he had deposited the sum of $8,060 with the clerk of the court, satisfying the arrearage judgment. On March 8, 2010, the trial court entered an order terminating the garnishment and income-withholding order based on the former husband’s payment of the outstanding judgment.

On April 16, 2010, the former wife filed a notice of appeal to this court. On appeal, the former wife argues that the trial court erred in the December 17, 2009, judgment in determining the balance of the former husband’s child-support arrearage to be $8,749.63.

Although neither party has raised the issue of this court’s jurisdiction, “jurisdictional matters are of such significance that an appellate court may take notice of them ex mero motu.” Kennedy v. Merriman, 963 So.2d 86, 88 (Ala.Civ.App.2007). “The timely filing of a notice of appeal is a jurisdictional act.” R.J.G. v. S.S.W., 42 So.3d 747, 751 (Ala.Civ.App.2009). Rule 4(a)(1), Ala. R.App. P., provides, in pertinent part:

“Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3[, Ala. R.App. P.,] shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.... ”

The time for an appeal may be extended, however, in cases, such as the present case, in which a party filed a timely post-judgment motion. Deal v. Deal, 55 So.3d 270, 272 (Ala.Civ.App.2010). “If a party files a timely postjudgment motion, the party has 42 days from the denial of the postjudgment motion to appeal a final judgment.” Deal, 55 So.3d at 272.

In the present case, the former wife filed a timely postjudgment motion from the trial court’s December 17, 2009, judgment, which determined the balance of the former husband’s child-support arrear-age. That motion was denied on February 18, 2010. The relief requested in the former husband’s March 3, 2010, motion was not directed toward amending the trial court’s December 17, 2009, judgment and did not request a new trial; thus, it was not a postjudgment motion that tolled the time for taking an appeal. See Deal, 55 So.3d at 272. Thus, the former wife’s appeal, in order to be timely, must have been filed within 42 days from February 18, 2010, i.e., on or before April 1, 2010. The former wife did not file her notice of appeal of the trial court’s judgment establishing the former husband’s arrearage until April 16, 2010, outside the 42-day period. Thus, the former wife’s appeal was untimely filed. “An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” Rule 2(a)(1), Ala. R.App. P. See also Deal, 55 So.3d at 273. We, therefore, dismiss the former wife’s appeal.

APPEAL DISMISSED.

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


author: PER CURIAM.

text:
    Lana M. HENDERSON v. Henry A. HENDERSON.
    2090821.
    Court of Civil Appeals of Alabama.
    June 24, 2011.
    See 800 So.2d 595.

      Donna Wesson Smalley, Jasper, for appellant.
    Roger H. Bedford, Jr., of Bedford, Rogers & Bowling, P.C., Russellville, for ap-pellee.
   PER CURIAM.

Lana M. Henderson (“the former wife”) appeals from a judgment of the Marion Circuit Court that, among other things, purported to limit or abrogate certain garnishment orders applicable to assets of, and to prospectively modify the periodic-alimony obligation of, Henry A. Henderson (“the former husband”). We affirm the judgment in part, we reverse the judgment in part, and we remand the cause for further proceedings.

These parties are no strangers to appellate litigation. See Henderson v. Henderson, 800 So.2d 595 (Ala.Civ.App.2000) (“Henderson I ”); Ex parte Henderson (No. 2030814, August 3, 2004), 919 So.2d 333 (Ala.Civ.App.2004) (table) (“Henderson II ”); and Henderson v. Henderson (No. 2040453, December 23, 2005), 975 So.2d 1024 (Ala.Civ.App.2005) (table) (“Henderson III”). In May 1999, in case number DR-98-5032, the Marion Circuit Court entered a judgment that, among other things, divorced the parties, divided the parties’ real and personal property, and denied the former wife periodic alimony and any interest in the former husband’s retirement account. The former wife appealed to this court, arguing that the trial court had erred in refusing to award to her periodic alimony; in failing to divide the former husband’s retirement funds, and in failing to award to the former wife an attorney fee. In Henderson I, this court reversed the trial court’s judgment and instructed that court, on remand, to award the former wife periodic alimony, a portion of the former husband’s retirement benefits, and an attorney fee. In Henderson II, we granted a mandamus petition filed by the former wife in which she had sought an order directing the trial court to enter a final judgment responsive to this court’s mandate in Henderson I.

In response to our rulings in Henderson I and Henderson II, the trial court entered a judgment that, as finally amended in January 2005, provided that the former husband was to pay the former wife $600 in monthly periodic alimony; that that obligation was retroactive to the date that Henderson I was decided; that no interest would accrue as to that arrearage; that the former husband’s $83,000 alimony ar-rearage either could be immediately discharged or could be satisfied by payments of $400 per month; that the former wife would be entitled to one-half of the former husband’s pension payments (to be paid to her pursuant to the terms of a qualified domestic-relations order directed to the administrator of the pension plan); and that the former husband was to pay the former wife an attorney fee of $23,537.24. The former husband appealed from that judgment; in Henderson III, we affirmed that judgment without an opinion. A review of the former husband’s brief filed in this court in Henderson III indicates that, although the former husband challenged, among other things, the trial court’s award of attorney fees and the propriety of the retroactive periodic-alimony award, no legal authority was cited in his appellate brief in support of his contentions; our no-opinion order of affirmance cited, among other cases, Tucker v. Cullmam-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003), which holds that a failure to argue an issue, with citation to applicable authority, is tantamount to a waiver of that issue on appeal. The former husband’s certiorari petition seeking review of our judgment of affirmance was struck in March 2006. After this court’s certificate of judgment in Henderson III was issued, the former wife sought and obtained orders of garnishment (dated April 28, 2006) with respect not only to the former husband’s pension, but also to his benefits payable by the United States Social Security Administration.

The case giving rise to this appeal, case number DR-98-5032.01, apparently originated in June 2006 with the former husband’s filing, through new counsel, of a petition to modify the parties’ divorce judgment; although no copy of that petition appears in the record, the electronic case-action-summary sheet indicates that the former husband asserted a “claim of exemption” and an “objection” to garnishment. The case-action-summary sheet further indicates that the former wife sought sanctions against the former husband for his alleged contempt of court, opposed the former husband’s contentions regarding the propriety of garnishment, and sought an award of attorney fees for the period after May 1999. A hearing was held on the parties’ claims in August 2006. In October 2007, again according to the case-action-summary sheet, the former husband filed a second motion in which he sought to temporarily stop the garnishment of his Social Security benefits; the former wife filed a response to that motion (which does appear in the record) in which she asserted that the former husband’s claim of exemption from garnishment was not well taken and that the former husband was in contempt for not paying alimony currently due. After receiving arguments and briefs from the parties, the trial court, on July 7, 2008, ruled that “all Motions/Petitions pending[ ] as of the day of this Order[ ] are hereby denied.” Although the former husband timely filed a motion to alter, amend, or vacate the trial court’s July 7, 2008, judgment denying all relief sought by the parties in case no. DR-98-5032.01, that motion was denied by operation of law. See Rule 59.1, Ala. R. Civ. P. No appeal was taken by either party.

In July 2009, the former wife filed a motion in which she sought an amendment to the garnishment order directed to the administrator of the former husband’s pension; in that filing, the former wife requested simply that future payments be directed to the former wife’s home address. The trial court granted the former wife’s motion on July 27, 2009. The former wife then filed a similar motion seeking an amendment to the garnishment order directed to the Social Security Administration in which the former wife requested that future Social Security payments garnished from the former husband’s account be directed to the former wife’s home address; the trial court initially granted that motion, but it rescinded that ruling and set the matter for a hearing after the former husband filed an objection to garnishment on August 20, 2009. After a hearing, the trial court entered a judgment on January 12, 2010, that denied the former wife’s contempt petition; quashed further garnishment of the former husband’s Social Security benefits; limited further garnishment from the former husband’s pension to no more than 25 percent of his monthly benefit; specified that all previous payments by the former husband were to be allocated first to alimony, then to accrued attorney fees, then to any arrearages; and directed that the former husband’s periodic-alimony obligation would be reduced to $200 per month starting in October 2009 and would terminate in October 2010. The former wife appeals.

The former wife first argues that the trial court erred in failing to find the former husband in contempt. We note, however, that the former wife’s brief reveals her most recent contempt claim to be based on the same alleged conduct of the former husband between 1999 and 2005, and the same testimony elicited in the August 2006 hearing, that was presented for the trial court’s consideration by her earlier contempt petition; notwithstanding that evidence, the trial court’s July 7, 2008, omnibus judgment denying all claims pending at that time declined to find the former husband in contempt, and the former wife did not appeal from that judgment. Because that aspect of the trial court’s July 7, 2008, judgment was not presented to this court for review, that provision is now binding, and the trial court could properly have concluded that the former wife’s attempt to prolong litigation regarding the contempt issue by reasserting it in a subsequent, duplicative petition, rather than by properly seeking appellate review, should be rejected. See Transcall Am., Inc. v. Comtel-Birmingham, Inc., 571 So.2d 1051, 1052 (Ala.1990). Further, because the trial court properly denied the contempt petition, the condition precedent to the former wife’s contention that Ala.Code 1975, § 30-2-54, mandates an award of attorney fees is also absent.

Just as the trial court’s judgment of July 7, 2008, bars the former wife from relitigating certain issues, however, that judgment likewise bars the former husband from again contesting the propriety of the garnishment orders as to his pension and his Social Security benefits. A judgment entered in a garnishment proceeding has all the properties of, and qualities of finality of, any other civil judgment. Wyers v. Keenon, 762 So.2d 353, 355 (Ala.1999). In this case, the former husband had the opportunity to raise the issue that all or part of the payments due him from his pension or from the Social Security Administration were not subject to garnishment at the behest of the former wife. See also Rule 64B, Ala. R. Civ. P. However, the trial court’s judgment of July 7, 2008, denying all then pending petitions and motions finally adjudicated the former husband’s exemption claims and objections to garnishment. The former husband did not appeal from that judgment, and the trial court, therefore, erred in its January 12, 2010, judgment by allowing the former husband, in lieu of taking that appeal, a “second bite of the apple” — i.e., an impermissible collateral attack on the July 7, 2008, judgment — as to his garnishment objections and exemption claims, especially when the sole relief sought by the former wife was two simple changes of payment addresses, relief that did not reopen the propriety of the garnishments themselves. See Ex parte Edmondson, 451 So.2d 290, 293 (Ala.1984) (domestic-relations judgments, regular on their faces, are immune from collateral attack). To the extent that the trial court modified and abrogated its garnishment orders in its January 12, 2010, judgment, including its specifications as to allocations of moneys previously paid, it erred as a matter of law (as to which matters the ore tenus presumption of correctness, cited by the former husband, does not apply, see Hinton v. Pollock Motor Car Co., 659 So.2d 649, 650 (Ala.Civ.App.1995)), and we reverse the judgment as to that issue.

We reach a similar conclusion regarding the former wife’s contention that the trial court improperly prospectively reduced the former husband’s alimony obligation. Although a decision to modify an award of periodic alimony is generally within the sound discretion of the trial court, see, e.g., Beatty v. Beatty, 991 So.2d 761, 767 (Ala.Civ.App.2008), a trial court acts in a manner inconsistent with “due process and fair play” by modifying a spousal-support obligation sua sponte in the absence of a petition to modify a support judgment or, at the least, an oral request seeking a modification. Price v. Price, 442 So.2d 121, 122-23 (Ala.Civ.App.1983). We agree with the former wife that there was no evidence presented to the trial court at the hearing on the former wife’s motions to amend and the former husband’s objection to garnishment that would support a conclusion that the former husband’s ability to pay alimony or the former wife’s need for continued alimony payments had materially changed. To that extent, as well, the trial court’s judgment of January 12, 2010, was in error.

Based upon the facts and authorities we have set forth herein, the January 12, 2010, judgment of the trial court is affirmed as to the denial of the former wife’s contempt petition and as to the denial of a supplemental award of attorney fees. As to the termination of garnishment as to the former husband’s Social Security benefits, the reduction of garnishment as to the former husband’s pension benefits, and the reduction and subsequent termination of the former husband’s alimony obligation, that judgment is reversed. The cause is remanded for further proceedings consistent with this opinion. The former wife, who has prevailed as to some of the issues presented, is awarded an attorney fee of $1,500 in connection with the services of her counsel on appeal.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

All the judges concur.

      . A reporter’s note to the official report of Henderson I reveals (a) that "[o]n July 21, 2000, the Supreme Court granted Henry A. Henderson’s petition for certiorari review (docket no. 1991497)”; (b) that "on December 15, 2000, the parties filed a 'notice of reconciliation’ and (c) that on December 27, 2000, the supreme court treated that "notice of reconciliation” as a motion to dismiss the certiorari petition and granted that motion. Henderson I, 800 So.2d at 599.

      . Notably, the former wife did not cross-appeal as to the provision in the judgment holding that the $33,000 alimony arrearage would not accrue interest. Because that provision was not presented for review in Henderson III, that provision is now binding under the "law of the case" doctrine. See Scrushy v. Tucker, 70 So.3d 289, 304 (Ala.2011) (noting that a party is precluded from relitigating, after an appeal, matters that should have been, but were not, raised on appeal).

      . In response to a motion filed in this appeal by the former wife, we ruled that we would take judicial notice of the records in the previous proceedings involving these parties to the extent that drey pertained to the issues involved in this appeal.

      . Rule 53(d), Ala. R.App. P., provides that an order of affirmance by which a judgment is affirmed by this court without an opinion may properly be referenced to establish “the application of the doctrine of law of the case, res judicata, collateral estoppel, double jeopardy, or procedural bar.”

      . Both parties have impermissibly attempted to cure omissions from the appellate record by attaching exhibits to their appellate briefs. Those exhibits have been disregarded. E.g., Slepian v. Slepian, 355 So.2d 714, 716 (Ala.Civ.App.1977).

      . Although the former wife also contends that an award of fees would have been appropriate under Ala.Code 1975, § 12-19-271, a portion of the Alabama Litigation Accountability Act ("ALAA”), we note that the former wife asserted no ALAA claim in the trial court. We will not reverse a trial court’s judgment based upon an argument not first presented to that court.

      . That would necessarily include the former husband’s contention that Ala.Code 1975, § 6-10-7, which speaks to exemptions from garnishment for "wages, salaries, or other compensation of laborers,” encompasses pension payments.

      . We, being a court of review, decline the former wife’s invitation, advanced in her reply brief, to mandate the voiding of alleged fraudulent conveyances on the part of the former husband. Any such relief, if appropriate, must first be sought in the trial court. See Brown v. Transportation Ins. Co., 448 So.2d 348, 349 (Ala.1984).