author: PER CURIAM.

text:
    Lisa Hill SLEDGE, as personal representative of the estate of Tanesha E. Hill, deceased v. IC CORPORATION and International Truck and Engine Corporation.
    1080087.
    Supreme Court of Alabama.
    April 2, 2010.

      Douglas J. Fees of The Cochran Firm— Huntsville, Huntsville, for appellant.
    De Martenson and Luke Montgomery of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellees.
   PER CURIAM.

This appeal by Lisa Hill Sledge, as personal representative of the estate of Tane-sha E. Hill, deceased, one of the plaintiffs below, follows the entry of a partial summary judgment in favor of IC Corporation (“IC”) and International Truck and Engine Corporation (“ITEC”), two of numerous defendants below. We dismiss the appeal as being from a nonfinal judgment.

Facts and Procedural History

On November 20, 2006, Tanesha E. Hill, Deanna Mitchell, Samantha Horton, James Moore, Danton Willie, Lakera Carter, and Morgan Harkey, all minors, were injured when the school bus in which they were passengers crashed. Tanesha died as a result of the injuries she sustained in the accident.

On February 23, 2007, the injured minors, through their natural mothers and next friends, as well as Sledge, as the personal representative of Tanesha’s estate, sued numerous parties, including the driver of a vehicle that allegedly caused the crash, the owner of the school bus, the driver of the school bus, various contractors connected with the construction of the roadway on which the crash occurred, and IC and ITEC, the companies responsible for the design, manufacture, and distribution of the school bus. The complaint sought damages against IC and ITEC under various theories of negligence, breach of warranty, products liability, and violation of the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”). Sledge specifically sought damages for Tanesha’s wrongful death.

On July 17, 2008, IC and ITEC filed a joint motion for a partial summary judgment as to all counts alleging that the school bus was defective and/or dangerous because of the lack of seat belts for passengers, arguing that those counts were legislatively preempted as a cause of action by § 16-27-6, Ala.Code 1975, as interpreted by this Court in Dentson v. Eddins & Lee Bus Sales, Inc., 491 So.2d 942 (Ala.1986). The summary-judgment motion relied in part on the expanded answers to interrogatories explaining that the counts asserting defects in the school bus were based on the following allegations:

“[T]he IC school bus had an inadequate seatbelt reminder. The IC school bus had inadequate occupant restraint systems for all occupants of the bus. The IC school bus was not crashworthy. The IC school bus failed to warn that the bus provides little or no protection in the event of a rollover or side impact collision.”

The plaintiffs responded to the motion, and, after a hearing, the tidal court entered a partial summary judgment in favor of IC and ITEC “with respect to any claim, either in tort or contract, alleging that the school bus was defective or in breach of warranty due to its failure to provide seatbelts for passengers,” including “any ancillary claims arising out of such defect theory such as failure to warn of the lack of passenger seatbelts and the like.” The trial court expressly stated that its decision “[did] not affect any of the other pending claims of product defect [asserted] by [the] [plaintiffs against [IC and ITEC].” The trial court certified the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Sledge appeals.

Discussion

As a threshold matter, we must determine whether the trial court’s Rule 54(b) certification was valid. If a Rule 54(b) certification is invalid, then the judgment is a nonfinal judgment that will not support an appeal. Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 96 (Ala.2002). Further, “ ‘[w]hen it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.’” North Alabama Elec. Coop. v. New Hope Telephone Coop., 7 So.3d 342, 344 (Ala.2008) (quoting Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974)).

In Scrushy v. Tucker, 955 So.2d 988 (Ala.2006), this Court examined whether a partial summary judgment on an unjust-enrichment claim asserted by the plaintiff, Tucker, was certifiable as final under Rule 54(b):

“ ‘[F]or a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least one claim or fully dispose of the claims as they relate to at least one party.’ Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala.1999).
“We first address the question whether Tucker’s unjust-enrichment claim was a separate and distinct claim that was fully adjudicated by the partial summary judgment. In Precision American Corp. v. Leasing Service Corp., 505 So.2d 380, 381 (Ala.1987), this Court recognized the difficulty of the question before us.
“ ‘The question before this Court is whether the partial summary judgment [Leasing Service Corp.] received completely disposed of a claim so as to make that judgment final. Rule 54(b) does not authorize the entry of final judgment on part of a single claim. Tolson v. United States, 732 F.2d 998, 999 (D.C.Cir.1984). Neither federal nor state courts have been able to settle on a single test to determine when claims are separate or exactly what constitutes a claim. See, Tolson, 732 F.2d at 1001; Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975). However, authorities have stated that “when plaintiff is suing to vindicate one legal right and alleges several elements of damage, only one claim is presented and subdivision (b) [of rule 54] does not apply.” 10 C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure: Civil 2d, § 2657, at 69-71 (1983); Landry v. G.B.A., 762 F.2d 462, 464 (5th Cir.1985).’
“Federal authorities have also recognized that the ‘separate claim’ question is not easily resolved. For example, the Fifth Circuit stated in Samaad[ v. City of Dallas, 940 F.2d 925, 930 (5th Cir.1991)]:
“ ‘Even if we are able to differentiate nicely between the legal and discretionary aspects of rule 54(b) judgments, a great deal of uncertainty nonetheless remains, for we must consider the unsettled question of what exactly is a “claim for relief.” The most that can be said confidently about this question is that various courts focus upon different things but are reluctant to articulate hard-and-fast tests.
“‘Nonetheless, certain points of agreement emerge from the cases. For instance, “[i]t is clear that a claimant who presents a number of alternative legal theories, but whose recovery is limited to only one of them, has only a single claim of relief for purposes of Rule 54(b).” Page [v. Preisser], 585 F.2d [336] at 339 [ (8th Cir.1978) ] (citing Edney v. Fidelity & Guar. Life Ins. Co., 348 F.2d 136, 138 (8th Cir.1965)). Although courts generally agree on these points, they do not fully reveal the contours of the phrase “claim for relief.” And we are reluctant, at least in this case, to rush in where other courts fear to tread. Like them, rather than attempting to formulate a generally applicable definition, we take note of the foregoing “rules of thumb” and decide the case at hand.’
940 F.2d at 930-32 (footnotes omitted). The Seventh Circuit employed similar reasoning in Stearns [v. Consolidated Management,. Inc., 747 F.2d 1105 (7th Cir.1984)]:
“ ‘Unfortunately, there is no clear test to determine when claims are separate for purposes of the rule. Local P-171 [Amalgamated Meat Cutters v. Thompson Farms Co.], 642 F.2d [1065] at 1070 [ (7th Cir.1981) ]. Nonetheless, we have recognized certain rules of thumb to identify those types of claims that can never be considered separate, and have examined the remainder on a case-by-case basis. The first rule is that “claims cannot be separate unless separate recovery is possible on each.... Hence, mere variations of legal theory do not constitute separate claims.” 642 F.2d at 1071....’
747 F.2d at 1108-09.
“The United States Court of Appeals for the Second Circuit enunciated the following test in Rieser v. Baltimore & Ohio R.R., 224 F.2d 198, 199 (2d Cir.1955), that the commentators in Federal Practice & Procedure find workable: ‘The ultimate determination of multiplicity of claims must rest in every case on whether the underlying factual bases for recovery state a number of different claims which could have been separately enforced.’ The commentators then state:
“ ‘A single claimant presents multiple claims for relief under the Second Circuit’s formulation when the possible recoveries are more than one in number and not mutually exclusive or, stated another way, when the facts give rise to more than one legal right or cause of action.... However, when a claimant presents a number of legal theories, but will be permitted to recover only on one of them, the bases for recovery are mutually exclusive, or simply presented in the alternative, and plaintiff has only a single claim for relief for purposes of Rule 54(b). Similarly, when plaintiff is suing to vindicate one legal right and alleges several elements of damage, only one claim is presented and subdivision (b) does not apply.’
“10 Charles Alan Wright et al., Federal Practice & Procedure § 2657 (3d ed.1998) (footnotes omitted).”

Scrushy, 955 So.2d at 996-98 (footnote omitted). See also Ex parte National Ins. Underwriters, 366 So.2d 687, 689-90 (Ala.1978) (holding that a “‘claim’ refers to a set of facts giving rise to legal rights in the claimant, and not mere legal theories of recovery based upon those facts”).

The complaint alleges several different counts against ITEC and IC, including products liability (count VIII), negligence and/or wanton conduct (count IX), violation of the AEMLD (count X), and breach of warranty (count XI). However, those counts are not separate claims. Instead, Sledge can maintain an action against ITEC and IC only under Ala.Code 1975, § 6-5-410, for wrongful death, which she specifically alleged in count XV of the complaint. Alabama Power Co. v. White, 377 So.2d 930, 933 (Ala.1979) (“[I]n Alabama there is but one cause of action for wrongful death, i.e., [Ala.] Code 1975, § 6-5-410.”); see also Carter v. City of Birmingham, 444 So.2d 373, 375 (Ala.1983) (noting that “under Alabama law only a wrongful death action may be maintained, and only punitive damages are recoverable”). Counts VIII through XI in this case cannot be maintained by Sledge outside a wrongful-death action under § 6-5-410, Ala.Code 1975; instead, those counts are “ ‘mere variations of legal theory’ ” underlying Sledge’s single wrongful-death claim, Scrushy, supra (quoting Stearns v. Consolidated Mgmt., Inc., 747 F.2d 1105, 1109 (7th Cir.1984)), and Sledge can recover only one set of damages for all. Trott v. Brinks, Inc., 972 So.2d 81, 84 (Ala.2007) (noting that, in a wrongful-death action, “the only recoverable damages are punitive damages”).

The trial court certified as final its judgment in favor of IC and ITEC as to all allegations related to the lack of passenger seat belts on the school bus. Count IX of the complaint makes allegations of negligence and wantonness based on a failure to provide adequate safety and protection measures. Given the plaintiffs’ explanation that the school bus was defective because it lacked seat belts, the trial court’s partial summary judgment appears to have disposed of that count in full. Similarly, count X seeks damages under the AEMLD based on the lack of adequate safety features that, again, would suggest that that count relates solely to the lack of passenger restraints. Thus, those two counts appear to be wholly adjudicated by the trial court’s partial summary judgment.

Two other counts, however, appear to remain pending in part. Specifically, count VIII alleges 11 separate defects in the school bus. Of those, some dealt with alleged defects unrelated to the lack of passenger seat belts. Count XI alleges a breach of the implied warranty of suitability and references the dangerous, unsafe, and/or defective condition of the “component parts” of the bus. Those counts — for the most part — allege defects unrelated to the lack of passenger seat belts and survived the trial court’s summary judgment. Thus, portions of Sledge’s original wrongful-death action against ITEC and IC remain pending in the trial court.

Although counts IX and X appear to be wholly adjudicated, Rule 54(b) does not authorize the entry of final judgment on parts of a claim — here, Sledge’s wrongful-death claim. Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala.1999) (“for a Rule 5k(b) certification of finality to be effective, it must fully adjudicate at least one claim or fully dispose of the claims as they relate to at least one party”); Precision American Corp. v. Leasing Serv. Corp., 505 So.2d 380, 381 (Ala.1987) (“Rule 54(b) does not authorize the entry of final judgment on part of a single claim.” (citing Tolson v. United States, 732 F.2d 998, 999 (D.C.Cir.1984))). Because the trial court’s partial summary judgment did not “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties,” i.e., because it did not enter a judgment on Sledge’s wrongful-death claim, certification is not available under Rule 54(b); this appeal is thus from a nonfinal judgment and is due to be dismissed.

APPEAL DISMISSED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

      . The relationship between IC and ITEC is unclear from the record. At times, they are referred to collectively under a single name.

      . It appears that only Sledge appeals from the trial court’s judgment.

      . Under § 6-5-410, "[a] personal representative may commence an action ... for the wrongful act, omission, or negligence” that caused the decedent’s death, provided that the decedent "could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.” (Emphasis added.)

      . We see nothing in the arguments before us indicating that Sledge is also seeking damages of the nature found in Benefield v. Aquaslide

        'N' Dive Corp., 406 So.2d 873 (Ala.1981) (in which the plaintiff sought compensatory damages for breach of warranty to recover for the pain and medical expenses suffered by the decedent between the date of his injury and his death).

      . That particular count included allegations related to "inadequate or insufficient materials for its reasonable foreseeable use and wear"; failure to provide "adequate instructions and warnings for safe use and of the hazards associated with the design under reasonably foreseeable uses, loads, and stresses”; “failing to adequately and properly undertake and carry out tests and research concerning the use of passive restraint systems"; and "[djesigning, manufacturing, distributing, marketing and selling a commercial school bus and parts that were inadequate to manage the energy forces present in a high impact collision.”


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    CHILD DAY CARE ASSOCIATION v. Victoria CHRISTESEN.
    2070286.
    Court of Civil Appeals of Alabama.
    Dec. 12, 2008.
    Certiorari Denied May 7, 2010 Alabama Supreme Court 1080897.
    Cecily L. Kaffer of Jackson Myrick-The Kullman Firm, a Professional Corporation, Mobile, for appellant.
    Lee L. Hale, Mobile; and Jay A. York, Mobile, for appellee.
   BRYAN, Judge.

Child Day Care Association (“CDCA”) appeals from a judgment of the trial court awarding workers’ compensation benefits to Victoria Christesen for a permanent and total disability. The issue on appeal is whether the trial court erred in awarding benefits to Christesen for an injury to the body as a whole rather than for injuries to scheduled members under § 25-5-57(a)(3), Ala.Code 1975. We affirm.

In August 2002, Christesen injured her right ankle in an accident while working for CDCA. A subsequent MRI of Chris-tesen’s right ankle revealed a rupture of the posterior tibial tendon. In January 2003, Dr. William A. Crotwell, an orthopedic surgeon and Christesen’s authorized treating physician, performed surgery to repair the ruptured tendon. Following the surgery, Dr. Crotwell referred Christesen to physical therapy. While participating in physical therapy in July 2003, Christesen ruptured the quadriceps tendon in her left knee. Dr. Crotwell subsequently performed surgery to repair the ruptured tendon in Christesen’s left knee.

In February 2004, Christesen sued CDCA, seeking workers’ compensation benefits. Following a trial held in June 2007, the trial court entered a judgment in September 2007 awarding Christesen permanent-total-disability benefits. Following the denial of its postjudgment motion, CDCA appealed to this court.

Section 25-5-81(e), Ala.Code 1975, provides the standard of review in workers’ compensation cases:

“(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”

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.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

“Our review is restricted to a determination of whether the trial court’s factual findings are supported by substantial evidence. Ala.Code 1975, § 25-5-81(e)(2). This statutorily mandated scope of review does not permit this court to reverse the trial court’s judgment based on a particular factual finding on the ground that substantial evidence supports a contrary factual finding; rather, it permits this court to reverse the trial court’s judgment only if its factual finding is not supported by substantial evidence. See Ex parte M & D Mech. Contractors, Inc., 725 So.2d 292 (Ala.1998). A trial court’s findings of fact on conflicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995).”

Landers v. Lowe’s Home Ctrs., Inc., 14 So.3d 144, 151 (Ala.Civ.App.2007). “This court’s role is not to reweigh the evidence, but to affirm the judgment of the trial court if its findings are supported by substantial evidence and, if so, if the correct legal conclusions are drawn therefrom.” Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 794 (Ala.Civ.App.2002).

On appeal, CDCA argues that the trial court erred in awarding workers’ compensation benefits to Christesen for an injury to the body as a whole rather than for injuries to scheduled members under § 25-5-57(a)(3), Ala.Code 1975. Injuries to the ankle and knee are typically compensated under the schedule found in § 25-5-57(a)(3). In its judgment, the trial court awarded Christesen benefits outside the schedule on two separate grounds: (1) the trial court’s finding that the pain in Christesen’s injured right ankle and left knee was severe, constant, and had a debilitating effect on her body as a whole; and (2) the trial court’s finding that the effects of the injuries to Christesen’s right ankle and left knee extended to her back and interfered with its efficiency. We first address the trial court’s second ground for awarding benefits outside the schedule.

In Ex parte Drummond Co., 837 So.2d 831, 834 (Ala.2002), our supreme court restated the test for determining when an injury to a scheduled member may be treated as a nonscheduled injury to the body as a whole: “ ‘[I]f the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.’ ” (Quoting 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001).) “To ‘interfere’ means ‘to interpose in a way that hinders or impedes.’ See Merriam-Webster’s Collegiate Dictionary 652 (11th ed. 2003). ‘Efficiency1 refers to effective functioning. Id. at 397.” Boise Cascade Corp. v. Jackson, 997 So.2d 1042, 1045 (Ala.Civ.App.2008).

“Based on the holding in Ex parte Jackson, [997 So.2d 1038 (Ala.Civ.App.2007) ], in order to prove that the effects of the injury to the scheduled member ‘extend to other parts of the body and interfere with their efficiency,’ the employee does not have to prove that the effects actually cause a permanent physical injury to nonscheduled parts of the body. Rather, the employee must prove that the injury to the scheduled member causes pain or other symptoms that render the nonscheduled parts of the body less efficient.
“Under Alabama’s workers’ compensation law, the determination of whether an injury to one part of the body causes symptoms to another part of the body is a question of medical causation. See Honda Mfg. of Alabama, LLC v. Alford, 6 So.3d 22, 28 (Ala.Civ.App.2007). To prove medical causation, the employee must prove that the effects of the scheduled injury, in fact, contribute to the symptoms in the nonscheduled parts of the body. See generally Ex parte Valdez, 636 So.2d 401, 405 (Ala.1994).”

Id. at 1044.

In its judgment, the trial court, after citing the test found in Ex parte Drummond Co., stated:

“[T]his Court concludes that the injuries to Ms. Christesen’s lower extremities have caused a physical problem with regard to her back. Specifically, Dr. Crotwell testified that the malalignment of her lower extremities have caused this back problem. According to Dr. Crotwell, the malalignment has affected the efficiency of her back. Separate work restrictions for her back would have been assigned [by Dr. Crotwell] but for the fact that they were encompassed within the restrictions which he placed on her lower extremities.”
At trial, Christesen testified:
“Q. [By counsel for Christesen:] ... [H]ave these injuries that you have [to your right ankle and left knee] extended to any other parts of your body?
“A. Yes. I have a lot of pain in my right hip and my lower back.
“Q. ... Does this pain in your back and your hip, does it affect the efficiency of your back?
“A. Yes.
“Q. How does it affect the efficiency of your back?
“A. Well, just the way I can move my body and how much I can do. [It affects] my mobility.
“Q. Does it cause pain in your muscles and ligaments in your back?
“A. Yes.
“Q. Does it affect your range of motion?
“A. Yes.”

In his deposition testimony, Dr. Crotwell testified that Christesen experiences “chronic pain” in her back. Dr. Crotwell testified that he had not treated Christesen for her back pain. Dr. Crotwell further testified:

“Q. [By counsel for Christesen:] ... [To] what do you attribute the problems with [Christesen’s] back and the complaints she’s been having?
“A. A lot of it is because of the imbalance, the mechanical shifting. She’s had the problems with the right foot with the severe operation that[ ] she had on that with the posterior tibial transfer and all that we did. Then you combine that with the rupture of the quad[riceps] on the left side.... [With] most people if you just have [an injury on] one side[, you] can usually compensate pretty good with it, but if you [have injuries on] two sides, then it usually causes some mala-lignment and can cause some back problems. And fortunately she hasn’t had a great amount, but she definitely has had some back problems with increased pain. So I would attribute it to the problems with the malalignment and shifting of her back due to both injuries, the right and the left legs.
“Q. Would it be a fair statement to say then that the injuries to [Christesen’s] right ankle and to her left quadpri-ceps], those injuries, are they [a]ffecting the efficiency of her back functions?
“A. Oh, definitely, yes.
“Q. ... [A]re these problems causing or impacting on the efficiency of the back insofar as they [a]ffect the functional ability of the back?
“A. I guess in that setting it is [a]f-fecting the efficiency of the back because [Christesen is] having the chronic pain with it. If you have mechanical malalignment, you’re definitely going to [a]ffect the efficiency of the back.
“Q. ... [I]t would be your opinion ... that the back complaints that [Christesen] is having are caused by the right ankle problems and the left quad[riceps] problems that she’s having; is that right?
“A. Yes, I think it’s related.”

Christesen testified that the effects of the injuries to her right ankle and left knee cause pain in her back. She further testified that her back pain affects the efficiency of her back by limiting her mobility and her range of motion. Dr. Crot-well opined that the malalignment, imbalance, and mechanical shifting caused by Christesen’s ankle and knee injuries have cause her chronic back pain. Dr. Crotwell testified that the injuries to Christesen’s ankle and knee “definitely” affect the efficiency of her back. That evidence constitutes substantial evidence indicating that the effects of Christesen’s ankle and knee injuries extend to her back and interfere with its efficiency. Pursuant to Ex parte Drummond Co., “ ‘if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.’ ” 837 So.2d at 834 (quoting 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001)). Accordingly, the trial court did not err in awarding Christesen benefits for an injury to the body as a whole rather than for injuries to scheduled members under § 25-5-57(a)(3). See also Pipeline Technic, L.L.C. v. Mason, 6 So.3d 1176 (Ala.Civ.App.2008) (affirming a trial court’s judgment awarding nonscheduled benefits when the effects of the employee’s foot injury extended to his back and affected the efficiency of his back); Norandal U.S.A, Inc. v. Graben, [Ms. 2061070, October 17, 2008] (Ala.Civ.App.2008) (affirming-a trial court’s judgment awarding nonscheduled benefits when the effects of the employee’s knee injury extended to his hip and lower back and affected their efficiency).

As noted, in addition to awarding Chris-tesen benefits outside the schedule based on the application of the test stated in Ex parte Drummond Co., the trial court also awarded Christesen benefits outside the schedule based on its finding that she suffers from debilitating pain. See Ex parte Drummond Co., 837 So.2d at 836 n. 11 (indicating that debilitating pain isolated to a scheduled member may, in some circumstances, be a basis for compensating an injury outside of the schedule); Masterbrand Cabinets, Inc. v. Johnson, 984 So.2d 1136 (Ala.Civ.App.2005) (plurality opinion) (affirming a trial court’s judgment awarding benefits outside the schedule on the ground that the employee suffered constant and severe pain that, although isolated to scheduled members, had a debilitating effect on the employee’s body as a whole); and Shoney’s, Inc. v. Rigsby, 971 So.2d 722 (Ala.Civ.App.2007) (distinguishing the facts of that case from those of Johnson while applying the Johnson analysis). CDCA argues that the trial court erred in awarding Christesen nonscheduled benefits based on its finding that Christesen suffers from debilitating pain. However, we pretermit discussion of this issue based on our conclusion that the trial court did not err in awarding benefits outside the schedule under the test stated in Ex parte Drummond Co.

AFFIRMED.

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

       Note from the reporter of decisions: On February 20, 2009, on application for rehearing, the Alabama Court of Civil Appeals withdrew the October 17, 2008, opinion in Norandal U.S.A., Inc., and substituted another one. The October 17, 2008, opinion affirmed the judgment of the trial court; the substituted opinion reverses that judgment and remands the case.


text:
    Linda PIKE v. Brenda REED.
    2080386.
    Court of Civil Appeals of Alabama.
    June 19, 2009.
    Rehearing Denied Jan. 8, 2010.
    Certiorari Denied April 16, 2010 Alabama Supreme Court 1090523.

      Patrick 0. Miller of Dick Riggs Miller LLP, Huntsville, for appellant.
    Jay E. Emerson, Jr., and Robert D. Lee of Higgs & Emerson,.Huntsville, for appel-lee.
   BRYAN, Judge.

Linda Pike, the defendant below, appeals from a summary judgment in favor of the plaintiff, Brenda Reed. We affirm.

Pike and Reed are sisters. In 1989, Reed acquired title to a house located on Highway 69 in Oakman (“the house”) and took out a policy of insurance covering the house and the contents of the house. Reed lived in the house until September 1993. In September 1993, Reed moved out of the house, and the mother of Reed and Pike (“the mother”) began living in the house. After the mother began living in the house, some of the contents of the house (“the contents”) were owned by the mother and some were owned by Reed.

In 2004, Reed executed a deed that made herself, her husband, and the mother the joint owners of the house. In early August 2005, a fire (“the fire”) damaged the house and the contents and injured the mother. At the time of the fire, Reed had a policy of homeowners’ insurance that had been issued by Alfa Mutual General Insurance Company (“Alfa”). Although the mother had been named as an insured on at least one previous policy that Reed had obtained on the house and the contents, Reed had instructed the insurance company to take the mother’s name off of the policy sometime before the August 2005 fire. Hence, the mother’s interest in the house and the contents was not insured when the fire occurred in August 2005.

Reed was living in Iowa when the fire occurred and, due to various health problems, was unable to travel to Alabama to make an insurance claim based on the damage caused by the fire. Accordingly, on August 25, 2005, Reed executed a power of attorney (“the power of attorney”), which stated, in pertinent part:

“I, Brenda Morris Reed, hereby give Linda R. Pike of ... Huntsville, Alabama, my sister, and/or Johnnie P. Simpson of ... Jasper, Alabama, my brother, full Power of Attorney to represent me in all matters relating to my property located [on] Highway 69 [in] Oakman, Alabama 35579.”

Reed gave a copy of the power of attorney to Alfa. Reed and the mother provided Pike with information regarding the contents, and Pike used this information to prepare an inventory of the contents that were damaged in the fire (“the inventory”). The inventory listed both items that were owned by Reed and items that were owned by the mother. Pike submitted a claim to Alfa under the contents coverage of the policy and submitted the inventory as part of the claim.

On December 5, 2005, Alfa issued a check payable to Reed in the amount of $41,698 (“the Alfa check”) in payment of the claim for damage to the contents and sent it to Pike. Pike deposited the Alfa check into her and her husband’s joint checking account (“the Pikes’ account”) instead of delivering it to Reed. Pike’s husband and the mother assigned values to the individual items listed on the inventory Pike had submitted to Alfa with the contents claim. Pike’s husband and the mother assigned a total value of $15,712 to the items owned by Reed and a total value of $25,986 to the items owned by the mother. Pike wrote Reed a check in the amount of $15,712 and withheld $25,986 of the proceeds of the Alfa check, which she spent for the benefit of the mother.

On February 2, 2006, Reed sued Pike, alleging a claim of conversion. Answering the complaint, Pike denied liability. Subsequently, Pike moved the trial court for a summary judgment. Among other things, Pike supported her summary-judgment motion with her affidavit, which stated, in pertinent part:

“2. ALFA sent a check to me in the amount of $41,698 for property destroyed in the fire. I deposited this check from ALFA into my and my husband’s regular joint checking account at AmSouth Bank.
“8. The insurance proceeds were not placed in a special account or segregated or kept separate in any way from the other funds contained in my and my husband’s joint checking account. The insurance money from ALFA was commingled with all of the other money in this account.
“4. When Brenda Reed failed to give me a clear answer as to how she intended to handle the issue of the belongings in the house, I became concerned that Brenda Reed would not pay our mother, Mrs. Morris, for the items that she had lost in the fire.
“5. The insurance proceeds for personal property that were not paid to Brenda Reed have been used exclusively for the use, support and benefit of my mother, Mrs. Morris. These proceeds were not kept in any special or segregated account, but remained in my and my husband’s regular joint checking account at AmSouth Bank along with our other funds.”

Pike asserted two grounds for her summary-judgment motion. First, she asserted that Reed could not establish one of the essential elements of a conversion claim, 1.e., that Pike’s withholding of $25,986 in proceeds of the Alfa check was wrongful, because, Pike said, Reed had testified that she would have allowed her mother to have as much of the proceeds of the Alfa check as she wanted. Second, Pike asserted that she could not be liable for conversion because the money she had allegedly converted was not “specific money capable of identification,” which is a necessary condition of establishing a claim of conversion with respect to money.

Reed filed a cross-motion for a partial summary judgment with respect to liability on the ground that Pike had converted the Alfa check because, Reed said, the power of attorney did not authorize Pike to deposit the Alfa check into the Pikes’ account. In opposition to Pike’s summary-judgment motion, Reed asserted (1) that her willingness to give the mother as much of the proceeds of the Alfa check as the mother wanted did not authorize Pike to deposit the Alfa check into the Pikes’ account and (2) that the Alfa check did indeed constitute specific money that was capable of identification for purposes of a conversion claim.

In opposition to Reed’s partial-summary-judgment motion, Pike asserted that the language of the power of attorney was broad enough to authorize Pike to deposit the Alfa check in the Pikes’ account and to determine how the proceeds should be apportioned between Reed and the mother. In addition, she asserted that Reed was not entitled to a partial summary judgment because, she said, genuine issues of material fact existed; specifically, she argued (1) that Reed had testified that she had executed a document revoking the power of attorney before Pike deposited the check into the Pikes’ account but had not produced the original of that document and, that, therefore, a genuine issue of material fact existed regarding whether Reed had validly revoked the power of attorney and (2) that issues of material fact existed regarding which of the contents belonged to Reed and which belonged to the mother.

Following a hearing, the trial court entered an order denying Pike’s summary-judgment motion and granting Reed’s partial-summary-judgment motion. Pike filed two appeals from the partial summary judgment in favor of Reed. We dismissed those two appeals on the ground that they were appeals from a nonfinal judgment. See Pike v. Reed, 3 So.3d 201 (Ala.Civ.App.2008). Following our dismissal of those two appeals, the trial court entered a final summary judgment in favor of Reed that, as amended, awarded Reed $26,604 and denied all other relief requested by Reed. Pike filed a postjudgment motion, which was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Pike then perfected the appeal now before us.

“ ‘We review a summary judgment de novo.’ Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002) (citation omitted). ‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” ’ Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (citations omitted).
“ ‘In determining whether the non-movant has created a genuine issue of material fact, we apply the “substantial-evidence rule” — evidence, to create a genuine issue of material fact, must be “substantial.” § 12-21-12(a), Ala.Code 1975. “Substantial evidence” is defined as “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).’
“Callens v. Jefferson County Nursing Home, 769 So.2d 273, 278-79 (Ala.2000) (footnote omitted). In deciding a motion for a summary judgment, or in reviewing a summary judgment, the court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party. Bruce v. Cole, 854 So.2d 47 (Ala.2003), and Pitney Bowes, Inc. v. Berney Office Solutions, 823 So.2d 659 (Ala.2001). See Ex parte Helms, 873 So.2d 1139 (Ala.2003), and Willis v. Parker, 814 So.2d 857 (Ala.2001).”

Hollis v. City of Brighton, 885 So.2d 135, 140 (Ala.2004).

Pike first argues that the trial court erred in entering a summary judgment in favor of Reed because, Pike says, the money she allegedly converted was not “specific money capable of identification” and, therefore, could not be the subject of a claim of conversion. Pike directs our attention to the fact that, after she deposited the Alfa check into the Pikes’ joint account, the proceeds of the Alfa check were commingled with funds belonging to the Pikes and were no longer capable of being identified. Therefore, Pike says, she could not be liable for conversion when she withheld $25,986 of the proceeds of the Alfa check from Reed because those withheld proceeds had become commingled in the Pikes’ account and, consequently, were no longer “specific money capable of identification.”

Reed, on the other hand, argues that the conversion occurred when Pike exercised dominion over the Alfa check by depositing it into the Pikes’ account without Reed’s authorization. Thus, according to Reed’s analysis, Pike converted the entire Alfa check but mitigated the amount of damages that could be assessed against her by later giving Reed $15,712 of the proceeds of the Alfa check. Reed points out that the Alabama Supreme Court has held that a check such as the Alfa check constitutes specific money that is capable of being identified for purposes of a conversion claim. See Crown Life Ins. Co. v. Smith, 657 So.2d 821 (Ala.1994).

In Crown Life, Edward C. Land, a general insurance agent, had sold Jack C. Smith and his wife, Jean B. Smith, several whole-life policies issued by Crown Life Insurance Company (“Crown Life”). The Smiths subsequently learned that Land had wrongfully taken money that belonged to them by forging their endorsements on Crown Life checks made payable to them and depositing those checks into bank accounts Land controlled. The Smiths then sued Land and Crown Life, alleging, among other things, claims of conversion and wantonness. The trial court entered a default judgment against Land, and the Smiths’ claims against Crown Life proceeded to trial before a jury. At the request of the Smiths, the trial court submitted to the jury only the Smiths’ claims of conversion and wantonness. The jury returned a verdict against Crown Life, and the trial court entered a judgment on the verdict; Crown Life appealed to the supreme court. On appeal, Crown Life argued, among other things, that the trial court had erred in submitting the conversion claim to the jury because, Crown Life said, the funds Land had taken were not sufficiently identifiable to support a conversion claim. Rejecting this argument, the supreme court stated:

“To establish conversion, one must present proof of a wrongful taking, an illegal assumption of ownership, an illegal use or misuse of another’s property, or a wrongful detention or interference with another’s property. Covington v. Exxon Co., U.S.A., 551 So.2d 985 (Ala.1989); Gillis v. Benefit Trust Life Ins. Co., 601 So.2d 951 (Ala.1992); Gray v. Liberty National Life Ins. Co., 623 So.2d 1156 (Ala.1993). It is well settled that money may be subject to a conversion claim, where there is an obligation to keep that money intact or to deliver it. 54 Am.Jur.2d Money § 5 (1971); 89 C.J.S. Trover and Conversion § 23 (1955). Generally, an action for conversion of money will not lie unless the money is specific and capable of identification. Greene County Bd. of Education v. Bailey, 586 So.2d 893 (Ala.1991). This Court has stated:
“ ‘An action alleging conversion of cash lies only where the money involved is “earmarked” or is specific money capable of identification, e.g., money in a bag, coins or notes that have been entrusted to the defendant’s care, or funds that have otherwise been sequestered, and where there is an obligation to keep intact and deliver this specific money rather than to merely deliver a certain sum.’
“Gray, 623 So.2d at 1160.
“Checks, and the property rights represented thereby, may be the subject of a conversion action. Alfa Mut. Ins. Co. v. Veal, 622 So.2d 1292 (Ala.1993)....
“We conclude that the trial court properly submitted the Smiths’ conversion claim to the jury. Land forged the Smiths’ signatures onto the Smiths’ Crown premium refund checks, received the funds represented by those checks, and deposited those funds into his own corporation’s accounts. These refund checks were specific, identifiable property that represented funds owed from Crown to the Smiths. Land wrongfully exercised dominion over the checks through his forgeries upon the checks and his retention of the funds; therefore, Land converted these checks. See Alfa Mut. Ins. Co. v. Veal, 622 So.2d 1292 (Ala.1993).”

657 So.2d at 823-24 (emphasis added).

In the case now before us, although the power of attorney granted Pike “full Power of Attorney to represent [Reed] in all matters relating to [Reed’s] property located [on] Highway 69 [in] Oakman, Alabama 35579,” it did not expressly grant her the authority to deposit the Alfa check into the Pikes’ account. The absence from the power of attorney of a provision expressly granting Pike such authority appears to support Reed’s argument that a conversion occurred when Pike deposited the Alfa check into the Pikes’ account.

Pike, however, argues that the holding of a plurality of the Alabama Supreme Court in Miller v. Jackson Hospital and Clinic, 776 So.2d 122, 124-25 (Ala.2000), indicates that the absence of a provision granting her the express authority to deposit the Alfa check into the Pikes’ account is immaterial. In Miller, Roy Lee Miller (“Roy Lee”), while hospitalized at Jackson Hospital, suffered severe burns. Subsequently, Roy Lee executed a durable power of attorney that granted his uncle, Charles Miller (“Charles”), the power, among other things, to “‘institute, prosecute, defend, compromise, arbitrate and dispose of legal, equitable, or administrative hearings, actions, suits, attachments, arrests, distresses, or other proceedings, or otherwise engage in litigation in connection with any legal or equitable matters.’ ” Id. at 125 (emphasis omitted). Three days before the statute of limitations would have run on Roy Lee’s personal-injury claim arising out of his burns, Charles filed a medical-malpractice action captioned “‘Charles Miller, on behalf of Roy Lee Miller v. Jackson Hospital and Clinic, Ra-ghu Mukkamala, M.D., Glenn Yates, M.D., and Primary Care Internists of Montgomery.’ ” Id. at 123. The complaint alleged that negligence on the part of the defendants had caused Roy Lee’s injuries. The defendants moved the trial court for a summary judgment on the ground that Charles was not the real party in interest. After the statute of limitations had run, Charles moved for leave to amend the complaint to add Roy Lee as a named plaintiff. However, the trial court granted the defendants’ summary-judgment motion on the ground that Charles was not the real party in interest; the trial court concluded, among other things, that Charles did not have authority to sue on behalf of Roy Lee because the durable power of attorney executed by Roy Lee did not expressly grant Charles authority to file a personal-injury action on behalf of Roy Lee. After the trial court denied his post-judgment motion challenging the summary judgment in favor of the defendants, Charles appealed to the supreme court.

On appeal, a plurality of the supreme court held, among other things, that the trial court had erred in concluding that the power of attorney did not authorize Charles to file a personal-injury action on behalf of Roy Lee. In pertinent part, the opinion stated:

“The trial court held that the power of attorney gave Charles no authority to sue on behalf of Roy Lee because, it found, the power to file a personal-injury action was not specifically stated within the powers described in the document. In support of this conclusion, the trial court cited Lamb v. Scott, 643 So.2d 972 (Ala.1994), for the proposition that the authority granted through a power of attorney is to be strictly construed and restricted to those powers expressly granted therein. Id. at 973. The trial court reasoned that, because of its want of specificity, the power of attorney gave Charles no power to bring a personal-injury action on behalf of Roy Lee.
“We disagree with this conclusion and, in so doing, distinguish Lamb. In Lamb, a mother gave a durable power of attorney to her oldest daughter, authorizing the daughter to manage her affairs. A year later, the mother executed a will leaving all her property, including a farm, to her two daughters and her stepson, in equal portions. The oldest daughter, purporting to act pursuant to the power of attorney, conveyed the farm to herself and her sister, to the exclusion of her stepbrother. This Court held: ‘One who accepts a power of attorney covenants to use the power for the sole benefit of the one conferring the power and to use it in a manner consistent with the purposes of the agency relationship created by the power of attorney.’ Lamb, 643 So.2d at 974. ‘The principal-agency relationship is fiduciary in nature and imposes upon the agent a duty of loyalty, good faith, and fair dealing.’ Sevigny v. New South Fed. Sav. & Loan Ass’n, 586 So.2d 884, 887 (Ala.1991). In Myers v. Ellison, 249 Ala. 367, 369, 31 So.2d 353, 355 (1947), this Court stated:
“‘An agent sustains a position of trust toward his principal and in all transactions affecting the subject of his agency, the law dictates that he must act in the utmost good faith and must make known to his principal ... all material facts within his knowledge which in any way affect the transaction and subject matter of his agency.
“ ‘The law sedulously regards this principle and acts of an agent which tend to violate this fiduciary obligation are prima facie voidable, and are considered, in law, as “frauds upon confidence bestowed.” ’
“(Citations omitted.)
“The situation presented by Lamb involved self-dealing. This Court held that in order to act against the intent of the donee as expressed in her will, the attorney-in-fact had to have the express authority to do so. 643 So.2d at 973. In other words, this present case is distinguishable from Lamb. The power of attorney in Lamb made no express grant of authority to engage in self-dealing, and the self-dealing appeared to go against the true intent of the donee. See, also, Hall v. Cosby, 288 Ala. 191, 258 So.2d 897 (1972), and Dillard v. Gill, 231 Ala. 662, 166 So. 430 (1936) (holding that authority to self-deal must be specifically granted).
“Roy Lee vested Charles with the authority to ‘institute, prosecute, defend, compromise, arbitrate and dispose of legal, equitable, or administrative hearings, actions, suits, attachments, arrests, distresses, or other proceedings, or otherwise engage in litigation in connection with any legal or equitable matters.’ (Emphasis added.) Charles’s exercise of the power by filing an action for the benefit of Roy Lee did not involve self-dealing. To force the donor to predict the future and to list every cause of action or legal proceeding that might become necessary in the months or years after the execution of the power of attorney, even in instances where there is no self-dealing, lest a court later hold the power of attorney ineffective, would frustrate the donor’s purpose in executing the instrument. We decline the defendants’ request to impose the requirement of specificity even in instances where there has been no self-dealing. To do so would unnecessarily inhibit the utility of a durable power of attorney.”

776 So.2d at 124-25.

Miller is distinguishable from the case now before us because, in Miller, Charles was acting in accordance with the interest and wishes of Roy Lee whereas, in the case now before us, Pike was acting contrary to the interest and wishes of Reed. Because Pike was acting contrary to the interest and wishes of Reed in depositing the Alfa check into the Pikes’ account, the case now before us is analogous to Lamb v. Scott, 643 So.2d 972 (Ala.1994), rather than Miller. Accordingly, we conclude that Pike’s depositing the Alfa check into the Pikes’ account was not authorized by the power of attorney because the power of attorney did not expressly authorize it. See Lamb. Because Pike’s depositing the Alfa check into the Pikes’ account was not authorized by the power of attorney, it constituted a wrongful exercise of dominion over the Alfa check. Because checks can constitute specific money capable of identification and, therefore, will support a conversion claim, see Crown Life, supra, we find no merit in Pike’s argument that the money Reed claims Pike converted was not specific money capable of identification for purposes of a conversion claim.

Pike also argues that she did not commit the tort of conversion because, she says, her withholding $25,986 of the proceeds of the Alfa check was not wrongful because, she says, she spent those proceeds for the exclusive benefit of the mother and Reed herself testified that she would have allowed the mother to have as much of the proceeds of the Alfa check as she wanted if Pike had delivered the Alfa check to Reed. However, this argument is unavailing. The tort of conversion occurred when Pike wrongfully deposited the Alfa check into the Pikes’ account without Reed’s authorization. Although Pike’s subsequent use of the $25,986 for the benefit of the mother might have constituted mitigation that would reduce the amount of the damages that could be assessed against Pike for the conversion, it did not constitute a complete defense to Reed’s conversion claim, see Plummer v. Hardison, 6 Ala.App. 525, 535, 60 So. 502, 505 (1912) (“[I]t has ever been the law that when property has been wrongfully converted, and after such conversion such property again comes into the possession of its owner, this fact may be shown by the wrongdoer, if the owner of the property brings an action in trover against him for such conversion, not as a complete defense to the action, but in mitigation of damages.”), and Pike waived any argument she might have had that her use of the $25,986 for the benefit of the mother constituted mitigation of the damages that could be assessed against her because she did not present that argument to the trial court, 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.” (emphasis omitted)), and she has not presented it to us, see Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”).

Pike also argues that Reed’s testifying that she had executed a revocation of the power of attorney created a genuine issue of material fact that precluded the granting of Reed’s summary-judgment motion. However, this argument has no merit because Reed did not base her motion on the alleged revocation of the power of attorney; rather, her motion presupposed that the power of attorney was valid and in force when Pike deposited the Alfa check into the Pikes’ account.

Pike also argues that the trial court erred in granting Reed’s summary-judgment motion because genuine issues of material fact existed regarding how the proceeds of the Alfa check should have been apportioned between Reed and the mother. However, factual issues regarding the apportionment of the proceeds of the Alfa check after the Alfa check had been converted were not material because: (1) as discussed above, Pike committed the tort of conversion when she deposited the Alfa check into the Pikes’ account without Reed’s authorization; (2) as discussed above, Pike’s use of some of the proceeds of the Alfa check for the benefit of the mother, although it might have constituted mitigation of the amount of damages that could be assessed against Pike for the conversion of the Alfa check, did not constitute a complete defense to Reed’s claim of conversion; and (3) as discussed above, Pike waived any argument she may have had that she was entitled to mitigation of the amount of damages that could be assessed against her because she did not present that argument to the trial court and has not presented it to this court; therefore, factual issues relating to the apportionment of the proceeds of the Alfa check between Reed and the mother would only be material to the amount of mitigation Pike would be entitled to, an issue Pike had waived by her failure to raise it in the trial court and before this court. “Conflicting evidence on an immaterial fact issue will not rebut a summary-judgment movant’s prima facie showing that he is entitled to a summary judgment.” Black mon v. Brazil, 895 So.2d 900, 909 (Ala.2004).

Pike’s final argument is that Reed failed to establish that she was entitled to a judgment as a matter of law. We disagree for the reasons already discussed above. We note that the amount of damages assessed by the trial court, $26,604, exceeds the difference between the amount of the Alfa check, $41,698, and the amount of the check Pike gave Reed, $15,712. However, we cannot reverse the trial court’s judgment on the basis of this discrepancy because Pike has not specifically argued to us that this discrepancy constituted error. See Boshell v. Keith, 418 So.2d at 92 (‘When an appellant fails to argue an issue in its brief, that issue is waived.”).

For the foregoing reasons, the summary judgment in favor of Reed is affirmed.

AFFIRMED.

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

      . This is the second time these parties have been before this court. In Pike v. Reed, 3 So.3d 201 (Ala.Civ.App.2008), we dismissed two earlier consolidated appeals filed by Pike on the ground that they were appeals from a nonfinal judgment. The nonfinal judgment that was the subject of those two consolidated appeals was a partial summary judgment in favor of Reed with respect to liability; the partial summary judgment did not determine what relief Reed should receive. Following the dismissal of Pike’s two consolidated appeals from the nonfinal partial summary judgment, the trial court entered a summary judgment in favor of Reed that, as subsequently amended, constituted a final judgment. As amended, the summary judgment awarded Reed damages in the amount of $26,604 and denied all other relief she had requested. Pike then filed the appeal now before us.

      . See note 1, supra.


author: THOMAS, Judge.

text:
    Frederick Brent MILLER v. Karen Tade MILLER.
    2071149.
    Court of Civil Appeals of Alabama.
    July 2, 2009.
    Certiorari Quashed May 21, 2010 Alabama Supreme Court 1081365.

      Roianne Houlton Conner, Montgomery, for appellant.
    John Olszewski and Floyd Minor of Minor & Olszewski, L.L.C., Montgomery, for appellee.
   THOMAS, Judge.

Frederick Brent Miller (“the former husband”) appeals from a judgment of the Montgomery Circuit Court holding him in contempt for failing to pay periodic alimony and modifying the amount of his periodic-alimony payments to Karen Tade Miller (“the former wife”). We reverse and remand.

Facts and Procedural Background

The parties were divorced in February 2000. The settlement agreement that was incorporated into the final judgment of divorce required the former husband to pay the former wife $1,500 per month in periodic alimony. The former husband paid alimony every month until June 2007, when the former husband lost his job. After he lost his job, the former husband sent the former wife letter by certified mail informing her of his job loss and stating that he could no longer pay her periodic alimony.

In October 2007, the former wife petitioned the trial court to hold the former husband in contempt for failing to pay periodic alimony. The former husband answered the former -wife’s petition and petitioned the trial court to terminate his periodic-alimony obligation.

In May 2008, after hearing ore tenus evidence, the trial court entered a judgment finding the former husband in contempt for failing to pay alimony, finding that he was $14,500 in arrears, and ordering him to pay that amount. The trial court found that, based on the former husband’s reduced income, there existed a material change in the former husband’s circumstances, and it lowered the former husband’s alimony obligation to $1,000 per month, retroactive to the date the former husband filed his petition. The trial court also awarded the former wife $1,500 in attorney’s fees.

Issues

The former husband raises two issues in his appeal: (1) whether the trial court erred in reducing, and not terminating, the former husband’s periodic-alimony payments and (2) whether the trial court erred in finding the former husband in contempt for failure to pay alimony and, therefore, erred in awarding an alimony arrearage and attorney’s fees.

Standard of Review

“A decision to modify an award of periodic alimony is within the sound discretion of the trial court. Bush v. Bush, 784 So.2d 299, 800 (Ala.Civ.App.2000). The trial court’s judgment on this matter is presumed correct and will not be reversed unless it is unsupported by the evidence or is otherwise plainly and palpably wrong. Posey v. Posey, 634 So.2d 571, 572 (Ala.Civ.App.1994). A periodic-alimony obligation may be modified only upon a showing of a material change of circumstances that has occurred since the last award was made. Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala.Civ.App.1995).”

R.L.W. v. C.L.W., 872 So.2d 876, 877 (Ala.Civ.App.2003). “Even if a change of circumstances is shown, the trial court is not required to grant the modification.” Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala.Civ.App.1995) (citing Mullins v. Mullins, 475 So.2d 578 (Ala.Civ.App.1985)).

The determination of whether a party is in contempt of court rests entirely within the sound discretion of the trial court, and, “‘absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm.’ ” Gordon v. Gordon, 804 So.2d 241, 243 (Ala.Civ.App.2001) (quoting Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994)).

Analysis

The former husband argues that the trial court erred because, he says, it considered income other than his current income and, as a result, did not terminate his periodic-alimony payments.

“ ‘Periodic alimony ... “is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [paying spouse].” Hager v. Hager, 293 Ala. [47,] 55, 299 So.2d [743,] 750 [ (1974) ].... Periodic alimony is modifiable based upon changes in the parties’ financial conditions or needs, such as an increase in the need of the recipient spouse, a decrease in the income of the paying spouse, or an increase in the income of the recipient spouse. See Tibbetts v. Tibbetts, 762 So.2d 856, 858 (Ala.Civ.App.1999).’ ”

Bray v. Bray, 979 So.2d 798, 800-01 (Ala.Civ.App.2007) (quoting Daniel v. Daniel, 841 So.2d 1246, 1250 (Ala.Civ.App.2002)). “ ‘An obligation to pay alimony may be modified only upon a showing of a material change in circumstances that has occurred since the trial court’s previous judgment, and the burden is on the party seeking a modification to make this showing.’ ” Ederer v. Ederer, 900 So.2d 427, 428 (Ala.Civ.App.2004) (quoting Glover v. Glover, 730 So.2d 218, 220 (Ala.Civ.App.1998)). In deciding whether to modify periodic alimony, “[t]he trial court may consider several factors, including the earning capacity of each spouse, the recipient’s needs and the pay- or’s ability to meet those needs, and the estate of each spouse.” Kiefer, 671 So.2d at 711.

At the time of the parties’ divorce, the former husband earned $80,000 working for John Deere. In 2004, he took early retirement from John Deere and started working for James River Corporation at a salary that was $15,000 to $20,000 less. At that time, the former husband started collecting $800 per month and the former wife started collecting $700 per month in retirement benefits from John Deere. The former husband lost his job at James River in June 2007, and he stopped paying the former wife alimony at that time. At the time of the May 2008 hearing, the former husband had not yet found employment. The former husband stated that he had sought employment continuously between the time he had lost his employment and the date of the hearing. The former wife did not present any evidence to dispute the fact that the former husband had actively sought employment. The former husband stated that his current income is only the $800 per month he receives in retirement benefits. The former husband also stated that he had been using credit cards to meet his monthly expenses since he had lost his employment. The former husband remarried in 2001, and, at the time of the hearing, he had two children with his new wife. The former husband stated that his new -wife did not work outside the home.

The former wife testified that at the time of the divorce she was employed full time and earned $2,157 per month. The former wife stated that she suffers from various health problems, including mitral valve prolapse, heart murmur, and mini strokes. The former wife’s health problems have caused her to reduce her employment status from full time to part time. Because of that change, her employment income has been reduced to $1,710 per month. The former wife stated that, in order to keep from depleting her savings, she had reduced her expenses since the former husband had stopped paying alimony, including forgoing home and automobile maintenance, gifts, restaurant meals, and other expenses.

Periodic alimony is payable from the current earnings of the paying spouse. Bray v. Bray, 979 So.2d at 800. The former husband argues that because his current earnings consist only of $800 in retirement income, the trial court erred in not terminating his alimony obligation. The former wife argues that the former husband’s ability to earn, not his actual earnings, determines his ability to pay alimony. This court has held that the “ability to earn, as opposed to actual earnings, is a proper factor to consider” in deciding an award of periodic alimony. Ebert v. Ebert, 469 So.2d 615, 618 (Ala.Civ.App.1985). See Kiefer, 671 So.2d at 711 (“[t]he trial court may consider several factors, including the earning capacity of each spouse .... ”). However, in this case, the trial court did not make any findings of fact concerning the former husband’s ability to pay. Instead, the trial court apparently found that the former husband had actual current income sufficient to pay alimony to the former wife. Such a finding of fact is not supported by the evidence. The former wife did not present any evidence indicating that the former husband had any income other than $800 per month in retirement benefits. Therefore, the trial court did not have sufficient evidence on which to base its judgment finding that the former husband could pay his alimony obligation, and we reverse the trial court’s judgment on this issue.

The former husband next argues that the trial court erred in finding that he was in contempt and in ordering him to pay $14,500 in alimony arrearage. Specifically, the former husband argues that the trial court could not have held him in contempt because, he says, he did not have the ability to pay. “[Wjhen a delinquent payor presents evidence of an inability to pay as a defense to a charge of contempt, the burden of proof falls upon the payee to show 'beyond a reasonable doubt’ that the payor can pay.” McMorrough v. McMorrough, 930 So.2d 511, 514 (Ala.Civ.App.2005) (quoting Thomas v. Thomas, 406 So.2d 939, 942 (Ala.Civ.App.1981)). The former husband presented evidence indicating that his only income was $800 per month in retirement benefits. This evidence was sufficient to shift the burden to the former wife to show beyond a reasonable doubt that the former husband could pay. For the same reasons the trial court did not have sufficient evidence to support its decision to modify rather than terminate alimony, it also had insufficient evidence before it showing beyond a reasonable doubt that the former husband could pay his past alimony obligation. Therefore, we hold that the trial court exceeded its discretion in holding the former husband in contempt for failure to pay periodic alimony, and we reverse the trial court’s judgment on this issue.

Finally, the former husband argues that the trial court erred in awarding the former wife an attorney fee of $1,500 because, he argues, the attorney-fee award is predicated on the trial court’s holding him in contempt.

“In all actions for divorce or for the recovery of alimony, maintenance or support in which a judgment of divorce has been issued or is pending and a contempt of court citation has been made by the court against either party, the court may, of its discretion, upon application therefor, award a reasonable sum as fees or compensation of the attorney or attorneys representing both parties.”

Ala.Code 1975, § 30-2-54. Because we hold that the trial court erred in holding the former husband in contempt, there is nothing to support the trial court’s award to the former wife of an attorney’s fee. See Sosebee v. Sosebee, 896 So.2d 557, 564 (Ala.Civ.App.2004) (“We agree that § 30-2-54 precludes the award of an attorney fee to the petitioner in a contempt action when the trial court fails to make a finding of contempt against the defending party.”). Therefore, we reverse the trial court on this issue.

Conclusion

The trial court did not have sufficient evidence before it from which it could conclude that the former husband is capable of paying the former wife periodic alimony. The trial court also did not have sufficient evidence before it to support its finding of contempt or to support its awards to the former wife of an alimony arrearage or an attorney’s fee. Therefore, we reverse the trial court’s judgment and remand the cause for the entry of an order consistent with this opinion. The former wife’s request for attorney’s fees on appeal is denied.

REVERSED AND REMANDED.

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

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

      . The former wife had been awarded a percentage of the former husband's retirement benefits in the divorce judgment.

      . The trial court’s judgment included findings that "[the former husband] is paying his South Carolina expenses and supporting his new family somehow” and that "the Former Husband in this case simply cannot be destitute and maintain the lifestyle in South Carolina about which he testified at trial.”


author: THOMPSON, Presiding Judge.

text:
    KILGORE DEVELOPMENT, INC. v. WOODLAND PLACE, LLC.
    2080330.
    Court of Civil Appeals of Alabama.
    Sept. 4, 2009.
    Certiorari Denied May 7, 2010 Alabama Supreme Court 1081766.

      Isaac P. Espy and Mark A. Seogin of Espy, Nettles, Seogin & Brantley, P.C., Tuscaloosa, for appellant.
    Suzanne H. Mills of Dorroh & Associates, P.C., Tuscaloosa, for appellee.
   THOMPSON, Presiding Judge.

Kilgore Development, Inc. (“Kilgore”), appeals from the trial court’s judgment determining that Woodland Place, LLC (“Woodland Place”), was entitled to money held in escrow pursuant to a contract to purchase lots in a proposed subdivision. Kilgore appealed to the supreme court which transferred the case to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Woodland Place purchased a parcel of land in Tuscaloosa County with the intention of developing a subdivision on the land. On October 25, 2005, Woodland Place entered into a “Lot Purchase Agreement” (“the contract”) with Kilgore, pursuant to which Kilgore agreed to purchase 44 lots upon which to construct single-family houses in the subdivision. Kilgore deposited $40,000 in escrow with Pritchett-Moore, Inc.

At the time that Kilgore and Woodland Place entered into the contract, no map or plat of the proposed subdivision had been recorded or even approved by the appropriate authorities. The contract provided that if Woodland Place had not recorded the final plat of the subdivision by June 30, 2006, “then, at [Kilgorej’s sole option, this Agreement may be terminated and the Deposit returned to [Kilgore].”

The contract also provided for the cure of any defaults as follows:

“No failure or default by [Kilgore] or [Woodland Place], including failure to timely exercise options, shall result in the termination or limitation of any right hereunder or the exercise of any rights or remedies with respect to failure or default unless and until [Woodland Place] and [Kilgore] shall have been notified in writing and shall have failed to remedy said failure within fifteen (15) days after the receipt of said written notice or if the cure thereof cannot be completed within fifteen (15) days, then a reasonable period of time not to exceed an additional thirty (30) days provided the party diligently and continuously pursues such cure.”

On February 23, 2007, almost eight months after the date the contract called for recordation of the subdivision plat, Kil-gore sent a letter to Woodland Place stating that Kilgore was exercising its option to terminate the contract because the plat had not been recorded. Kilgore demanded the return of the money being held in escrow. The appropriate Tuscaloosa County authorities approved the final plat on March 14, 2007. The next day, March 15, 2007, the 21st day after Kilgore had notified Woodland Place that it intended to terminate the contract, the plat was recorded in the Tuscaloosa County Probate Court.

Kilgore contended that Woodland Place had failed to timely cure its failure to record the plat and that, therefore, it was entitled to the return of the money being held in escrow. Woodland Place asserted that recordation was completed within the 30-day grace period allowed by the contract and that, therefore, it was entitled to keep the money being held in escrow. Pritchett-Moore filed an interpleader action with respect to the escrow money; Kilgore filed a cross-claim against Woodland Place alleging breach of contract. Woodland Place then filed a counterclaim against Kilgore in which it alleged breach of contract and fraud.

After a bench trial in which both documentary and ore tenus evidence were presented, the trial court found that the “subdivision control statutes,” §§ 11-52-30 et seq., Ala.Code 1975, which, among other things, bar the sale of lots in a subdivision until recordation of the final approved plat, did not invalidate the contract between Kilgore and Woodland Place. The trial court also found that Woodland Place had been in default because it had failed to record the subdivision plat by the time specified by the contract. The court also found, however, that Woodland Place had cured that default by recording the plat on March 15, 2007. Specifically, the court determined, “[r]ecordation was not possible within 15 days” of Kilgore’s notice of termination of the contract “since the final plat was not approved by the required authorities until March 14, 2007.” The court found that because the plat was recorded within the 80-day grace period provided by the contract, Woodland Place had cured the default, and it was entitled to the escrow money.

Kilgore contends that the trial court erred by enforcing the contract because, it says, the contract was illegal, and thus void, under the “subdivision control statutes.” The first of the statutes at issue, § ll-52-30(b), Ala.Code 1975, provides as follows:

“No map or plat of any subdivision shall be recorded, and no property shall be sold referenced to such map or plat, until and unless it has been first submitted to and approved by the county engineer or, in his absence, by the acting county engineer of such county, who shall examine same for compliance with the specifications and regulations of the county commission of such county and, if it is in compliance, shall note his approval on such map or plat by noting thereon ‘approved,’ giving the date of such approval and signing same in his official capacity.”

Section 11-52-33, the statute setting forth the penalty for violating § 11-52-30, provides as follows:

“Whoever, being the owner or agent of the owner of any land located within a subdivision, transfers or sells or agrees to sell or negotiates to sell any land by reference to or exhibition of or by other use of a plat of a subdivision before such plat has been approved by the planning commission and recorded or filed in the office of the appropriate county probate office shall forfeit and pay a penalty of $100.00 for each lot or parcel so transferred or sold or agreed or negotiated to be sold, and the description of such lot or parcel by metes and bounds in the instrument of transfer or other document used in the process of selling or transferring shall not exempt the transaction from such penalties or from the remedies provided in this section.
“The municipal corporation may enjoin such transfer or sale or agreement by a civil action for injunction brought in any court of competent jurisdiction or may recover the same penalty provided in this section by a civil action in any court of competent jurisdiction.”

It has long been the law in Alabama that when a contract is made in violation of a statute, that contract is generally void and unenforceable.

“A purported contract obtained by a violation of ... law is void. Woods & Co. v. Armstrong, 54 Ala. 150, 152 (1875) (‘ “It has been repeatedly determined that a penalty inflicted by statute upon an offense, implies a prohibition, and a contract relating to it is void, even where it is not expressly declared by the statute that the contract shall be void.’”); Western Union Telegraph Co. v. Young, 138 Ala. 240, 248, 36 So. 374, 375 (1903) (‘[A]ll contracts which are made in violation of a penal statute are as absolutely void as if the law had in so many words declared that they should be so.... It is not necessary that a statute should impose a pehalty for doing or omitting to do something in order to make a contract void which is opposed to its operation. It is sufficient if the law prohibits the doing of the act, and when it does, the court, being organized under the law, and required to administer it, cannot enforce any supposed rights predicated upon a prohibited act or omission to perform an act that is prohibited.’) (citations and internal quotation marks omitted); Gill Printing Co. v. Goodman, 224 Ala. 97, 102, 139 So. 250, 254 (1932) (‘[Cjontracts specially prohibited by law, or the enforcement of which violated a law, or the making of which violated the law which was enacted for regulation and protection, as distinguished from a law created solely for revenue purposes, [are] void and nonenforceable.’) (citations and internal quotation marks omitted); Marx v. Lining, 231 Ala. 445, 448, 165 So. 207, 209-10 (1935) (Tt is established by a long line of decisions of this court that contracts specifically prohibited by law, or the enforcement of which violates the law, or the making of which violates the laws which were enacted for regulation and protection, as distinguished from a law created solely for revenue purposes, are void and unenforceable.’). See also Bankers & Shippers Ins. Co. v. Blackwell, 255 Ala. 360, 365, 51 So.2d 498 (1951).”

Johnson Mobile Homes of Alabama, Inc. v. Hathcock, 855 So.2d 1064, 1069 (Ala.2003).

A comparison between a regulatory statute and a statute created for revenue purposes is helpful to our analysis. Our supreme court held that §§ 34-8-1 et seq., Ala.Code 1975, which related to qualifications and licensing requirements for general contractors, were enacted “to protect the public against incompetent contractors for certain-type structures, and also to better assure properly constructed structures which [are] free from defects and dangers to the public.” Cooper v. Johnston, 283 Ala. 565, 567, 219 So.2d 392, 394 (1969). On the other hand, our supreme court has determined that § 40-12-84, Ala.Code 1975, which requires a construction contractor to obtain a business license from the probate judge in the county where the contractor has his principal office is not a regulatory statute designed to protect the public from incompetent contractors, but is merely a statute designed to raise revenue. Haskew v. Green, 571 So.2d 1029 (Ala.1990).

In passing the initial “subdivision control statutes,” which are predecessors to the current statutes, the Alabama Leg-Mature stated that the purpose of the statutes was to provide for local planning commissions and to provide for “[t]he regulation of subdivisions of land.” Title, Ala. Gen. Acts 1935, Act No. 534, p. 1126. The statutes at issue are aimed at preventing developers from selling tracts of land within a subdivision before the plat of that subdivision has been approved and recorded; they are in place to protect the public and not to raise revenue. Therefore, we conclude that a contract obtained in violation of the subdivision control statutes is void. See Cooper, supra.

Kilgore argues that § 11-52-33 prohibits the sale or the negotiation for the sale of any property in a proposed subdivision before the subdivision plat has been approved pursuant to § 11-52-30 and recorded in the proper probate court. Kil-gore asserts that because the proposed subdivision plat had not been approved and recorded at the time it entered into the contract with Woodland Place to purchase certain enumerated lots within the subdivision, the contract was illegal and, thus, void.

On the other hand, Woodland Place argues that §§ 11-52-30 and -33 apply only to those situations in which a developer sells or negotiates to sell a lot within a proposed subdivision to an individual; it contends that the statutes do not apply to situations like the instant case, in which the developer enters into a contract to sell specific lots to a second developer on which to build houses within the proposed subdivision.

The resolution of this dispute depends on the meaning of those statutes; however, there are no opinions interpreting §§ 11-52-30 and -33. Therefore, we turn to the rules of statutory construction to discern their meanings.

“ ‘ “The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute.” IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). “ ‘However, when possible, the intent of the legislature should be gathered from the language of the statute itself.’” Perry v. City of Birmingham, 906 So.2d 174, 176 (Ala.2005) (quoting Beavers v. Walker County, 645 So.2d 1365, 1376 (Ala.1994)); Ex parte Lamar Advertising Co., 849 So.2d 928, 930 (Ala.2002). Therefore, in “determining the meaning of a statute, we must begin by analyzing the language of the ’ statute.” Holcomb v. Carraway, 945 So.2d 1009, 1018 (Ala.2006).
“ ‘ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.”
‘IMED Corp., 602 So.2d at 346; see also Wynn v. Kovar, 963 So.2d 84 (Ala.Civ.App.2007). Stated differently, when “the language of a statute is plain and unambiguous, ... courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning — they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature.” Ex parte T.B., 698 So.2d 127, 130 (Ala.1997); see also Perry, 906 So.2d at 176; Ex parte Lamar Advertising Co., 849 So.2d at 930; Beavers, 645 So.2d at 1376-77; Ex parte United Serv. Stations, Inc., 628 So.2d 501 (Ala.1993); and IMED Corp., 602 So.2d at 344.’
“Alabama Dep’t of Envtl. Mgmt. v. Legal Envtl. Assistance Found., Inc., 973 So.2d 369, 376 (Ala.Civ.App.2007).”

Boone v. Birmingham Bd. of Educ., 45 So.3d 757, 761 (Ala.Civ.App.2008).

‘“Further, it is well established that “ ‘[s]ections of the Code dealing with the same subject matter are in pari mate-ria. As a general rule, such statutes should be construed together to ascertain the meaning and intent of each.’ ” ’ State v. Amerada Hess Corp., 788 So.2d 179, 183 (Ala.Civ.App.2000) (quoting New Joy Young Rest., Inc. v. State Dep’t of Revenue, 667 So.2d 1384, 1387 (Ala.Civ.App.1995) (quoting in turn Locke v. Wheat, 350 So.2d 451, 453 (Ala.1977))).”

Gartman v. Limestone County Bd. of Educ., 939 So.2d 926, 929 (Ala.Civ.App.2006). Thus, we construe § ll-52-30(b) and § 11-52-33 together.

The statutes at issue are straightforward. Section ll-52-30(b) provides that no subdivision plat may be recorded, “and no property shall be sold referenced to such map or plat,” until the county engineer has determined that the subdivision complies with the requirements established by the county commission. Section 11-52-33 sets forth the penalty for “[w]ho-ever, being the owner or agent of the owner of any land located within a subdivision, transfers or sells or agrees to sell or negotiates to sell any land by reference to or exhibition of or by other use of a plat” before that plat has been approved and recorded. There is simply no language in either § 11-52-30 or § 11-52-33 that would limit their application only to individuals. The plain language of the statutes provide that the owner of the property to be subdivided cannot negotiate the sale of that property “by reference to or exhibition of or by other use of a plat of a subdivision before such plat has been approved by the planning commission and recorded or filed” in the appropriate probate court. No exceptions to those requirements are included in either statute at issue.

In this case, the contract between Kilgore and Woodland Place provided that Kilgore would purchase 44 lots in the proposed subdivision, “more particularly described on the unrecorded map or plat” of the subdivision. A copy of the plat, which indicated the proposed lots, was attached to the contract as an exhibit. The contract was executed on October 28, 2005. The plat was approved on March 14, 2007, and recorded the next day. The undisputed evidence indicates that Woodland Place negotiated the sale of lots in a proposed subdivision almost 18 months before the plat of the subdivision was approved and recorded in the Tuscaloosa County Probate Court. Because the contract was made in violation of §§ ll-52-30(b) and -33, it is void, and Kilgore is entitled to rescind the contract. Accordingly, the trial court erred in awarding the money that Kilgore had placed in escrow to Woodland Place.

Because we hold that the contract was void, we need not consider Kilgore’s alternative contention that Woodland Place did not timely file the plat under the terms of that contract.

For the reasons stated above, the judgment of the trial court is reversed, and the cause is remanded for the trial court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

      . The contract provided that the amount to be held in escrow was to be $44,000, but the parties agreed to $40,000.

      . We note that the Alabama Legislature amended § 11-52-30, Ala.Code 1975, effective May 14, 2009. The subsection at issue in this appeal, § 11 — 52—30(b), has been redesig-nated as subsection (c) in the amended statute. The subsection also has grammatical changes, but it includes no substantive changes. Because this action was resolved in the trial court before the effective date of the amendment, we set forth the previous version, i.e., the version that was in effect at the time this matter was decided by the trial court.

      . This holding is consistent with the holdings of courts in other states considering a similar issue. See, e.g., Taunt v. Moegle, 344 Mich. 683, 75 N.W.2d 48 (1956) (contract for the purchase of lots in a proposed subdivision was void when seller used proposed plat for sales purposes in violation of Michigan's subdivision control statutes, and no action or inaction on the part of the purchaser constituting waiver or estoppel could be used to prevent the purchaser from seeking rescission of the contract or alleging the contract was void); and In re Los Angeles Land & Invests., Ltd., 282 F.Supp. 448 (D.Haw. 1968) (contracts for sale of real estate in California or Hawaii that are not in compliance with laws of those states are regarded as void or voidable, and investors may recover all payments made).


author: PITTMAN, Judge.

text:
    Alisia Denese ROSE v. Eric JACKSON.
    2071057.
    Court of Civil Appeals of Alabama.
    Oct. 16, 2009.
    Rehearing Denied Dec. 18, 2009.
    Certiorari Denied April 9, 2010 Alabama Supreme Court 1090439.
    Karen Laneaux of The Law Office of Sandra Lewis, P.C., Montgomery, for appellant.
    Fred F. Bell, Montgomery, for appellee.
   PITTMAN, Judge.

Alisia Denese Rose (“the mother”) appeals from a judgment modifying the child-custody provisions of the judgment that divorced her from Eric Jackson (“the father”). The mother contends that the trial court erred in awarding custody of the parties’ child to the father.

Apparently, the parties were divorced by a judgment that incorporated an agreement of the parties and that was entered on April 30, 2007. Four months later, the father filed a pleading asking the trial court to find the mother in contempt of court for having failed to comply with certain provisions of the parties’ divorce judgment. In that pleading, the father sought sanctions against the mother, including the sanction of awarding custody of the parties’ child to the father. Subsequently, the father filed an amendment to his pleading in which he requested a modification of the custody provisions of the parties’ divorce judgment, specifically seeking an award of physical custody of the child.

The trial court conducted an ore tenus proceeding on April 3, 2008. The day before the hearing, the mother filed a request for an increase in child support and a request for a modification of the father’s visitation schedule; her requests were denied as having been untimely filed. During the hearing, only the father and the mother testified. Following that proceeding, the trial court awarded the father custody of the child and awarded the mother standard visitation. The mother filed a timely appeal.

The mother first contends that the trial court erred in entering a judgment awarding the father primary physical custody, a custody modification as to which the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), applied. She asserts that there was insufficient evidence to support the trial court’s finding “that the change in custody would materially promote the [child’s] best interest and that the benefits of the requested change would more than offset the inherently disruptive effect caused by uprooting [her].” See McLendon, 455 So.2d at 865.

The evidence adduced at trial indicated that the mother had violated the parties’ divorce judgment in a number of particulars: in failing to return the child to preschool at Head Start, in failing to follow the stipulated visitation schedule, and in defaulting on an automobile lease-purchase arrangement. The reasons for each of those violations, however, were disputed.

The father testified that he had been very unhappy with the mother’s failure to follow all the conditions of their divorce judgment. The father also stated that the only reason he had filed the contempt action was to force the mother into treating him better vis-a-vis visitation. Although the child did not return to Head Start as directed in the parties’ divorce judgment, she did attend OIC Early Childhood Development Center; the mother stated that the father filled out the appropriate paperwork for OIC. The father admitted that he never attempted to process the Head Start paperwork himself. Moreover, by the time of the hearing in April 2008, the child was ready to begin public school in the fall; the mother stated that the child had been admitted into a local magnet-school program for the 2008-2009 school year. The evidence established that the child had essentially completed preschool and had been admitted to a magnet-school kindergarten class; none of these facts indicates that the child’s welfare had been affected in any manner.

The father also testified that the mother had injured his credit rating by defaulting on a motor-vehicle lease-purchase agreement on a vehicle that she had been awarded in the parties’ divorce judgment. Although the testimony was conflicting, the mother admitted that her annual salary had decreased from $30,000 to $18,000 and that she had been unable to make the monthly payments on the vehicle. At the time of trial, she was negotiating with the pertinent finance company to establish a payment schedule that would satisfy the debt owed on the vehicle within the limits of her monthly income. The father did not indicate that the mother’s default on the lease-purchase agreement had in any way affected the child’s welfare; in fact, he testified that the mother had been able to afford to buy a used vehicle after the leased vehicle had been repossessed.

Finally, we note that most of the father’s testimony surrounded the mother’s failure to follow the visitation schedule set out in the parties’ divorce judgment. The father admitted during the hearing that the parties had not had any problems with visitation since he had filed his pleading seeking custody of the child. In Kelley v. Akers, 793 So.2d 821 (Ala.Civ.App.2001), this court stated that although the mother in that case had interfered with the parent-child relationship and had hindered the noncustodial parent’s visitation attempts, the trial court could not properly modify custody solely on that basis. Id. at 827; see also Vick v. Vick, 688 So.2d 852, 856 (Ala.Civ.App.1997).

Moreover, in a recent case, Brooks v. Brooks, 991 So.2d 293 (Ala.Civ.App.2008), this court noted that when there is conflicting disputed testimony, this court may uphold the trial court’s judgment only insofar as it relies on one of the versions of conflicting testimony. However, when the evidence is clear or the question is one of law, the ore tenus rule, which requires an appellate court to presume that a trial court’s findings on disputed facts are correct, has no application. See Brooks, 991 So.2d at 302. Just as in Brooks, the father’s testimony primarily addressed the parties’ visitation disputes; he also alleged that the mother had improperly affected his credit rating in a negative manner and that the mother had violated the divorce judgment by removing the child from Head Start. Those assertions by the father fail to satisfy the father’s burden under Ex parte McLendon. The father faded to establish how any of those actions by the mother had affected the child’s welfare. Moreover, the father did not show that material changes affecting the child’s welfare had occurred since the original award of custody, nor did he demonstrate how the positive good brought about by a change in custody would more than offset the disruptive effect of uprooting the child. Thus, none of the reasons cited by the trial court are sufficient to meet the standard set forth in Ex parte McLendon to support a modification of custody in this case.

Based upon the evidence of record, we must conclude that the custody modification in this case is plainly erroneous; thus, we reverse the judgment modifying custody and remand the cause to the trial court.

REVERSED AND REMANDED.

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