author: BRYAN, Judge. THOMPSON, Presiding Judge,

text:
    Richard PRESLEY and Joy Presley v. B.I.C. CONSTRUCTION, INC., Brandon Grant, and Michael Roberts.
    2080286.
    Court of Civil Appeals of Alabama.
    Sept. 4, 2009.

      John F. Whitaker and Douglas H. Bryant of Whitaker, Mudd, Simms, Luke & Wells, LLC, Birmingham, for appellants.
    Robert B. Stewart and A. Joe Peddy of Smith, Spires & Peddy, P.C., Birmingham, for appellees.
   BRYAN, Judge.

The plaintiffs below, Richard Presley and Joy Presley, appeal from a judgment as a matter of law (“JML”) entered in favor of the defendants below, B.I.C. Construction, Inc. (“B.I.C.”), Brandon Grant, and Michael Roberts. We affirm.

In May 2007, the Presleys were building a new house (“the house”) for themselves; Richard Presley was acting as the general contractor. The Presleys negotiated with B.I.C., a corporation operated by Grant and Roberts, regarding the framing of the house, the building of a deck frame and front steps for the house, and the installation of the doors and the windows in the house. During the negotiations, B.I.C. told the Presleys that it would provide, at cost, the materials for the framing of the house, the materials for the building of the deck frame and front steps, and the doors and windows to be installed in the house. B.I.C. also told the Presleys that it would charge a fee for the labor to perform the framing of the house, the building of the deck frame and front steps, and the installation of the doors and windows. Furthermore, B.I.C. told the Presleys that it would provide them with copies of the invoices it received from its suppliers for the materials it used in performing its work.

B.I.C. recommended that the Presleys select Silver Line Anderson windows (“Silver windows”) because they were the best available vinyl windows. On May 21, 2007, B.I.C. obtained a quote from Birmingham Sash & Door (“Birmingham Sash”), the supplier that B.I.C. normally used for doors and windows, for particular doors and Silver windows to install in the house. Birmingham Sash quoted a total price of $4,459.19 for the doors and Silver windows. The Presleys selected the Silver windows and, on May 26, 2007, entered into a written contract (“the May 26 contract”) with B.I.C.

In the May 26 contract B.I.C. agreed to frame the house, to build the deck frame and front steps, and to install the doors and windows in a workmanlike manner. The Presleys agreed to pay B.I.C. a fee in the amount $9,540 for its labor in performing its work under the May 26 contract and to pay B.I.C. the cost of the materials used in framing the house, the materials used in building the deck frame and front steps, and the doors and windows up to stated maximum amounts. The May 26 contract specified a maximum cost that the Presleys would pay for the materials to frame the house of $14,602.82, a maximum cost that the Presleys would pay for the materials to build the deck frame and front steps of $1,786.98, and a maximum cost that the Presleys would pay for the doors and windows of $4,459.19. Soon after executing the May 26 contract, the parties orally agreed that B.I.C. would provide the labor to pour the concrete slab of the house for $2,160; apparently, this oral agreement was never reduced to writing.

On May 29, 2007, three days after the parties entered into the May 26 contract, the Presleys gave B.I.C. a check in the amount of $4,459.19 for the doors and windows that were to be installed in the house. After receiving the Presleys’ check in the amount of $4,459.19, B.I.C. placed an order with Birmingham Sash for the doors and Silver windows the Presleys had selected. When B.I.C. placed the order with Birmingham Sash, a dispute existed between B.I.C. and Birmingham Sash regarding B.I.C.’s account; Birmingham Sash insisted that B.I.C. owed Birmingham Sash a balance on its account whereas B.I.C. insisted that its account was current. Despite the existence of this dispute, B.I.C. understood that Birmingham Sash would order the doors and Silver windows for the Presleys’ house.

On May 30, 2007, the Presleys gave B.I.C. a check in the amount of $7,400, which constituted a partial payment for the materials to be used in framing the house. B.I.C. ordered the materials to be used in framing the house and building the deck frame and front steps from Brown Lumber & Building Supply, Inc. (“Brown Lumber”). The cost of those materials totaled $11,397.42; B.I.C. obligated itself to pay Brown Lumber this amount.

In June 2007, B.I.C. began pouring the concrete slab for the house. After pouring the slab, B.I.C. discovered that the concrete that had been poured to form the slab had included one truck load that had begun to cure before it was poured and that the inclusion of the partially cured concrete had caused defects in the slab. B.I.C. attempted unsuccessfully to correct the defects in the slab.

B.I.C. framed the house in June 2007. The Presleys were dissatisfied with the framing because, despite the fact that the house plans specified that the main living area of the house should be framed for eight-foot ceilings, B.I.C. had framed it for nine-foot ceilings. Nonetheless, on June 29, 2007, the Presleys gave B.I.C. a check in the amount of $8,540, which represented payment of most of B.I.C.’s fee for performing its work under the May 26 contract — the Presleys withheld $1,000 of the fee because the house had not yet passed the final framing inspection.

When B.I.C. contacted Birmingham Sash to see if the doors and Silver windows had arrived, B.I.C. learned that Birmingham Sash had not ordered the doors and Silver windows because of the dispute regarding B.I.C.’s account. B.I.C. then asked Brown Lumber to obtain doors and windows that were as similar as possible to the ones that B.I.C. had ordered from Birmingham Sash. Brown Lumber obtained doors and windows that cost $3,514.49; the windows obtained by Brown Lumber were “Jordan” windows instead of Silver windows. With the $3,514.49 cost of the doors and windows, B.I.C. became obligated to pay Brown Lumber a total of $14,911.91 for the materials used in performing BJ.C.’s work under the May 26 contract.

On July 5, 2007, B.I.C. installed the doors and the Jordan windows provided by Brown Lumber. Before installing the doors and the Jordan windows provided by Brown Lumber, B.I.C. did not inform the Presleys that it had been unable to obtain the doors and Silver windows from Birmingham Sash, that it had asked Brown Lumber to obtain doors and windows that were as similar as possible to the doors and windows that Birmingham Sash was supposed to provide, or that it was going to install Jordan windows in the house instead of Silver windows. The Presleys went to the job site on July 5, 2007, and observed that B.I.C. had installed Jordan windows in the house because the windows had stickers on them identifying them as Jordan windows.

Following B.I.C.’s installation of the doors and windows on July 5, the Presleys sent B.I.C. a letter ordering B.I.C. to leave the job site, and B.I.C. obeyed the order. B.I.C. performed no more work after July 5, 2007, and the Presleys paid B.I.C. no more money. The three payments the Presleys had made to B.I.C. on May 29, May 30, and June 29 totaled $20,399.19.

On August 27, 2007, B.I.C. sent the Presleys a final invoice requesting payment in the amount of $9,022.50. The invoice reflected a credit of $484.66 for unused lumber and a credit of $3,705 for the estimated cost of repairing the defects in the concrete slab that B.I.C. had poured. Along with the August 27 letter, B.I.C. enclosed a copy of the May 21 quote they had obtained for doors and Silver windows from Birmingham Sash; B.I.C. did not enclose a copy of the invoice for the doors and Jordan windows Brown Lumber had provided. The Presleys did not pay B.I.C. any money as a result of the August 27 invoice.

In February 2008, the Presleys obtained a certificate of occupancy for the house and moved into the house.

In September 2007, the Presleys sued B.I.C., Grant, and Roberts (collectively referred to as “the defendants”). As finally amended, the Presleys’ complaint stated claims of breach of contract, breach of implied warranty of habitability, negligence, wantonness, misrepresentation, suppression, theft by deception, and unjust enrichment. The gravamen of the Pres-leys’ claims of breach of contract, breach of implied warranty of habitability, negligence, and wantonness was that B.I.C.’s work on the house did not conform to the contract and was not performed in a workmanlike manner. The gravamen of the Presleys’ misrepresentation and suppression claims was that the defendants had misled the Presleys into believing (1) that B.I.C. was qualified to perform the work it had agreed to perform on the house and (2) that B.I.C. would install particular doors to be provided by Birmingham Sash and Silver windows in the house. The gravamen of the Presleys’ theft-by-deception claim was that the defendants had fraudulently induced the Presleys to pay for work and materials that did not conform to the May 26 contract. The gravamen of the Presleys’ unjust-enrichment claim was that the defendants had retained money the Presleys had paid them for work and materials that did not conform to the contract. The Presleys sought to recover damages for the diminution in value of the house allegedly caused by the defendants’ failure to perform in accordance with the May 26 contract and in a workmanlike manner. The Presleys also sought to recover damages for mental anguish they had allegedly suffered as a result of the defendants’ alleged breach of contract, misrepresentation, and suppression. In addition, the Presleys sought restitution of money they had allegedly paid the defendants for work and materials that did not conform to the May 26 contract.

The defendants denied liability, and the action proceeded to trial before a jury. During the Presleys’ case-in-chief, Joy Presley, on direct examination, testified as follows regarding (1) how much the fair market value of the house would have been if the house had been constructed in accordance with the May 26 contract and (2) how much the fair market value of the house was as actually constructed:

“Q. Do you have a judgment as to the fair market value of that house if it had been done in accordance with the plans and specifications and the way you had contracted to do it?
“A. Yes, sir.
“Q. What’s that?
“A. $170,000.
“Q. And do you have an opinion about what the fair market value is now as a result of the — all those features that you didn’t get and the problems that you have had?
“A. Yes, sir, 74,000.”

On cross-examination, Joy Presley testified as follows regarding those opinions:

“Q. ... Your belief as you’re on the stand there, is that this house right here (indicating) the house you and your husband live in should be worth 170,000 and is only worth 74?
“A. Yes, sir.
“Q. Almost a hundred thousand dollars decrease in value on this home?
“A. Yes, sir, I do.
“Q. And that’s your belief; correct?
“A. Well, it’s based on some things, yes, sir.
“Q. Okay. You had said earlier that you thought the home — the fair market value for the home would have been $170,000?
“A. Yes, sir.
“Q. And you think it’s worth to you only 74,000; is that right?
“A. Well, you asked me what the fair market value is and the documents that I got from Jefferson County, that’s what they think it’s worth. So that’s what I base my opinion on.”

(Emphasis added.) The record indicates that the “documents” from Jefferson County that Joy Presley was referring to in her testimony was the assessment of the ad valorem taxes on the Presleys’ property prepared by the Jefferson County Tax Assessor (“the tax assessor’s assessment”). After Joy Presley testified that she had based her opinion of the fair market value of the house as actually constructed on the tax assessor’s assessment, the trial court struck that opinion on the ground that the tax assessor’s assessment was not admissible evidence of the fair market value of the house.

On redirect examination, Joy Presley again testified that it was her opinion that the fair market value of the house as actually constructed was $74,000, and the trial court again struck that opinion because it was based on the inadmissible tax assessor’s assessment.

The Presleys then sought to recall Richard Presley as a witness to testify regarding his opinion of the fair market value of the house as actually constructed. Counsel for the defendants, however, sought and obtained leave from the trial court to question Richard Presley on voir dire examination outside the presence of the jury. Richard Presley testified on voir dire as follows:

“Q. [Counsel for the defendants]: Mr. Presley, do you have an opinion as to what the fair market value of your home is as it sits there today?
“A. Yes, sir, my opinion, yes, sir.
“Q. What is your opinion as to the value of your home as it sits there today?
“A. About $170,000.
“Q. And what is your opinion—
“A. I’m sorry, excuse me. Sorry. As it sits, no. That would be the fair market value that I would place on it.
“Q. Well, what’s your opinion as to fair market value of your home as it sits there today?
“A. As it sits with all of the repairs it needs, my opinion would be probably 74, 75,000.
“Q. What is your opinion based on?
“A. Just considering all of the things that need to be done to that house to make it like what we wanted it to be. “Q. Where did you come up with that number, $74,000, how’d you get there?
“[Counsel for the Presleys]: He said 74, 75,1 think.
“Q. How did you come up with the number of 74,000 to 75,000? How did you come up with that value?
“A. Just my opinion of what it would take to make that house be what it should be.
“Q. Well, do you know what fair market value means?
“A. I know what it’s insured for, I don’t know—
“Q. Do you know what it means? What fair market value means?
“A. To who?
“Q. Do you know what the word fair mark[et] value means?
“A. I have a basic understanding, yes, sir.
“Q. What is that understanding?
“A. What the house would bring to someone that really [wanted] that kind of house, I guess.
“Q. So in other words, the value of that home is what somebody else would pay for it; correct?
“A. It would have to be the house that they wanted.
“Q. I understand, but we’re talking about people in the market; correct?
“[Counsel for the Presleys]: He’s arguing with him, Your Honor. He’s already given his understanding of what fair market value is and it’s much better than what I could have given in a law book.
“[Counsel for the defendants]: Your Honor, just so we’re clear, this is voir dire, this is not testimony. The man doesn’t know what fair market value is. He’s trying to say $74,000 is the value based upon what he thinks it’s going to take to do all the things he wants to do to it. So in other words, he’s taking what he thinks the fair market value is of 170,000 and he’s reducing it by all of the things he thinks he needs to do to it. But he’s not testified as to what fair market value is. So therefore, I’m entitled to know what he thinks fair market value means.
“THE COURT: Proceed.
“Q. What do you think fair market value means, Mr. Presley?
“A. It would mean the value of a home to a [prospective] buyer, in his eyes, what he would be willing to give for that particular real estate.
“Q. Okay. And do you [have] any basis to believe that any other buyer would choose to lower the ceilings in your home to eight feet?
“A. Say that again, please?
“Q. Do you know what somebody would pay for this house on the open market as it sits there today?
“A. No, sir, I don’t.
“Q. Okay. And, in fact — where are you getting these numbers from that you think that you’re going to have to spend to fix your house up to get it the way that you wanted?
“A. I’m trying to visualize and realize all the construction time, you know, it would take and move in expenses and our living expenses and everything involved to get it to [the] house that we actually contracted them to build.
“Q. Where are you getting these numbers from, is it coming from the estimates and stuff you have that you got from the concrete people and window people?
“A. Just from past experiences, just estimates I guess or guesstimates.
“Q. Guesstimates?
“A. In my opinion, yes, sir.
“Q. Now, you remember when I ask[ed] you if you had an opinion as to value of your home back during your deposition?
“A. Vaguely, yes, sir.
“Q. Let me show you your deposition, transcript. Would you take a look at page 115 of your deposition transcript for me?
“A. Okay.
“Q. Okay. Now, I asked you, do you think that the house ... as it sits there, the one that you and your wife now live in, has any value? What did you tell me[?]
“A. Has any value? Yes, sir.
“Q. And I said you don’t have an opinion what that is? What did you tell me?
“A. That I’m not an appraiser and I don’t know the value.
“Q. And I said, do you think that the house with nine foot ceilings on the main living area is worth more than a house with eight foot ceilings? What did you tell me?
“A. Not to me.
“Q. And then I said, what about on the market in general and the real estate market, do you have any knowledge? What did you tell me?
“A. No knowledge.”

(Emphasis added.) Counsel for the defendants then objected to Richard Presley’s testifying before the jury regarding his opinion of the fair market value of the house as actually constructed on the ground that he did not actually have an opinion of its fair market value, i.e., the price at which a willing seller and a willing buyer would agree to a sale of the house, and the trial court sustained the objection.

The Presleys rested their case-in-chief without offering any other evidence establishing the fair market value of the house as actually constructed. Consequently, although the jury had before it Joy Presley’s opinion that the house would have had a fair market value of $170,000 if it had been constructed in accordance with the contract and in a workmanlike manner, it did not have before it any evidence establishing the fair market value of the house as actually constructed. Thus, the evidence before the jury did not establish that the failure of B.I.C. to construct the house in accordance with the contract and in a workmanlike manner had diminished the fair market value the house would have had if it had been constructed in accordance with the May 26 contract and in a workmanlike manner.

After the Presleys rested their case-in-chief, the defendants moved the trial court for a JML. The trial court heard the arguments of counsel regarding the motion and then orally granted the motion.

Subsequently, the trial court entered a written order granting the motion and explaining its rationale. The trial court stated that the defendants were entitled to a JML with respect to the Presleys’ claims of breach of contract, negligence, wantonness, misrepresentation, and suppression because the Presleys had failed to introduce substantial evidence proving an essential element of those claims, i.e., damage. The trial court explained that the Presleys had failed to prove that the failure of B.I.C. to construct the house in accordance with the May 26 contract and in a workmanlike manner had diminished the fair market value the house would otherwise have had. The trial court also stated that the Presleys could not recover damages for mental anguish because they had not introduced evidence establishing that the defendants’ breach of contract involved defects in the construction that had rendered the house virtually uninhabitable, as required by Baldwin v. Panetta, 4 So.3d 555 (Ala.Civ.App.2008). The trial court stated that the defendants were also entitled to a JML with respect to the misrepresentation and suppression claims insofar as they were based on the allegation that the defendants had misled the Presleys into believing that B.I.C. was qualified to perform its work because the Presleys had failed to introduce substantial evidence tending to prove that B.I.C. was not qualified. The trial court stated that the defendants were entitled to a JML with respect to the Presleys’ misrepresentation and suppression claims insofar as they were based on the allegation that the defendants had misled the Presleys into believing that B.I.C. would install particular doors to be obtained from Birmingham Sash and Silver windows because the Pres-leys had failed to prove two of the essential elements of promissory fraud, i.e., (1) that the defendants intended not to install those doors and windows at the time they indicated that B.I.C. would install them and (2) that the defendants intended to deceive the Presleys when they indicated that B.I.C. would install those doors and windows. The trial court stated that the defendants were also entitled to a JML with respect to the Presleys’ claim of wantonness because the Presleys had failed to introduce substantial evidence indicating that the defendants had acted wantonly. In addition, the trial court stated that the defendants were entitled to a JML with respect to the Presleys’ unjust-enrichment claim because the Presleys had failed to introduce substantial evidence indicating that, as a result of fraud or mistake, the Presleys had paid the defendants money to which the defendants were not entitled. Finally, the trial court stated that it was granting the motion for a JML with respect to the claims of breach of an implied warranty of habitability and theft by deception because the Presleys had conceded that the motion was due to be granted with respect to those claims.

Following the entry of the trial court’s written order granting the defendants’ motion for a JML, the Presleys timely appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

“The standard of review of a motion for a JML is well established:
“ ‘When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992).... A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996).’ ”

DCH Healthcare Auth. v. Duckworth, 883 So.2d 1214, 1217 (Ala.2003) (quoting Delchamps, Inc. v. Bryant, 738 So.2d 824, 830-31 (Ala.1999)). “[Sjubstantial 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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

The Presleys have not argued in their brief on appeal that the trial court erred in granting the motion for a JML with respect to (1) their claim of breach of contract insofar as it sought recovery of damages for mental anguish; (2) then-claims of misrepresentation and suppression insofar as those claims were based on allegations that the defendants had misled the Presleys into believing that B.I.C. was qualified to perform its work and that the defendants had misled the Presleys into believing that B.I.C. would install particular doors to be obtained from Birmingham Sash in the house; (3) their claim of breach of implied warranty of habitability, and (4) their claim of theft by deception. Therefore, we treat those claims as having been abandoned by the Presleys, and we affirm the trial court’s judgment with respect to them. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (“In his brief to this Court Tucker ... never expresses disagreement with the dismissal of his fraud claim or the summary judgment as to his claim alleging ‘other wrongful conduct.’ Apparently, he has elected not to pursue those claims. ‘When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala.1982).' Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996). ‘An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief. Ex parte Riley, 464 So.2d 92 (Ala.1985).’ Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988). Accordingly, we treat the fraud claim and the claim alleging ‘other wrongful conduct’ as having been abandoned by Tucker, and we affirm the judgments as to those claims.”); see also Newson v. Protective Indus. Ins. Co. of Alabama, 890 So.2d 81, 86 (Ala.2003) (“[O]n appeal the Newsons do not argue their claim against PIICO for negligent or wanton hiring, training, and supervision, and thus the Newsons abandon this claim.”).

The Presleys first argue that, because they were the owners of the house, they were entitled to express their opinion of the fair market value of the house as actually constructed and that, therefore, the trial court erred in rejecting their opinions on that subject.

“It is well-settled that any person, including a layman, is competent to testify to his opinion concerning the value of land if he has had an opportunity for forming a correct opinion and testifies in substance that he has done so. State v. Woodham, 292 Ala. 363, 294 So.2d [740] (1974). The owner of land, by virtue of his ownership, is considered prima facie qualified to testify to its value without any further showing. Shelby County v. Baker, 269 Ala. 111, 110 So.2d 896 (1959).”

State v. Steele, 374 So.2d 325, 329 (Ala.1979).

Joy Presley testified that, in her opinion, the house had a fair market value as actually constructed of $74,000; however, she indicated, on cross-examination, that her opinion was based solely on the value used by the tax assessor in assessing the Presley’s property for ad valorem taxes. Although a tax-assessment record may overcome a hearsay objection because it qualifies as a public record for purposes of Rule 803(8), Ala. R. Evid., it nonetheless is not admissible to establish the fair market value of property. See State v. Griffith, 292 Ala. 123, 124-25, 290 So.2d 162, 163-64 (1974), and 2 Charles W. Gamble, McElroy’s Alabama Evidence § 267.04 (5th ed.1996).

“A tax assessing authority’s record of land value assessment would likely qualify, over a hearsay objection, as a public record....
“A tax assessment record, however, is not guaranteed admission just because it surmounts a hearsay objection. Alabama courts have long embraced the principle that generally the tax assessing authority’s evaluation is not relevant when offered to prove market value. The rationale underlying this general exclusionary rule is that ‘it is notorious that properties are not assessed at anything like true value or market value.’ This principle, however, results in the exclusion of such a tax record only when offered to prove market value.”

2 C. Gamble, McElroy’s Alabama Evidence § 267.04 (footnotes omitted).

Although the owner of land is prima facie competent to testify regarding its value, prima facie competence, by definition, can be rebutted. See Black’s Law Dictionary 1224 (8th ed.2004) (“rebuttable presumption. An inference drawn from certain facts that establish a prima facie case, which may be overcome by the introduction of contrary evidence. — Also termed prima facie presumption.... ”). By testifying that she had based her opinion regarding the fair market value of the house as actually constructed solely on the tax assessor’s inadmissible valuation of the Presleys’ property, Joy Presley rebutted her own presumption of competence. Accordingly, we conclude that the trial court did not err in rejecting her opinion regarding the fair market value of the house as actually constructed. See State v. Steele, supra; State v. Griffith, supra; and 2 C. Gamble, McElroy’s Alabama Evidence § 267.04.

The dissent contends that “[t]he fact that [Joy Presley’s] opinion was based on a tax assessment would go to the weight of the evidence, not its admissibility.” 64 So.3d at 626. Given that Joy Presley indicated that the tax assessor’s inadmissible assessment was the sole basis for her opinion regarding the fair market value of the house as actually constructed, the effect of the dissent’s position would be to accord Joy Presley an irrebuttable presumption of competence to testify regarding the value of her property merely because she is one of its owners. But the law only accords the owner of property a prima facie, or rebuttable, presumption of competence. See State v. Steele, supra. As noted above, Joy Presley herself rebutted the presumption that she was competent to express an opinion regarding the fair market value of her property as actually constructed by testifying that the sole basis of her opinion was the tax assessor’s inadmissible assessment.

Richard Presley testified that he did not have an opinion regarding the fair market value of the house as actually constructed. Accordingly, Richard Presley also rebutted his own prima facie presumption of competence to testify regarding the fair market value of the house as actually constructed. Id. Accordingly, we conclude that the trial court did not err in rejecting Richard Presley’s opinion regarding the fair market value of the house as actually constructed.

The Presleys also argue that the trial court erred in granting the defendants’ motion for a JML with respect to their claims of breach of contract, negligence, misrepresentation, and suppression on the ground that the Presleys had failed to prove damage, an essential element of each of those claims. See State Farm Fire & Cas. Co. v. Williams, 926 So.2d 1008, 1013 (Ala.2005) (“In order to prevail on a breach-of-contract claim, a plaintiff must establish: (1) the existence of a valid contract binding the parties, (2) his own performance under the contract, (3) the defendant’s nonperformance under the contract, and (4) resulting damages. State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293 (Ala.1999).” (emphasis added)); Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330, 335 (Ala.2006) (“Damages are an essential element of the tort of negligence. ‘ “ ‘[P]roof of damage [is] an essential part of the plaintiffs case.’ ” ’ Ex parte Stonebrook Dev., L.L.C., 854 So.2d 584, 589 (Ala.2003) (quoting Matthews Bros. Constr. Co. v. Stonebrook Dev., L.L.C., 854 So.2d 573, 578 (Ala.Civ.App.2001), quoting in turn William C. Prosser, Handbook of the Law of Torts § 30 (4th ed.1971)).”); Luck v. Primus Auto. Fin. Servs., Inc., 763 So.2d 243, 245-46 (Ala.2000) (“A party alleging fraud by misrepresentation must prove four elements: (1) that the defendant made a false representation concerning an existing material fact; (2) that the defendant made that misrepresentation while knowing that it was false, or made it recklessly, or made it with no knowledge as to its truth or falsity; (3) that the plaintiff reasonably relied on the misrepresentation; and (4) that the plaintiff incurred damage proximately caused by the reliance. Ex parte Government Employees Ins. Co., 729 So.2d 299, 304 (Ala.1999).” (emphasis added)); and Drummond Co. v. Walter Indus., Inc., 962 So.2d 753, 783 (Ala.2006) (“In State Farm Fire & Casualty Co. v. Owen, 729 So.2d 834 (Ala.1998), this Court recognized that in order to establish a fraudulent-suppression claim, a plaintiff must show: ‘(1) [T]hat [the defendants] had a duty to disclose an existing material fact; (2) that [the defendants] suppressed this material fact; (3) that [the defendants’] suppression of this fact induced [the plaintiff] to act or to refrain from acting; and (4) that [the plaintiff] suffered actual damage as a proximate result.’ 729 So.2d at 837.” (emphasis added)). Specifically, the Presleys argue that they proved the element of damage with respect to each of those claims because they introduced admissible evidence in the form of the opinions of the Presleys establishing the diminution in the value of the house allegedly caused by the defendants’ breach of contract, negligence, misrepresentation, and suppression. However, because we conclude, for the reasons discussed above, that the trial court did not err in rejecting the Presleys’ opinions regarding the fair market value of the house as actually constructed, we find no merit in the Presleys’ argument that they proved damage in the form of the diminution in value of the house.

In addition to contending that the Presleys proved the element of damage with respect to their claims of breach of contract and negligence through Joy Presley’s opinion regarding the diminution in the fair market value of the house, the dissent also contends that the Presleys proved the element of damage by introducing substantial evidence indicating (1) “that the house as constructed was of lower quality than the house they had hired B.I.C. to build” and (2) “that they had to pay for repairs to the house.” 64 So.3d at 627. However, we cannot reverse the JML on the basis of arguments that the Presleys did not present to the trial court in opposition to the motion for a JML. See Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000) (“[T]he appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment.” (citing Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992) (emphasis omitted))). In opposing the motion for a JML, the Presleys did not argue to the trial court that they had proved the element of damage with evidence indicating that the house that was built was of lower quality than the one they had hired B.I.C. to build or with evidence indicating that they had had to pay for repairs to the house; they only argued that they had proved it with Joy Presley’s opinion regarding the diminution in the fair market value of the house. The following quote taken from their counsel’s argument in opposition to the motion for a JML epitomizes the Presley’s position regarding their proof of the element of damage:

“With regard to the contract claims, Your Honor, and the negligent claims in the construction, the measure of damages in the breach of contract claim, not breach of contract, not breach of warranty but in the breach of contract, we contracted this work, they failed to do this work. We testified to the before and after value, so we testified — they were contracted to put in eight foot ceilings, to do slab work, to square it out, and for windows and doors. They failed on each of those incidences. We were damaged as a result of it. The market value, the diminution in value of our property was testified to by Mrs. Presley and in light most favorable to my clients, those claims for breach of contract, count number 1, negligence, and wantonness, count number 3, I believe. Unjust enrichment — our claims that should remain in the case if Your Honor makes the determination that — that the fair market value is evidence that can come in.”

(Emphasis added.) Thus, because the Presleys did not argue to the trial court that they had proved the element of damage with evidence indicating that the house that was built was of lower quality than the one they had hired B.I.C. to build or with evidence indicating that they had had to pay for repairs to the house, we cannot reverse the trial court’ judgment on the basis of those arguments. See Ex parte Ryals, supra.

The Presleys also argue that, with respect to their claims of willful misrepresentation and willful suppression, they proved damage in the form of mental anguish. The defendants, on the other hand, argue that the Presleys have waived this argument because they did not present it to the trial court in opposition to the defendants’ motion for a JML. The Presleys counter by arguing in their reply brief that they sufficiently raised the argument by including a prayer for damages for mental anguish in the ad damnum clause of their claims of misrepresentation and suppression in their complaint. However, as noted above, we can consider an argument attacking the validity of a JML only to the extent that it was presented to the trial court before or at the time of submission of the motion for a JML. See Ex parte Ryals, supra. The Presleys’ prayer for damages for mental anguish in the ad damnum clause of their claims of misrepresentation and suppression in their complaint was not tantamount to opposing the defendants’ motion for a JML on the ground that the Presleys had proved damage with respect to their claims of willful misrepresentation and willful suppression because they had proved that they had suffered mental anguish. Id. Therefore, we cannot consider such an argument on appeal. Id.

The Presleys do not argue that they proved damage in any other form. Therefore, they have waived any such argument they may have had. See Tucker v. Cullman-Jefferson Counties Gas Dist., supra.

The Presley’s third argument is that the trial court erred in concluding that the Presleys had failed to prove a prima facie case of misrepresentation or suppression insofar as the Presleys based those claims on allegations that the defendants misled the Presleys into believing that B.I.C. would install Silver windows. However, this argument is unavailing because, as we explained above, the trial court correctly concluded that the Presleys had failed to prove damage, which is an essential element of claims of misrepresentation and suppression. See Luck v. Primus Auto. Fin. Servs., Inc., supra; and Drummond Co. v. Walter Indus., Inc., supra.

The Presleys’ fourth argument is that the trial court erred in granting the defendants’ motion for a JML with respect to the Presleys’ wantonness claim on the ground that the Presleys had failed to prove that the defendants acted wantonly. Devoting less than one page of their brief to this argument, the Presleys merely argue in a conclusory fashion that “the defendants acted consciously and intentionally in failing to follow the approved plans with respect to the height of the ceilings; knowingly failed to purchase [the] proper windows and doors; and failed to properly construct and/or supervise the construction of the concrete slab.”

“ ‘ “ ‘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)....”””

Ex parte Essary, 992 So.2d 5, 9-10 (Ala.2007) (quoting Tolbert v. Tolbert, 903 So.2d 103, 114-15 (Ala.2004), quoting in turn 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 omitted).

In the case now before us, the evidence indicated that the defendants’ failure to perform their work in accordance with the May 26 contract and in a workmanlike manner resulted from a lack of due care rather than a conscious act or omission. Therefore, we find no merit in the Pres-leys’ argument that the trial court erred in granting the defendants’ motion for a JML with respect to the Presleys’ wantonness claim. See Ex parte Essary, supra.

The Presleys’ final argument is that the trial court erred in concluding that they had failed to prove a prima facie case of unjust enrichment. The Presleys argue that they proved a prima facie ease of unjust enrichment because, they say, they introduced substantial evidence establishing that, through fraud or mistake, they paid B.I.C. $4,459.19 for doors and windows while B.I.C. purchased lesser quality doors and windows for $3,514.49 and unjustly retained the difference in the amount of $944.70. Thus, according to the Presleys, they proved that B.I.C. had been unjustly enriched in the amount of $944.70.

The defendants, on the other hand, argue that the trial court properly granted their motion for a JML with respect to the Presleys’ unjust-enrichment claim because the evidence established that B.I.C.’s expenses for materials used in the construction of the house as a whole exceeded the amount the Presleys paid B.I.C. for those expenses.

“In order for a plaintiff to prevail on a claim of unjust enrichment, the plaintiff must show that
“ ‘the “ ‘defendant holds money which, in equity and good conscience, belongs to the plaintiff or holds money which was improperly paid to defendant because of mistake or fraud.’ ” Dickinson v. Cosmos Broad. Co., 782 So.2d 260, 266 (Ala.2000) (quoting Hancock-Hazlett Gen. Constr. Co. v. Trane Co., 499 So.2d 1385, 1387 (Ala.1986)).... “The doctrine of unjust enrichment is an old equitable remedy permitting the court in equity and good conscience to disallow one to be unjustly enriched at the expense of another.” Battles v. Atchison, 545 So.2d 814, 815 (Ala.Civ.App.1989).’
“Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1123 (Ala.2003). “ ‘One is unjustly enriched if his retention of a benefit would be unjust.’” Welch v. Montgomery Eye Physicians, P.C., 891 So.2d 837, 843 (Ala.2004) (quoting Jordan v. Mitchell, 705 So.2d 453, 458 (Ala.Civ.App.1997)). The retention of a benefit is unjust if
“ ‘ “(1) the donor of the benefit ... acted under a mistake of fact or in misreliance on a right or duty, or (2) the recipient of the benefit ... engaged in some unconscionable conduct, such as fraud, coercion, or abuse of a confidential relationship. In the absence of mistake or misreliance by the donor or wrongful conduct by the recipient, the recipient may have been enriched, but he is not deemed to have been unjustly enriched.” ’
“Welch, 891 So.2d at 843 (quoting Jordan, 705 So.2d at 458). The success or failure of an unjust-enrichment claim depends on the particular facts and circumstances of each case. Heilman, supra,

Mantiply v. Mantiply, 951 So.2d 638, 654-55 (Ala.2006) (emphasis omitted).

The evidence established that the Pres-leys paid B.I.C. a total of $11,859.19 for the cost of lumber, doors, and windows. The evidence further established that B.I.C. obligated itself to pay Brown Lumber a total of $14,911.91 for the materials used to frame the house, the materials used to build the deck frame and front steps, and the doors and windows. Thus, the amount that B.I.C. obligated itself to pay Brown Lumber for materials it incorporated into the house exceeded the amount that the Presleys paid B.I.C. for those materials by $3,052.72. Accordingly, the trial court did not err in concluding that the Presleys had failed to establish that B.I.C. had been unjustly enriched.

For the reasons discussed above, we affirm the judgment of the trial court.

AFFIRMED.

THOMAS and MOORE, JJ., concur.

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

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

THOMPSON, Presiding Judge,

concurring in part and dissenting in part.

Because I believe the trial court erred in entering a judgment as a matter of law in favor of B.I.C. Construction, Inc., Michael Roberts, and Brandon Grant (hereinafter collectively “B.I.C.”) on the Presleys’ claims of breach of contract and negligence, I must respectfully dissent.

In entering a judgment as a matter of law, the trial court found that Richard Presley and Joy Presley could not sustain their claims of breach of contract and negligence because they had failed to prove damages. Specifically, the trial court found that the Presleys had failed to show that the value of their house was diminished in any way as a result of B.I.C.’s breach of contract or negligence. A majority of this court agreed with the trial court, holding that because Joy Presley based her opinion of the value of the house, as constructed, on the value the tax assessor had placed on the house, her opinion was to be rejected. Both the trial court and the majority apparently concluded there was no other evidence from which to determine that the value of the house had been diminished because of B.I.C.’s mistakes.

The law is well settled that a property owner is prima facie competent to testify to the value of his or her property. The majority recognizes that principle, then concludes that Joy Presley “rebutted her own presumption of competence” by basing her opinion on inadmissible evidence. 64 So.3d at 621. In support of its position, the majority relies on the definition of a rebuttable — or prima facie — presumption. I believe that the majority is confusing two distinct concepts: first, whether the witness is prima facie competent to testify and second, whether an inference drawn from certain facts establishes a prima facie case.

As with any witness, the trial court was free to give less weight to Joy Presley’s opinion as to the value of the house as constructed because she based her opinion on a tax assessment; however, I disagree that the basis of Joy Presley’s opinion made her incompetent to testify as to what she believed the value of the house was as constructed and what she believed the value of the house would have been had it been constructed pursuant to the terms of the contract. The fact that her opinion was based on a tax assessment would go to the weight of the evidence, not its admissibility; thus, I do not believe.that the Pres-leys failed to present evidence of the diminished value of the house. See, e.g., Blount County v. Campbell, 268 Ala. 548, 109 So.2d 678 (1959).

That being said, even assigning less weight to Joy Presley’s opinion as to the value of the house as constructed in recognition of the fact that a tax assessment is generally lower than the fair market value of property, I believe that the Presleys presented sufficient evidence from which the finder of fact could determine that the fair market value of the house . as constructed was less than it would have been had B.I.C. adhered to the Presleys’ plans, as called for by the contract. The undisputed evidence shows that B.I.C. did a poor job pouring the slab for the house, and the Presleys went into great detail about what had to be done to rectify the problems resulting from the job B.I.C. had done. The evidence is also undisputed that B.I.C. installed lower-quality doors and windows than what the Presleys paid to have installed. The Presleys also presented evidence indicating that the framing of the house was “out-of-square,” creating gaps between countertops and the wall. A finder of fact could reasonably have determined that the gaps were aesthetically displeasing, which would diminish the fair market value of the house.

Because of the “out-of-square” framing, the Presleys had to pay to add a ceiling joist to repair a six-inch gap between the last ceiling joist that B.I.C. had completed; they had to install extra header board across the front and back porches; they had to install wood under the overhangs of the porches; and they had to install bracing down the front and back porches. Joy Presley testified that those repairs cost between $12,000 and $13,000.

The Presleys presented substantial evi- ' dence indicating that the house as constructed was of lower quality than the house they had hired B.I.C. to build and that the diminished value was the result of B.I.C.’s breach and/or negligence. They also proved that they had to pay for repairs to the house based upon the breach and/or negligence. Because the Presleys presented substantial evidence of damages, the trial court erred in entering a judgment as a matter of law on the basis that they “failed to introduce proper evidence for a finding that the market value of their home had been reduced by ... non-performance on the part of [B.I.C.].”

Because I would reverse the judgment as to the claims of breach of contract and negligence, I respectfully dissent in part. I concur as to the affirmance of the judgment on the remaining claims.

      . The $14,911.91 included the $11.397.42 that B.I.C. had already obligated itself to pay Brown Lumber for materials used in framing the house and building the deck frame and front steps.

      . The Presleys have not raised the issue whether the cost of repairing the defects in the construction was a proper measure of damages in this case and have not presented argument regarding that issue; therefore, they have waived that issue. See Tucker v. Cullman-Jefferson Counties Gas Dist., supra.

      . $7,400 for lumber plus $4,459.19 for doors and windows equals $11,859.19.


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    Ex parte Richard PRESLEY and Joy Presley. (In re Richard Presley and Joy Presley v. B.I.C. Construction, Inc., Brandon Grant, and Michael Roberts).
    1081764.
    Supreme Court of Alabama.
    Dec. 10, 2010.
    John F. Whitaker and Douglas H. Bryant of Whitaker, Mudd, Simms, Luke & Wells, LLC, Birmingham, for petitioners.
    Robert B. Stewart and A. Joe Peddy of Smith, Spires & Peddy, P.C., Birmingham, for respondents.
   MURDOCK, Justice.

The writ of certiorari is quashed.

In quashing the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1978).

WRIT QUASHED.

COBB, C.J., and LYONS, STUART, and BOLIN, JJ., concur.


author: PITTMAN, Judge. MOORE, Judge,

text:
    Tanya HARRIS v. TUSCALOOSA HOUSING AUTHORITY.
    2071003.
    Court of Civil Appeals of Alabama.
    Dec. 4, 2009.
    Rehearing Denied Feb. 5, 2010.
    Certiorari Denied Dec. 10, 2010 Alabama Supreme Court 1090652.
    Kenneth J. Lay, Legal Services Alabama, Inc., Birmingham; and Ricky T. Chambless, Legal Services Alabama, Inc., Tuscaloosa, for appellant.
    Dennis Steverson, Tuscaloosa, for appel-lee.
   PITTMAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(C), Ala. R.App. P.; Rule 45, Ala. R.App. P.; Ala. Code 1975, §§ 6-6-222, 6-6-280 et seq., & 35-9A-461; Woodward v. Roberson, 789 So.2d 853, 856 (Ala.2001); Perley v. Tapscan, Inc. 646 So.2d 585, 587 (Ala.1994); Davis v. Hester, 582 So.2d 538, 540 (Ala.1991); Moss v. Hall, 245 Ala. 612, 613, 18 So.2d 368, 369 (1944); Solomon v. Rogers, 210 Ala. 423, 98 So. 370 (1923); Martin v. Patterson, 975 So.2d 984, 991-92 (Ala.Civ.App.2007); Palmer v. SunBank & Trust Co., 689 So.2d 152, 153 (Ala.Civ.App.1996); and Goldsmith v. State, 709 So.2d 1352, 1353 (Ala.Crim.App.1997).

This appeal was transferred to this court by the Alabama Supreme Court pursuant to Ala.Code 1975, § 12-2-7(6).

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

MOORE, J., concurs specially, joined by BRYAN, J.

MOORE, Judge,

concurring specially.

Tanya Harris timely appeals from a judgment entered on May 30, 2008. In that judgment, the Tuscaloosa Circuit Court (“the circuit court”) found, among other things, that Harris had “voluntarily surrendered and abandoned” the apartment she had been leasing from the Tuscaloosa Housing Authority (“THA”). Based on that finding, the circuit court denied Harris’s request for a preliminary injunction requiring THA to restore to her full possession and control of the apartment and to restrain THA from taking any retaliatory or other action to intimidate, harass, or threaten her. The circuit court further issued a writ of possession to THA.

On appeal, Harris initially argues that the circuit court violated her due-process rights by transforming the preliminary-injunction hearing into a trial on the merits. Rule 65(a)(2), Ala. R. Civ. P., specifically grants trial courts the power to consolidate a trial on the merits with an injunction hearing; however, pursuant to our caselaw, the trial court must afford the parties notice of its intent to combine the proceedings so that the parties have ample “ ‘opportunity to object, or to suggest special procedures.’ ” See Martin v. Patterson, 975 So.2d 984, 991 (Ala.Civ.App.2007) (quoting Pughsley v. 3750 Lake Shore Drive Coop. Bldg., 463 F.2d 1055, 1057 (7th Cir.1972)). Failure by a trial court to provide such notice is error, but the error will justify a reversal of the judgment only if the complaining party can demonstrate that the lack of notice has prejudiced his or her case. See Martin, 975 So.2d at 991-92.

In issuing a no-opinion order of affir-mance, the majority of the court implicitly holds either that the circuit court did not conduct a trial on the merits or that Harris has failed to show prejudice. In its May 30, 2008, judgment, the circuit court ruled that Harris had surrendered and abandoned the lease and that THA had subsequently “lawfully re-entered and took possession of the premises” to which it was entitled. The judgment does not adjudicate all Harris’s claims, but it does, at a minimum, effectively adjudicate Harris’s claims asserted in counts one, two, four, five, and six of her complaint, which allege that THA breached the lease, that she had been wrongfully evicted, ousted, and excluded from the premises, and that THA had trespassed when its employees entered the premises to change the locks. Therefore, at a minimum, the circuit court held a trial on the merits of several of Harris’s claims, and the parties should have been given notice of the circuit court’s intent to do so.

However, Harris failed to show prejudice. Harris filed a postjudgment motion to alter, amend, or vacate the May 30, 2008, judgment, but she did not present any argument as to how she had been prejudiced by the transformation of the injunction hearing into a trial on the merits. In her brief on appeal, Harris has also failed to show prejudice by indicating what additional evidence she could have presented that would have bolstered her case. The record reveals that the circuit court based its factual findings entirely on Harris’s testimony. Under those circumstances, “ ‘it is clear that consolidation did not detrimentally affect [Harris].’ ” Martin, 975 So.2d at 991-92 (quoting 11A Charles A. Wright et al., Federal Practice and Procedure: Civil § 2950 (2d ed.1995)). Hence, I agree that the judgment should not be reversed on the basis that the circuit court Consolidated the injunction hearing with a trial on the merits of some of Harris’s claims.

Harris also argues that the judgment should be reversed because, as a matter of law, she did not abandon the premises. See Bowdoin Square, LLC v. Winn-Dixie Montgomery, Inc., 873 So.2d 1091, 1100 (Ala.2003) (holding that “abandonment” requires that tenant vacate the leased premises). I note, however, that the circuit court found both that Harris had abandoned the premises and that she had surrendered the lease. Harris makes no argument in her initial brief that the circuit court erred in finding that she had surrendered the lease. Because the judgment of the circuit court would be justified under either theory, I see no need to address the merits of Harris’s abandonment argument. See Kellis v. Estate of Schnatz, 983 So.2d 408, 412-13 (Ala.Civ.App.2007) (holding that when trial court found two alternate, independent, and sufficient grounds for voiding real-estate contract, this court would not review alleged error regarding first ground when trial court’s judgment could be affirmed on second ground, which appellant did not address). Therefore, I concur in the decision not to reverse the judgment of the circuit court on the basis that the circuit court erred in finding that Harris had abandoned the premises.

Harris next argues that the circuit court exceeded its authority by granting THA a writ of possession and essentially evicting her from the leased premises. Harris basically argues that THA never filed a counterclaim seeking a writ of possession and that a circuit court has no jurisdiction to issue a writ of possession evicting a tenant from leased premises. It appears that, in fact, THA never filed any pleading requesting a writ of possession of the leased premises. However, at the trial of the case, THA, through its cross-examination of Harris, presented evidence indicating that Harris had breached the lease in October 2007 and that THA had mutually agreed with Harris in December 2007 that she would surrender the lease in exchange for THA’s agreement to forgo an eviction action. THA argued at the close of the evidence that Harris had, in fact, surrendered the lease in accordance with that agreement and that THA, therefore, was entitled to exclusive possession of the leased premises without hairing to file an eviction action. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Rule 15(b), Ala. R. Civ. P. Hence, the request for a writ of possession may be implied from the evidence.

Harris argues that, because a landlord may recover possession of leased premises following termination of the lease only -via an unlawful-detainer action, only a district court could have issued the writ of possession that the circuit court purported to issue. See Darby v. Schley, 8 So.3d 1011, 1013 (Ala.Civ.App.2008) (“By statute, original jurisdiction over unlawful-detainer actions lies in the district courts. § 6-6-350, Ala.Code 1975.... A circuit court may not exercise jurisdiction over an unlawful-detainer action until the district court has adjudicated the unlawful-detainer action and one of the parties has appealed to the circuit court.”). Harris is incorrect. Pursuant to Ala.Code 1975, § 35-9A-427, “[a] landlord may not recover or take possession of the dwelling unit by action or otherwise ..., except in case of abandonment, surrender, or as permitted in this chapter.” Hence, in cases of a surrender of leased premises covered by the Uniform Landlord and Tenant Act, Ala.Code 1975, § 35-9A-101 et seq., the landlord does not have to file an unlawful-detainer action in order to recover possession of the premises. Because the circuit court did not preside over an unlawful-detainer action, I concur that Harris’s jurisdictional argument lacks merit.

BRYAN, J., concurs.

      . Harris also attempts to appeal from two earlier orders denying her request for a waiver of the fee for making a jury demand based on her alleged indigent status. However, those orders can be reviewed by this court only by a petition for the writ of mandamus. See Ex parte Melton, 837 So.2d 819, 821 (Ala.2002); accord Goldsmith v. State, 709 So.2d 1352, 1353 (Ala.Crim.App.1997). This court has discretion to treat an appeal as a petition for the writ of mandamus. See Fowler v. Merkle, 564 So.2d 960, 961 (Ala.Civ.App.1989). However, pursuant to Rule 21(a), Ala. R.App. P., a petition for the writ of mandamus must be filed within a reasonable time, and the filing of a "motion for reconsideration” of an interlocutory order does not toll the period for filing a petition for the writ of mandamus. See Ex parte Fiber Transport, L.L.C., 902 So.2d 98 (Ala.Civ.App.2004). The circuit court entered the original order denying the waiver request on April 25, 2008, and it denied a motion to reconsider that order on May 13, 2008. Harris did not file her appeal until June 18, 2008, outside the presumptively reasonable time for filing a petition for the writ of mandamus, see Rule 21(a)(3), Ala. R.App. P. (“The presumptively reasonable time for filing a petition seeking review of an order of a trial court ... shall be the same as the time for taking an appeal.”), and she did not state any reasons in her brief to this court that would allow this court to excuse her delay in filing. Thus, I concur in this court's treatment of Harris’s appeal solely as an appeal from the circuit court's May 30, 2008, judgment and in the implicit holding that this court cannot consider the issue whether the circuit court exceeded its discretion in failing to waive the jury-demand fee.


author: THOMPSON, Presiding Judge.

text:
    J.L. v. W.E. and S.E.
    2090210.
    Court of Civil Appeals of Alabama.
    July 23, 2010.
    Rehearing Denied Sept. 10, 2010.

      Angie Slaten, Pell City, for appellant.
    Jonathan L. Adams, Talladega, for ap-pellees.
   THOMPSON, Presiding Judge.

J.L. (“the father”) appeals from a judgment finding his child, L.L. (“the child”), dependent and awarding custody of the child to W.E. and S.E. (“the maternal grandparents”).

The record indicates the following. The father and R.L. (“the mother”) divorced within a year of the birth of the child, who was born in May 2007. The mother was awarded custody of the child, and the father was granted standard visitation. In November 2008, the mother gave birth to another child (“the sibling”). The father of the sibling lives with the mother and the child whose custody is at issue in this case. In January 2009, when the sibling was two months old, he was taken to a hospital in Talladega with a broken arm and respiratory problems; he was subsequently transferred to Children’s Hospital in Birmingham. Medical staff stated that the injury to the sibling’s arm could have been accidental, but the Talladega County Department of Human Resources (“DHR”) was notified of the injury. DHR was notified a month later that the sibling was hospitalized at Children’s Hospital with what medical records described as a possibly life-threatening seizure, an intracranial hemorrhage, and 15 bone fractures “highly suggestive of nonaccidental trauma.” While the sibling remained hospitalized, the child, who showed no signs of injury, was removed from the mother’s home and placed in foster care.

On February 11, 2009, DHR filed a petition in the Talladega Juvenile Court seeking custody of the child. On February 13, 2009, after a shelter-care hearing, the juvenile court entered an order in which it determined that there was probable cause for finding the child dependent and awarded temporary custody of the child to DHR. At that time, the juvenile court ordered an evaluation of W.E., the maternal grandfather, for possible placement of the child.

On March 19, 2009, one week after learning that the child had been removed from the mother’s custody, the father filed an action for custody of the child and sought an immediate hearing on the issue. In his pleading, the father stated that he had had no notice of the prior dependency proceedings. The juvenile court then ordered an evaluation of the father’s home.

On April 7, 2009, the juvenile court held an evidentiary hearing, after which it placed the child in the home of the maternal grandparents. On June 24, 2009, the maternal grandparents filed a petition seeking custody of the child. The father filed a counterpetition. On August 21, 2009, the juvenile court held an evidentiary hearing on the parties’ petitions for custody. Evidence adduced at the trial tended to show the following.

Emily Milam, a DHR social worker involved in the child’s ease, testified that the father had been cooperative and compliant with DHR. He arrived for his visits with the child on time, and, Milam said, the father and the child had a good relationship. The maternal grandfather testified that the father appeared to be a good parent to the child. Milam testified that the father had declined parenting classes offered by DHR because the times and locations the classes were offered did not fit with his work schedule and because the father did not have a driver’s license. Mi-lam said she "viewed the father’s reasons for declining to enroll in the classes as good ones. Likewise, Milam said that she had discussed counseling with the father “in passing,” but she had not “pursue[d] it much.”

The father admitted to having been arrested twice for domestic violence. While he was married to the mother, he was arrested for domestic violence against the mother. Regarding that incident, the mother testified, she and the father had agreed to separate and that she would leave with the child. The day she was leaving, the mother said, the father changed his mind and said the mother could not leave. The mother testified that as she tried to go out through the front door, the father “[threw] her up the stairs by [her] hair.”

The father said that that case was placed on the Lincoln municipal court’s administrative docket, and the father enrolled in what appears to be a court-ordered anger-management program. The father testified that he had completed the program at the time of the evidentiary hearing in this case. He also said that he still had to report to the program every other week for the next 18 weeks. He denied that he had been convicted of that charge in the municipal court. On the other hand, the mother testified that the father had been convicted and had been ordered to serve time in jail and to participate in the anger-management program.

The father admitted that he had been convicted on a charge of domestic violence against his own mother when he was 18 years old. The father’s mother testified that the incident had occurred when she told the father to leave the house, he refused, and she shoved him. She was injured in the altercation. She said that the father called the police and that both she and the father were arrested.

Milam testified that the incidents of domestic violence, and a positive test indicating that the father had used marijuana, gave her cause for concern as to whether the father should obtain custody of the child. The father submitted to a number of drug tests while working with DHR and during the course of the litigation. The first test was positive for marijuana; the father requested a second test, the results of which were negative. The results of all other tests taken during the course of the litigation, including one taken at the request of the juvenile court at the conclusion of the hearing, were negative for illegal drugs.

At the time of the trial, the father was 29 years old and was living with his mother. The report on the evaluation DHR conducted on their home indicated that the home was “very clean,” safe, and had sufficient space for the child. The father worked during the day as a roofer; his mother worked at night at Honda. The father said that his mother and his sister would be able look after the child during the day while he worked.

The maternal grandparents had been married for 12 years at the time of the trial. The maternal grandfather, who was 50 years old, had worked for the Shelby County Commission for 20 years. He testified that he and his wife had the financial means to care for the child and added that the father had not contributed to the support of the child during the time the child had been in their custody. However, the record indicates that the father did pay the mother child support pursuant to the divorce judgment during the time the child was in the mother’s custody.

The maternal grandmother, who was approximately 44 years old at the time of the trial, had taken a leave of absence from her job as an ophthalmic technician to care for the child full time. The child had her own room at their house. The DHR evaluation indicated that the maternal grandparents’ home “was more than adequate” for a family and, like the home where the father lived with his mother, was very clean and safe. Milam testified that she had had the opportunity to observe the maternal grandparents with the child. The child and the maternal grandparents had bonded. The maternal grandparents had no reported incidents of domestic violence or use of illegal drugs.

On October 6, 2009, the juvenile court entered an order in which it found that the child was still dependent and that the mother and the father were unable to provide for the needs of the child. The juvenile court also noted that the father “ha[d] admitted to various acts of domestic violence.” Therefore, for the best interest of the child, the juvenile court ruled, custody was awarded to the maternal grandparents. The juvenile court awarded the father standard visitation. The father appeals.

The father contends that the juvenile court erred in finding the child dependent because, he says, such .a finding is not supported by clear and convincing evidence.

“Our standard of review of dependency determinations is well settled.
“ ‘A finding of dependency must be supported by clear and convincing evidence. § 12—15—65(f)[, Ala.Code 1975][]; M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala.Civ.App.1999). However, matters of dependency are within the sound discretion of the trial court, and a trial court’s ruling on a dependency action in which evidence is presented ore tenus will not be reversed absent a showing that the ruling was plainly and palpably wrong. R.G. v. Calhoun County Dep’t of Human Res., 716 So.2d 219 (Ala.Civ.App.1998); G.C. v. G.D., 712 So.2d 1091 (Ala.Civ.App.1997); and J.M. v. State Dep’t of Human Res., 686 So.2d 1253 (Ala.Civ.App.1996).’
“J.S.M. v. P.J., 902 So.2d 89, 95 (Ala.Civ.App.2004). This court has stated that clear and convincing evidence is
“ ‘ “[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”
“ ‘§ 6-11-20 [ (b) ](4), Ala.Code 1975.’
“L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002).”

L.A.C. v. T.S.C., 8 So.3d 322, 326-27 (Ala.Civ.App.2008).

“We are not allowed to substitute our judgment for that of the trial court, even when this court might have reached a different result, unless the trial court’s resolution of the facts is plainly and palpably wrong. L.R.M. v. D.M., 962 So.2d 864, 873-74 (Ala.Civ.App.2007) (citing Griggs v. Griggs, 638 So.2d 916, 918-19 (Ala.Civ.App.1994), quoting in turn Young v. Young, 376 So.2d 737, 739 (Ala.Civ.App.1979)). ‘ “[A]n appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow.” ’ Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004) (quoting Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003)). When addressing the inability of an appellate court to reweigh the evidence and substitute its judgment for that of the trial court, our supreme court recognized:
“ ‘The trial court must be allowed to be the trial court; otherwise, we (appellate court judges and justices) risk going beyond the familiar surroundings of our appellate jurisdiction and into an area with which we are unfamiliar and for which we are ill-suited — factfinding.’
“Ex parte R.T.S., 771 So.2d 475, 477 (Ala.2000).”

J.B. v. Cleburne County Dep’t of Human Res., 992 So.2d 34, 39-40 (Ala.Civ.App.2008).

Section 12-15-102(8)a., Ala.Code 1975, defines a dependent child as:

“[a] child who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:
“1. Whose parent, legal guardian, legal custodian, or other custodian subjects the child or any other child in the household to abuse, as defined in subdivision (2) of Section 12-15-301 or neglect as defined in subdivision (4) of Section 12-15-301, or allows the child to be so subjected.
“2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.
“3. Whose parent, legal guardian, legal custodian, or other custodian neglects or refuses, when able to do so or when the service is offered without charge, to provide or allow medical, surgical, or other care necessary for the health or well-being of the child.
“4. Whose parent, legal guardian, legal custodian, or other custodian fails, refuses, or neglects to send the child to school in accordance with the terms of the compulsory school attendance laws of this state.
“5. Whose parent, legal guardian, legal custodian, or other custodian has abandoned the child, as defined in subdivision (1) of Section 12-15-301.
“6. Whose parent, legal guardian, legal custodian, or other custodian is unable or unwilling to discharge his or her responsibilities to and for the child.
“7. Who has been placed for care or adoption in violation of the law.
“8. Who, for any other cause, is in need of the care and protection of the state.”

In determining whether a child is dependent, the juvenile court

“may consider any competent evidence relevant to the ability or willingness of the parent to discharge his or her responsibilities to the child, including, but not limited to, evidence of: domestic violence, see, e.g., A.W.G. v. Jefferson County Dep’t of Human Res., 861 So.2d 400 (Ala.Civ.App.2003), and B.D.S. v. Calhoun County Dep’t of Human Res., 881 So.2d 1042 (Ala.Civ.App.2008); [and] parental conduct toward other children, see, e.g., D.A. v. Calhoun County Dep’t of Human Res., 892 So.2d 963 (Ala.Civ.App.2004)....”

M.E. v. Shelby County Dep’t of Human Res., 972 So.2d 89, 100-01 (Ala.Civ.App.2007).

The procedural posture of this case is unusual, although not unique. The child was initially found dependent while in the mother’s custody. At the time the juvenile court entered its October 6, 2009, judgment in this case, the last party to have legal custody of the child was the mother. In the August 21, 2009, judgment (see supra note 2), the juvenile court again found the child to be dependent and awarded custody of the child to DHR, although the child had been physically placed with the maternal grandparents. In the October 2009 judgment, the trial court found that the child was still dependent and, at that time, awarded custody of the child to the maternal grandparents.

When the mother and the father divorced, the mother was awarded custody of the child subject to the father’s visitation rights. The evidence throughout these proceedings was undisputed that, while in the custody of the mother, the child’s months-old sibling was taken to the hospital, where it was discovered that the sibling, at three months old, had suffered an intracranial hemorrhage and 15 broken bones “highly suggestive of nonaccidental trauma.” Based upon the record before us, we conclude that the evidence supported a finding that, while with her custodial parent — the mother — the child was dependent.

As to the father, the record indicates that he has a steady job. When DHR conducted an evaluation of the home where the father lives with his mother, it found a clean and safe environment suitable for the child. The father testified that, while he is at work during the day, his mother and his sister will care for the child. He said that he generally comes home from work at about 4 p.m., and his mother, who works the night shift at Honda, does not have to be at work until 5 p.m. Therefore, the father said, he does not anticipate having to leave the child in day care.

DHR social worker Milam testified that the father had attended all of his scheduled visits with the child. When Milam has seen the father and the child together, she said, the father is loving and his behavior toward the child is appropriate. She said that the father and the child bonded quickly during their visits. The conditions involving the father that caused Milam concern as far as awarding him custody of the child were his positive test for marijuana use and instances of domestic violence against his former wife and his mother. Evidence indicates that the father had tested positive for marijuana use once but that subsequent tests administered by both DHR during the course of the litigation and at the request of the trial court at the most recent hearing were negative for illegal-drug use.

As to the domestic-violence issue, the father’s conviction for abuse involving his mother occurred 11 years before the hearing in this case. According to his mother’s testimony, she was as much to blame as the father for the altercation that led to the father’s arrest 11 years earlier, and, in fact, both of them were arrested. At the time of the hearing, the father had completed an anger-management program in connection with his arrest for domestic violence against his former wife. The maternal grandfather testified that he had never seen the father act inappropriately or abusively toward the child and that the father “seemed to be a good father” to the child. The mother acknowledged that, during her altercations with the father, the father had never done anything to hurt the child. We note that, after the episode of domestic violence that spurred the mother to call the police and have the father arrested, the mother entered into a settlement agreement of divorce, pursuant to which the father would have standard, unsupervised visitation with the child.

We are mindful that this court cannot reweigh the evidence that was before the juvenile court, and, admittedly, this is a close case. However, the record does not contain clear and convincing evidence that the father is unwilling or unable to provide for the child’s educational needs or is otherwise unable or unwilling to discharge his responsibilities to and for the child. See § 12—15—102(8)(a), Ala.Code 1975. Because the child has a parent who is willing and able to provide for her care, support, health care, and education, the judgment of dependency is improper insofar as it applies to the father.

Ordinarily, because the child has a parent willing and able to care for her, there would be no need for a dispositional phase of the matter; the child would simply return to his or her parent or parents. See J.W. v. T.D., 58 So.Sd 782, 792 (Ala.Civ.App.2010) (“There is no provision in the Alabama Juvenile Justice Act for the disposition of a child if the child is not proven to be dependent, and, in fact, the Act requires the juvenile court to dismiss the petition.”); and § 12-15-310(b), Ala. Code 1975 (“If the juvenile court finds that the allegations in the [dependency] petition have not been proven by clear and convincing evidence, the juvenile court shall dismiss the petition.”). However, pursuant to the parties’ divorce judgment, the mother had primary physical custody of the child at the time the child was found dependent. Thus, a judgment must now be entered divesting the mother of physical custody of the child based upon the finding of dependency and awarding custody to the father.

For the reasons set forth above, to the extent that the judgment of dependency applies to the father, that portion of the judgment is reversed and the cause is remanded to the trial court for entry of a judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN and THOMAS, JJ., concur.

BRYAN and MOORE, JJ., concur in the result, without writings.

      . DHR also filed a petition seeking custody of the sibling. Because the father is seeking custody of only the child, we will not discuss further proceedings as they relate to the sibling.

      . The juvenile court did not enter its written order regarding the April 9, 2009, hearing until August 21, 2009. In the August 21 order, the juvenile court again determined that the child was dependent.

      . The requirement that a finding of dependency must be supported by clear and convincing evidence before the dispositional phase of a dependency proceeding is now codified at § 12-15-311(a), Ala.Code 1975.


author: LYONS, Justice. MURDOCK, Justice

text:
    Ex parte W.E. and S.E. (In re J.L. v. W.E. and S.E.).
    1091755.
    Supreme Court of Alabama.
    Dec. 3, 2010.

      Jonathan L. Adams, Talladega, for petitioners.
   LYONS, Justice.

WRIT DENIED. NO OPINION.

COBB, C.J., and WOODALL, PARKER, and SHAW, JJ., concur.

MURDOCK, J., concurs specially.

STUART and BOLIN, JJ., dissent.

MURDOCK, Justice

(concurring specially).

I do not take issue with the result reached by the Court of Civil Appeals in its opinion in this case. J.L. v. W.E., 64 So.3d 631 (Ala.Civ.App.2010). I write, however, to note that dependency is a status created by law that either is true of a child or is not. That is, either a child is dependent or it is not. A child cannot be dependent vis-a-vis one parent but not dependent as to the other parent. If the child is not dependent “as to one parent,” then the child is not dependent. In this case, L.L. is no longer dependent, and I concur in the denial of certiorari review.

      . See Ala.Code 1975, § 12-15-102(8)a.2., defining a "dependent child” as including a child "[w]ho is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.”