author: PER CURIAM.

text:
    SOUTHERN HOMES, AL, INC. v. BERMUDA LAKES, LLC.
    1080270.
    Supreme Court of Alabama.
    Aug. 27, 2010.

      Floyd D. Gaines, Andrew P. Walsh, and Kimberly M. Bawgus of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham; and James M. Garner, Martha Y. Curtis, and Matthew C. Clark of Sher, Garner, Cahill, Richter, Klein & Hilbert, L.L.C., New Orleans, Louisiana, for appellant.
    Jere F. White, Jr., Harlan I. Prater IV, and Lucy E. Tufts of Lightfoot, Franklin & White, L.L.C., Birmingham, for appel-lee.
   PER CURIAM.

Southern Homes, AL, Inc. (“Southern Homes”), appeals from a preliminary injunction entered by the Madison Circuit Court in favor of Bermuda Lakes, LLC (“Bermuda”), preventing Southern Homes from proceeding “in any way with [Southern Homes’] action styled Southern Homes, A.L., Inc. v. Bermuda Lakes, LLC, Case No. 08-4797, which is now pending in Division H-12 of the Civil District Court for the Parish of Orleans in the State of Louisiana (the ‘Louisiana action’), or in any other proceeding that arises from the controversy that is the subject of this action or involves or relates to [Bermuda] or any of its related or affiliated entities.” We reverse and remand.

Facts and Procedural History

On September 5, 2007, Southern Homes, an Alabama corporation with its principal place of business in Slidell, Louisiana, entered into a contract to purchase approximately 87.62 acres of land in Madison County, Alabama, from Fanning School Communities, LLC (“Fanning”), and Briar Patch, LLC (“Briar Patch”). Before the sale the land was to be subdivided into approximately 269 residential lots. Under the contract, Southern Homes was to purchase the property in four separate “take downs.” Southern Homes was required to purchase a specific number of lots for each take down. The sellers were required to satisfy certain conditions concerning the preparation of the lots before each take' down. Pursuant to the contract, Southern Homes provided the sellers with a $300,000 irrevocable standby letter of credit, which the sellers could draw on if Southern Homes failed to close on any take down because of á default by Southern Homes. The letter of credit was issued by Whitney National Bank located in New Orleans, Louisiana. The letter of credit provided that all drafts drawn pursuant to it must be presented to the bank’s International Banking Department in New Orleans.

Later, the contract to purchase the land was amended to change the name of the sellers to Bermuda, a limited liability company formed by the principals of Fanning and Briar Patch after the consummation of the original contract to purchase. The amendment was effective January 3, 2008.

On May 2, 2008, Southern Homes gave written notice to Bermuda that it was terminating the contract to purchase because, Southern Homes said, Bermuda had failed to timely satisfy the multiple conditions it was required to satisfy before the initial take down. The written notice also asked for the return of the $300,000 letter of credit.

On the same day Southern Homes gave written notice to Bermuda that it was terminating the contract to purchase, Southern Homes also filed a declaratory-judgment action against Bermuda in the Civil District Court for the Parish of Orleans in the State of Louisiana (“the Louisiana action”). That action sought a judgment declaring that Southern Homes had lawfully terminated the purchase contract and that it was entitled to a return of the letter of' credit.

In a letter dated June 18, 2008, Bermuda advised Southern Homes that it had completed all the take-down conditions and that it was prepared to immediately close on the first take down. The letter also stated that, under the terms of the contract, the time for Bermuda’s performance had been extended 90 days as the result of Bermuda’s inability to obtain necessary governmental approvals related to a wetlands issue. Southern Homes did not close on the property.

On September 15, 2008, Bermuda filed the present action in the Madison Circuit Court (“the Alabama action”), suing Southern Homes and its principals, Adrian Kornman and Chris Kornman, on theories of fraud and breach of contract. On October 24, 2008, Bermuda moved for a preliminary injunction, seeking to enjoin Southern Homes from prosecuting the Louisiana action and from engaging in any other proceedings in Louisiana that might arise from the controversy that is the subject of the Alabama action. Bermuda alleged that without the injunction, it would be “subjected to duplicative litigation, the possibility of inconsistent results, and unnecessary hardship and costs.” Bermuda further alleged that the case belongs in Alabama because the case involves a contract between two Alabama corporations for the sale of land located in Alabama.

On October 30, 2008, Southern Homes moved for a preliminary injunction in the Louisiana action, seeking to enjoin Bermuda from prosecuting the Alabama action. On the same day, the Louisiana court set Southern Homes’ motion for a preliminary injunction for a hearing on November 13, 2008. On November 4, 2008, the Madison Circuit Court set Bermuda’s motion for a preliminary injunction for a hearing on November 10, 2008. On November 5, 2008, Southern Homes moved the Louisiana court to set an expedited hearing of its request for a preliminary injunction. On the same day, the Louisiana court set Southern Homes’ motion for a preliminary injunction for a hearing on November 7, 2008. At 9:48 a.m. on November 6, 2008, Bermuda filed a “verified emergency motion for preliminary injunction and other equitable relief,” asking the Madison Circuit Court to conduct an immediate hearing on Bermuda’s motion for a preliminary injunction. Shortly thereafter, the Madison Circuit Court conducted a hearing on Bermuda’s motion for a preliminary injunction in which Southern Homes’ counsel participated by telephone and Bermuda’s counsel participated in person. At 11:45 a.m. on November 6, 2008, “[ajfter considering the arguments and authorities of counsel and acting pursuant to its general authority to do equity,” the Madison Circuit Court issued a preliminary injunction enjoining Southern Homes “from proceeding in any way with [the Louisiana action], or in any other proceeding that arises from the controversy that is the subject of this action or involves or relates to [Bermuda] or any of its related or affiliated entities.” The Madison Circuit Court further held:

“1. Venue is proper in Madison County and this Court has jurisdiction over all of the parties and their counsel.
“2. The Louisiana action and this action involve substantially- the same controversy, i.e., [Bermuda’s] claim against Southern Homes for breach of contract. This action also involves [Bermuda’s] fraud claims against the principals of Southern Homes, Adrian Kornman and Chris Kornman.
“3. [Bermuda] will suffer irreparable harm for which there is no adequate remedy at law if it is required to litigate the same controversy in two courts.
“4. [Bermuda] has established that it has a reasonable chance of success on the merits of its breach of contract claim, i.e., that a valid contract exists, Southern Homes did not perform, [Bermuda] is capable of performing, and [Bermuda] has been damaged.
“5. The equities clearly favor [Bermuda] inasmuch as this- is a dispute involving Alabama real estate that is the subject of a contract governed by Alabama law between two Alabama companies. This is a controversy that should be litigated in Alabama. It would be unfair to subject [Bermuda] to duplica-tive litigation in Louisiana, thereby creating the possibility of inconsistent results and certain unnecessary hardship and costs. Southern Homes is an Alabama company, subject to Alabama law and jurisdiction in Alabama. Southern Homes will not be prejudiced by having to litigate this Alabama dispute in Alabama.”

On November 20, 2008, Southern Homes filed its appeal from the preliminary injunction entered by the circuit court.

Standard of Review

In Holiday Isle, LLC v. Adkins, 12 So.3d 1173 (Ala.2008), this Court set forth the standard for reviewing an order issuing a preliminary injunction:

“We have often stated: ‘The decision to grant or to deny a preliminary injunction is within the trial court’s sound discretion. In reviewing an order granting a preliminary injunction, the Court determines whether the trial court exceeded that discretion.’ SouthTrust Bank of Alabama, N.A. v. Webb-Stiles Co., 931 So.2d 706, 709 (Ala.2005).

“A preliminary injunction should be issued only when the party seeking an injunction demonstrates: ■

“ ‘ “(1) that without the injunction the [party] would suffer irreparable injury; (2) that the [party] has no adequate remedy at law; (3) that the [party] has at least a reasonable chance of success on the ultimate merits of his case; and (4) that the hardship imposed on the [party opposing the preliminary injunction] by the injunction would not unreasonably outweigh the benefit accruing to the [party seeking the injunction].” ’
“Ormco Corp. v. Johns, 869 So.2d 1109, 1113 (Ala.2003) (quoting Perley v. Tapscan, Inc., 646 So.2d 585, 587 (Ala.1994)).
“To the extent that the trial court’s issuance of a preliminary injunction is grounded only in questions of law based on undisputed facts, our longstanding rule that we review an injunction solely to determine whether the trial court exceeded its discretion should not apply. We find the rule applied by the United State Supreme Court in similar situations to be persuasive: ‘We review the District Court’s legal rulings de novo and its ultimate decision to issue the preliminary injunction for abuse of discretion.’ Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006); see also Justice Murdock’s special writing while sitting as a judge on the Court of Civil Appeals in City of Dothan v. Eighty-Four West, Inc., 871 So.2d 54, 60 (Ala.Civ.App.2003) (Murdock, J., concurring specially on application for rehearing) (cited with approval in McGlathery v. Richardson, 944 So.2d 968, 970 (Ala.Civ.App.2006)).”

12 So.3d at 1175-76.

Discussion

Southern Homes argues, among other things, that it received insufficient notice under Rule 65(a)(1), Ala. R. Civ. P., of the hearing on Bermuda’s motion for a preliminary injunction, in violation of Southern Homes’ due-process rights. We agree.

Rule 65(a)(1), Ala. R. Civ. P., provides that “[n]o preliminary injunction shall be issued without notice to the adverse party.” Rule 65(a)(1) does not specify how much notice must be given to the adverse party before a preliminary injunction can be issued. However, as the United States Supreme Court has held in interpreting the federal equivalent of Rule 65(a), the notice required by Rule 65(a) “implies a hearing in which the defendant is given a fair opportunity to oppose the application and to prepare for such opposition.” Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 434 n. 7, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974). See also Alabama Republican Party v. McGinley, 893 So.2d 337, 344 (Ala.2004) (holding that “[t]he hallmarks of procedural due process are notice and ‘the opportunity to be heard “at a meaningful time and in a meaningful manner” ’ ” (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), quoting in turn Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965))).

In Granny Goose Foods, the adverse party was given notice by telephone on the same day it was served with all the documents and the hearing was held, and the adverse party’s counsel was present in the courtroom and argued on behalf of the adverse party at that hearing. The United States Supreme Court recognized that Rule 65(b), Fed.R.Civ.P., like Rule 65(b), Ala. R. Civ. P., authorizes a trial court to issue a 10-day temporary restraining order (“TRO”) without notice to the adverse party. The Court compared the lack of any requirement of notice in Rule 65(b) for a TRO with the explicit notice requirement for issuing a preliminary injunction under Rule 65(a), Fed.R.Civ.P. The Court held that the “informal, same-day notice” that was provided to the adverse party in Granny Goose Foods, “desirable though it may be before a restraining order is issued, is no substitute for the more thorough notice requirements which must be satisfied to obtain a preliminary injunction of potentially unlimited duration.” 415 U.S. at 434 n. 7. See also Ciena Corp. v. Jarrard, 203 F.3d 312, 319 (4th Cir.2000) (holding that “[bjecause a preliminary injunction is unlimited in duration, its entry always requires notice to the opposing party sufficient to give that party an opportunity to prepare an opposition to entry of an injunction”).

In the present case, it is undisputed that Southern Homes had less than two hours’ notice of the hearing on Bermuda’s motion for a preliminary injunction and that Southern Homes’ counsel participated in the hearing only by telephone. Southern Homes was not able to submit written arguments in opposition to the motion or to submit evidence to support its arguments. Also, under the circumstances, Southern Homes could not call any witnesses.

Bermuda’s primary response to Southern Homes’ argument concerning inadequate notice is that “Southern Homes is responsible for any alleged due process deficiencies” because, Bermuda says, “[Southern Homes’] own attempts to expedite its own hearing in Louisiana ... led to thé shorter notice it received of the November 6 hearing in Alabama.” Bermuda’s brief, at 34, 36. However, what was happening in the Louisiana action does not alleviate the notice requirements of Rule 65(a)(1), Ala. R. Civ. P., in the Alabama action. In the present case, before a preliminary injunction with its unlimited duration could be issued, Southern Homes had to be given notice of a hearing in which it was given a fair opportunity to oppose the motion for the preliminary injunction and to prepare for such opposition. Southern Homes simply was not given such notice. Therefore, under these circumstances, we conclude that Southern Homes did not have a fair opportunity to oppose the motion for á preliminary injunction, and, thus, the circuit court exceeded its discretion in issuing the preliminary injunction.

Conclusion

Based on the foregoing, we reverse the Madison Circuit Court’s judgment and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . On the same day that Southern Homes filed its notice of appeal to this Court, Southern Homes filed a motion in the circuit court, asking the court to dissolve the preliminary injunction. Southern Homes attached several exhibits to that motion, including affidavits, pleadings from the Louisiana action, and orders issued by the Louisiana court. That motion and its exhibits were originally included as part of the record on appeal. However, Bermuda moved the circuit court to correct the record on appeal, and the circuit court ordered that all pleadings and evidence entered into the record after it granted the preliminary injunction on November 6, 2008, be stricken from the record on appeal. Southern Homes filed a motion in this Court to overturn, in part, the order of the circuit court striking documents from the record on appeal. On April 29, 2009, this Court issued an order denying Southern Homes' motion to overturn, in part, the order of the circuit court striking documents from the record on appeal.

      . Rule 65(a)(1), Fed.R.Civ.P., provides that "[t]he court may issue a preliminary injunction only on notice to the adverse party.”


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    DeSHAZO CRANE COMPANY, LLC v. James L. HARRIS.
    2070838.
    Court of Civil Appeals of Alabama.
    Sept. 18, 2009.
    Certiorari Denied Sept. 10, 2010 Alabama Supreme Court 1090008.

      Steven T. McMeekin of Wainwright, Pope & McMeekin, P.C., Birmingham, for appellant.
    Clifford W. Cleveland of Cleveland & Colley, P.C., Prattville, for appellee.
   PITTMAN, Judge.

This appeal from a judgment of the Chil-ton Circuit Court focuses on whether the evidence presented in support of a workers’ compensation claim asserted by James L. Harris (“the employee”) against DeSha-zo Crane Company (“the employer”) based upon a cumulative-physical-stress injury purportedly arising out of and in the course of his employment met the “clear and convincing” evidentiary standard required by the Alabama Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq. (“the Act”).

The employee sued the employer, seeking an award of workers’ compensation benefits. The employer argued that it could not be shown by clear and convincing evidence that the employee’s eye disorder had been caused by his employment. The trial court, after an ore tenus proceeding, awarded benefits, and it is from that judgment that the employer has appealed.

The employee, a welder for all of his adult life, worked for the employer from 1997 until 2000 and again from 2002 to 2004. Late in 2002, when he began to experience impaired vision, the employee consulted an optometrist. The optometrist referred the employee to a retina surgeon, Dr. Milton White. Dr. White determined that the employee suffered from choroidal neovascularization, also called choroidal neovascular membrane (“CNVM”).

CNVM is a condition in which new, abnormal blood vessels grow in the choroid, a layer of tissue behind the retina. These blood vessels can leak blood and clear fluid into the retina, interfering with vision and potentially causing blindness. The employee’s vision, formerly good, declined by 2005 to 20/200 in his right eye and 20/3,600 in his left eye, rendering him legally blind and unable to drive an automobile or to work as a welder. The employee has no other work skills, and the evidence at trial clearly established that he is totally disabled.

The record reflects that the field of medicine acknowledges many potential causes of CNVM, including but not limited to ordinary age-related macular degeneration; histoplasmosis (a condition caused by exposure to airborne fungi from bird droppings); physical trauma; nearsightedness; and injury from unprotected exposure to strong ultraviolet (“UV”) radiation, such as that created by welding. It is common also for physicians to refer to a case of CNVM as “idiopathic” when the cause of a particular occurrence of the condition cannot be determined from an examination of the patient. The central fact question before the trial court was whether the employee’s CNVM was actually idiopathic or properly could have been found to have been caused by his welding activities for the employer.

The employer argues that the evidence presented by the employee to the trial court in an effort to establish that the CNVM arose from his employment did not meet the “clear and convincing” standard set forth in the Act at Ala.Code 1975, § 25-5-81(c). That section provides the following definition of “clear and convincing evidence”:

“evidence that, when weighted against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”

However, under our caselaw, the actual weighing of evidence “against evidence in opposition” is the province of the trial court. Even in the context of workers’ compensation claims that the Act requires to be proven by clear and convincing evidence, appellate courts are not permitted to reweigh the evidence presented to the trial court by, for instance, estimating the credibility of witnesses; rather, § 25-5-81(c) requires that the “firm conviction” arise in “the mind of the trier of fact,” not in the “mind” of the appellate court. See Ex parte McInish, 47 So.Bd 767, 773 (Ala.2008). The appellate court must review the evidence and the trial court’s judgment solely to answer, the question whether “ ‘the fact-finder reasonably could have determined that the fact was proven by clear and . convincing evidence.’ ” Id. at 774 (quoting KGS Steel, Inc. v. McInish, 47 So.3d 749, 759 (Ala.Civ.App.2006) (Mur-dock, J., concurring in the result)). In deciding whether it was reasonable for a trial court to have concluded that a fact was proven by clear and convincing evidence, i.e., whether it was reasonable for the fact-finder to reach a firm conviction as to each essential element of the claim and infer a high probability as to the correct; ness of the conclusion, the appellate court must limit its determination' to “whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court’s weighing of the evidence, that would” produce a firm conviction in the mind of the trier of fact. Ex parte McInish, 47 So.3d at 778.

As to the “substantial evidence” standard of appellate review, “substantial evidence” properly 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.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268-69 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Further, Ala.Code 1975, § 25-5-81(e)(2), mandates the use of the “substantial evidence” standard of appellate review when reviewing “pure findings of fact,” but it does not distinguish between cases in which a claimant’s eviden-tiary burden at trial is a “preponderance of the evidence” or “clear and convincing” evidence; because the Act is silent in that regard, appellate courts must review judgments by viewing evidence adduced to meet either the “preponderance” or the “clear and convincing” evidentiary burden under the same “substantial evidence” standard, foreclosing appellate reweighing of evidence in both types of cases. Ex parte McInish, 47 So.3d at 773. That said, the “substantial evidence” standard of review is applied in “necessarily different degrees” in the two types of cases, with “the quantum of proof necessary to sustain on appeal” a finding of fact in a “clear and convincing” context being “greater than” that in a “preponderance” context. Id. at 777-78.

Therefore, the proper standard to be applied in reviewing a judgment awarding benefits under the Act in response to a claim that requires the claimant to adduce proof amounting to clear and convincing evidence can be restated properly as follows: The trial court’s judgment is to be affirmed if the trial court was presented with evidence of such weight and quality that fair-minded persons, in the exercise of impartial judgment, reasonably could reach a firm conviction as to each essential element of the claim and infer a high probability as to the correctness of the conclusion.

In this case, the parties’ dispute and the evidence presented at trial focused on causation, as other elements of the employee’s claim were undisputed. Under the Act, the employee was required to prove that his CNVM arose out of, and in the course of, his employment with the employer— hex-e, that “flashes” from welding activity led to the employee’s vision impairment. Hammons v. Roses Stores, Inc., 547 So.2d 883, 885 (Ala.Civ.App.1989); Ala.Code 1975, § 25-5-51.

The record reflects that each welder’s workplace at the employei-’s premises was surrounded by standing portable sci-eens intended to pi-otect woi*kers on the factoi-y floor from the radiation created by the welding. The employee testified that there were occasions when screens separating him from other welders were removed by other employees while he was wearing his protective hood and welding. The employee further testified that he was certain that his CNVM could be traced to three or four particular incidents when his eyes had been exposed to the arcs of other welders on occasions when he had removed his welder’s hood to inspect his work without his having known that a coworker had removed one or more of the screens the employee relied on for protection. The employee and his paramour both testified that on one occasion, after such an incident, the employee had come home complaining of pain in his eyes, stating that he had “burned” his eyes at work; on that occasion, the employee’s paramour had transported the employee to an emergency room, and a doctor had prescribed medicated eye drops and a follow-up visit. Other testimony indicated that on other occasions when the employee had come home from work complaining of an eye burn the employee and his paramour would routinely apply that prescription medication or would administer a reportedly effective nonmedical remedy.

The employee was unable to produce any documentary evidence of the emergency-room visit, and although the employee was required by the employer’s personnel policy to report any incident of workplace injury, he never claimed that he had reported any of his three or four alleged workplace eye burns to the employer. Likewise, the employer maintained no records in the employee’s personnel file that indicated that the employee had made any report of a workplace injury, although federal law requires that employers create and retain such reports.

The witness who gave the most extensive and pertinent direct testimony, and who was the most comprehensively cross-examined witness, was the surgeon, Dr. White. .At trial, Dr. White adhered to his original diagnosis of the employee’s CNVM as being idiopathic, although at occasional points in his testimony he used such terms as “probable” and “probability” when discussing welding as a possible cause of the employee’s CNVM. The record also revealed that Dr. White previously had submitted to an insurer and to the employer a written opinion that the employee’s CNVM was not job-related.

In addition to that evidence, however, Dr. White explained at his deposition and at trial that, when CNVM is diagnosed, retinal specialists generally seek “associated findings” — abnormalities in the eye in addition to CNVM itself — that might suggest a cause of the patient’s CNVM. The “associated finding” suggesting UV radiation to be the cause of a particular case of CNVM is other scarring in the retina; however, the employee’s eyes did not exhibit any such “other scarring.” Moreover, Dr. White admitted that unprotected exposure to the flash of a nearby welding torch was the only named factor in the employee’s personal history that could possibly change the diagnosis from “idiopathic” CNVM to CNVM resulting from a known cause. Repeatedly, under both direct examination and cross-examination, Dr. White said “I don’t know” to questions asking what had caused the employee’s CNVM.' Dr. White did elaborate that, absent the employee’s history of welding work, he would have been “100%” certain that the “idiopathic” label was correct. Also repeatedly, Dr. White refused to say, because of the lack of associated medical findings, such as scarring,, whether it was “more likely than not” that the employee’s CNVM was caused by UV exposure, given the employee’s history as a welder. Ultimately, Dr. White refused to commit himself to the proposition that welding could be anything more than a possible cause of the employee’s CNVM.

“ ‘It is a well established principle that evidence presented by a [workers’] compensation claimant must be more than evidence of mere possibilities that would only serve to “guess” the employer into liability.’ ” Ex parte Southern Energy Homes, Inc., 873 So.2d 1116, 1122 (Ala.2003) (quoting Hammons v. Roses Stores, Inc., 547 So.2d at 885). However, although expert testimony might be required to establish causation in cases in which the “nature and origin” of the condition in question “is obviously beyond the understanding of the average person,” Ex parte Trinity Indus., Inc., 680 So.2d at 269, lay testimony may be combined with expert testimony in establishing the requisite proof of causation. Ex parte Price, 555 So.2d 1060, 1063 (Ala.1989). Further, the medical testimony need not express absolute certainty as to causation, id. at 1062, and trial courts are encouraged to view the evidence in its totality in reaching conclusions. Madix, Inc. v. Champion, 927 So.2d 833, 837-38 (Ala.Civ.App.2005). Finally, the fact-finder is authorized to find the causation element absent medical evidence to that effect. Pnce, 555 So.2d at 1062.

In this case, it was the employee’s burden to establish legal causation and medical causation. Legal causation, which has been defined so as to require that the employee’s job exposed him to a materially greater risk of developing CNVM than people ordinarily encounter, see, e.g., Ma-dix, 927 So.2d at 837, was undisputed; this risk is in fact an apparent reason for the employer’s having provided protective screens and welder’s hoods. Medical causation, which would require here that the employee’s work for the employer be a “contributing” cause of the CNVM, id., was disputed, and the trial court’s finding as to medical causation was, in effect, dis-positive of the entire case.

Here, the trial court was presented with the evidence previously discussed in detail, as well as evidence tending to show that the employee’s vision had been measured as being as acute as 20/20 immediately before he began his employment with the employer in 2002. Thus, the employee rapidly deteriorated from having excellent vision to suffering from legal blindness over the course of about three years. The pattern of injury followed the risks of the job and the course of the employee’s complaints, distinguishing the employee’s case from similar cases in which our courts have ruled in favor of employers (e.g., Ex parte Southern Energy Homes, 873 So.2d at 1122, in which physicians determined that the patient’s back injury, as diagnosed, was not consistent with the patient’s physical mobility or complaints of pain). Dr. White was unable to testify with any certainty regarding causation so as to favor either party’s position, distinguishing this case from Madix, 927 So.2d at 835, in which the pertinent physician testified that it was more likely than not that the claimant’s injury was not caused by workplace exposure.

Under the facts of this case, the trial court reasonably could have ruled in favor of either party. But having reviewed inconclusive medical evidence, the conflicting testimony from the parties as to workplace conditions (such as the placement and removal of protective screens), and the employee’s complete occupational and medical history, it appears to us that the trial court was presented with evidence of such weight and quality that, using fair-minded and impartial judgment, that court reasonably could have reached a firm conviction as to medical causation and inferred a high probability as to the correctness of its conclusion regarding causation.

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

AFFIRMED.

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

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


author: MOORE, Judge.

text:
    Jerry JAMES v. CITY OF RUSSELLVILLE.
    2080881.
    Court of Civil Appeals of Alabama.
    Jan. 8, 2010.
    Certiorari Denied Sept. 10, 2010 Alabama Supreme Court 1090524.

      Brandy Murphy Lee of Leitman, Siegal, Payne & Campbell, P.C., Birmingham, for appellant.
    William W. Sanderson and Taylor P. Brooks of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee.
   MOORE, Judge.

Jerry James appeals from a summary judgment entered in favor of the City of Russellville in a breach-of-contract and fraud action. We affirm.

On September 5, 2002, James filed a five-count complaint against the City of Russellville (“the City”) arising out of the City’s alleged refusal to allow him to locate manufactured homes in certain residential districts within the municipality based on the City’s interpretation of its then-existing zoning ordinance. On August 10, 2003, while the action was pending, the City adopted a new zoning ordinance specifically addressing manufactured homes. On July 22, 2004, James and the City entered into a “mediation agreement” regarding the pending action in which the City-agreed to, among other things, pave the streets in the Deer Run subdivision “in accordance with normal city standards and specifications no later than September 20, 2007.” On December 31, 2004, James executed a “General Release and Settlement Agreement” (“the settlement agreement”) in which he released all claims against the City in exchange for, among other things, the performance of the promises the City had made in the mediation agreement.

In August 2007, the City began paving the streets in the Deer Run subdivision. James demanded that the streets be paved at a width of 20 feet. The City maintained that the mediation agreement required only that it pave the streets at a width of 18 feet. James notified the City that he intended to pursue legal action if the City did not pave the streets as he demanded. At that point, the mayor of the City instructed that all paving work cease until the dispute could be resolved. James filed a breach-of-contract action against the City on December 10, 2007, which he amended on February 4, 2008, to allege that the City had defrauded him into entering the mediation agreement and the settlement agreement by stating that it would pave the streets in the Deer Run subdivision at a width of 20 feet.

On May 23, 2008, the City filed a motion for a summary judgment. On June 26, 2008, James filed a brief opposing that motion and requesting the right to conduct discovery to enable him to respond to the City’s evidentiary submissions. On September 4, 2008, the trial court entered a summary judgment for the City without allowing James to conduct discovery. On September 30, 2008, James filed a motion to alter, amend, or vacate the summary judgment. On December 23, 2008, the parties consented on the record to extend the time for the trial court to rule on that motion to February 6, 2009. See Rule 59.1, Ala. R.. Civ. P. (“No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record .... ”). Because the trial court did not rule on the motion on or before February 6, 2009, the postjudgment motion was deemed denied by operation of law. Id. (“A failure by the trial eourt to render an order disposing of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a.denial of such motion as of the date of the expiration - of the period.”). James timely appealed.

On appeal, James argues that the trial court erred in denying him the right to conduct discovery to obtain evidence' to oppose the City’s summary-judgment motion and in finding that the City was entitled to a summary judgment. We elect to address the issues in reverse order.

Our standard of review in cases in which a summary judgment has been entered is well settled:

“ ‘ “ ‘This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a pri-ma facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce “substantial evidence” as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12. “[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.” West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).’ ” ’
“Gooden v. City of Talladega, 966 So.2d 232, 235 (Ala.2007) (quoting Prince v. Poole, 935 So.2d 431, 442 (Ala.2006), quoting in turn Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004)).”

Ex parte Duncan, 1 So.3d 15, 19 (Ala. 2008).

In his fraud claim, James maintained that the City had induced him into executing the mediation agreement and the settlement agreement by stating that it would pave the streets in the Deer Run subdivision at a width of 20 feet. We note that such allegations amount to a claim of promissory fraud.

“ ‘ “The elements of fraud are (1) a false representation (2) of a material existing fact (3) reasonably relied upon by the plaintiff (4) who suffered damage as- a proximate consequence of the misrepresentation. To prevail on a promissory fraud claim ..., two additional elements must be satisfied: (5) proof that at the time of the misrepresentation, the defendant had the intention not to perform the act promised, and (6) proof that the defendant had an intent to deceive.” ’
“[Ex parte ] Michelin North America, 795 So.2d [674,] 678-79 [(Ala.2001)] (quoting Padgett [v. Hughes,] 535 So.2d [140,] 142 [ (Ala.1988) ]).”

Southland Bank v. A & A Drywall Supply Co., 21 So.3d 1196, 1210 (Ala.2008).

In his breach-of-contract claim, James alleged that the City had breached its promise contained in the mediation agreement to pave the streets in the Deer Run subdivision at a width of 20 feet by September 20, 2007.

“To prevail on a breach-of-contract claim, a plaintiff is required to prove ‘(1) the existence of a valid contract binding the parties in the action, (2) [the plaintiffs] own performance under that contract, (3) the defendant’s nonperformance, and (4) damages.’ Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala.1995).”

Baldwin v. Panetta, 4 So.3d 555, 561 (Ala.Civ.App.2008).

In this case, one common element of both claims raised by James requires proof that the City promised to pave the streets of the Deer Run subdivision at a width of 20 feet. In his brief to this court, James maintains in his statement of facts that he “submitted evidence that the City represented, agreed, and is obligated to pave the subdivision streets twenty (20) feet.” Reviewing the pages of the record to which James refers in his brief, we find the mediation agreement and the affidavit James filed in opposition to the motion for a summary judgment. James attested in his affidavit that “the City of Russellville has refused to pave the streets to 20 feet as represented and required by the mediation agreement attached hereto....” (Bold typeface in original.) The mediation agreement does not contain any express representation that the City would pave the streets in the subdivision at a width of 20 feet; it provides only that the City would pave the streets “in accordance with normal city standards and specifications no later than September 20, 2007.”

In its motion for a summary judgment, the City asserted that the “normal city standards and specifications” do not require 20-foot-wide paved streets in the subdivision. The City presented evidence indicating that the only zoning ordinance regulating the width of roads pertains to “Manufactured Home Districts” created by the 2003 zoning ordinance, which required 20-foot-wide roadways. The City presented further evidence indicating that the Deer Run subdivision does not lie within the “Manufactured Home Districts” created by the 2003 zoning ordinance. Thus, the City then turned to its “Subdivision Regulations,” which state that “the minimum roadway widths shall be according to the State Highway Department Specifications.” Those specifications, in turn, require that roadways with a speed limit of between 10 and 40 miles per hour must be at least 18-feet wide. The City showed that the applicable speed limit for the streets in the Deer Run subdivision is 25 miles per hour. Taken together, the evidence presented by the City proves that the City’s standards require only that the streets in the subdivision be paved at a width of at least 18 feet.

In response, James argued that the mediation agreement calls for 20-foot-wide paved streets in the Deer Run subdivision because that subdivision lies within a “Manufactured Home District” and has since September 19, 2000. On that date, an unsigned and unnotarized document entitled “Restrictions of Deer Run Subdivision” was recorded in the Probate Court of Franklin County. That document set out restrictions limiting the use of the subdivision to single-family dwellings constructed in accordance with standards established “either by the State Minimum Standard Codes ... or the National Manufactured Housing Construction and Safety Standards Acts for manufactured homes.” The document then set out certain requirements for installing manufactured homes in the subdivision. James maintained that the recording of the restrictive covenants on the use of the subdivision transformed the subdivision into a “Manufactured Home District.”

That argument is without merit. The 2003 zoning ordinance is the only City standard requiring 20-foot-wide roadways. That requirement applies only to “Manufactured Home Districts” created by the City pursuant to the 2003 zoning ordinance. The restrictive covenants recorded in 2000 existed before the 2003 zoning ordinance was enacted, and the covenants were not created by the City. Rather, they appear to be restrictive covenants created by the owners of the subdivision.

“Zoning ordinances regulate the use of land through the exercise of the police power in accordance with a comprehensive plan for the entire community. As an exercise of the state police power to promote the general welfare, zoning is entirely divorced in concept, creation, enforcement, and administration from restrictions arising out of agreements between private parties who, in the ex: ercise of their constitutional right of freedom of contract, can impose whatever lawful restrictions upon the use of their lands that they deem advantageous or desirable. Zoning restrictions and restrictions imposed by private covenants are independent controls upon the use of the land, the one imposed by the municipality for the public welfare, the other privately imposed for private benefit.
. “Both types of land restrictions are held by courts-to legally operate independently of one another.”

5 Edward R. Zieglar, Rathkopfs The Law of Zoning and Planning § 82:2 (2005). The parties who recorded the restrictive covenants may have intended that manufactured homes would be allowed in the Deer Run subdivision subject to the conditions contained in the covenants, but they did not thereby create a “Manufactured Home District” within the meaning of the City’s zoning ordinance.

James also argued that because the City maintains two different standards for determining the width of roadways, the phrase “normal city standards and specifications” constitutes a latent ambiguity that only a jury can resolve. However, whether a phrase in a contract is ambiguous is a question of law for the court. P & S Bus., Inc. v. South Cent. Bell Tel. Co., 466 So.2d 928, 931 (Ala.1985) (citing Haddox v. First Alabama Bank of Montgomery, 449 So.2d 1226, 1228 (Ala.1984), and Food Serv. Distribs., Inc. v. Barber, 429 So.2d 1025, 1028 (Ala.1983)). The two different standards to which James refers are (1) the standard applicable to “Manufactured Home Districts” requiring 20-foot roadways and (2) the standard applicable to all other districts in which roadway width depends on the operative speed limit. However, because only one standard applies to the Deer Run subdivision, the mere existence of another, unrelated standard does not inject uncertainty as to the meaning of the mediation agreement, which required the City to pave the streets in the subdivision “in accordance with normal city standards and specifications.” That phrase can mean only that the City would pave the streets in the subdivision in compliance with the standard ordinarily applicable to such streets.

James next contended that the “Franklin County Highway Department Subdivision Regulations” actually require the roads in the Deer Run subdivision to be paved at a width of 20 feet. In his brief in opposition to the City’s motion for a summary .judgment, James purported to quote a portion of those regulations in support of his contention and indicated that he had attached the quoted material to his affidavit as “Exhibit E.” However, the record before this court contains no such exhibit. The pages cited by James in his appellate brief do not contain the quoted material. It is not the duty of this court to search an appellate record for evidence to support an appellant’s contention of error. Jenkins v. Landmark Chevrolet, Inc., 575 So.2d 1157, 1161 (Ala.Civ.App.1991). Nevertheless, the court searched the entire record for the regulation upon which James relies but could not locate it. Because we did not find it, we must assume that, if it exists, the trial court properly considered it to be inapplicable to the Deer Run subdivision. See Kaufman v. Kaufman, 22 So.3d 458, 464 (Ala.Civ.App.2007) (“Further, when all the evidence before the trial court is not submitted to this court as part of the record on appeal, this court must presume that the evidence not before it was sufficient to support the trial court’s judgment.” (citing Berryhill v. Mutual of Omaha Ins. Co., 479 So.2d 1250, 1251 (Ala.1985), and Wilkens v. Kaufman, 615 So.2d 613, 615 (Ala.Civ.App.1992))).

Finally, James maintained that the parties had agreed in the mediation agreement that the City would amend its zoning laws to include the following provision:

“Specifically, this Ordinance shall not affect the rights of owners of lots in Deer Run Subdivision to combine or place any house, Manufactured Home or Modular Home in that subdivision under the approval granted by the Planning Commission of the City prior to their adoption of this Ordinance provided that said homes have a roof pitch of at least 9:12 nominal, are aesthetically compatible with other homes in Deer Run Subdivision and otherwise meet the definition of a Class A Manufactured Home or Modular Home.”

James contends that, when construing the mediation agreement as a whole, see Adcock v. Adams Homes, LLC, 906 So.2d 924, 932 (Ala.2005) (holding that all portions of contract referring to same subject matter should be construed together as a whole), the trial court should have concluded that the parties recognized the Deer Run subdivision to be a “Manufactured Home District” and that the 20-foot-road-width requirement should therefore apply. The above-quoted amendment merely endorses the City planning commission’s authority to approve the location in the subdivision of individual manufactured and modular homes deemed compatible with regular homes before the passage of the 2003 ordinance. That authority essentially amounts to the power to grant a variance. See Swann v. Board of Zoning Adjustment of Jefferson County, 459 So.2d 896 (Ala.Civ.App.1984). James does not explain how recognition of that authority evidences the intent of the parties to treat the entire Deer Run subdivision as a “Manufactured Home District” for road-paving purposes. This court cannot agree that the mediation agreement evidences any such intent on behalf of both parties.

Viewing the entirety of the evidence in a light most favorable to James, it appears that he was under the mistaken impression that the 2000 restrictive covenants and the amendment to the 2003 zoning ordinance had transformed the Deer Run subdivision into a “Manufactured Home District.” As James stated in his affidavit, based on his subjective belief, he saw “no need ... to bargain for twenty (20) foot streets.” As a result, he did not extract any express statement or agreement from the City that it would, in fact, pave the streets in the Deer Run subdivision at a width of 20 feet. As it turns out, the evidence proves, without dispute that the agreement to pave the streets in the subdivision “in accordance with normal city standards and specifications” also did not imply a 20-foob-width requirement. Hence, James has failed to present substantial evidence indicating that the City ever stated or agreed to pave the streets in the subdivision as he claims.

As for his discovery issue, James points out that, on February 7, 2008, only three days after he filed his amended complaint asserting a fraud claim against the City, the trial court stayed all discovery. As a result, as James puts it, he did not get to conduct any discovery “to properly oppose the City’s motion for summary judgment.”

Rule 56(f), Ala. R. Civ. P.; provides:

“Should it appear from the affidavits of a party opposing the motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party’s opposition, the court may deny the motion for summary judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery .to be had or may make such other order as is just.”

In this case, one of James’s attorneys filed an affidavit indicating that James needed to depose the witnesses who had filed affidavits in support of the City’s summary-judgment motion. Those witnesses included Bill Fuller, Tom Pace, Chris Hargett, and Mayor Johnny Brown. Fuller is the building inspector' for the City, and he testified that, in 2003, the City amended its zoning ordinances to recognize “Manufactured Home Districts” for the first time. Pace is the street superintendent for the City; he testified that the City’s subdivision regulations state that the minimum roadway widths must be in accordance with the “State Highway Department Specifications,” which require an 18-foot width for roads with speed limits of between 10 and 40 miles per hour. Hargett is the chief of police of the City, and he attested that the speed limit in the Deer Run subdivision is 25 miles per hour. Mayor Brown testified that, in 2007, James demanded that the City pave the roads in the subdivision at a width of 20 feet or he would seek his attorney’s assistance and that, based on that conversation, Mayor Brown ordered that all paving be ceased.

James’s attorney did not explain how deposing those witnesses could possibly lead to evidence contradicting their statements. With the exception of Mayor Brown’s affidavit, all the testimony relates to indisputable facts of public record. Mayor Brown’s affidavit merely explains why the City ceased paving the roads, in the subdivision, a fact that is not material to the issues raised in the summary-judgment motion. Without the requested discovery, James was able to marshal all the evidence upon which he relied to support his belief that the City had agreed to pave the roads at a width of 20 feet. James has not identified any potential evidence within the control of the City or its witnesses that would have helped him prove his case.

“ ‘Rule 56(f) protects a party opposing a motion for summary judgment if the party states reasons why he cannot present essential facts.’ Starks v. Commercial Union Ins. Co., 501 So.2d 1214, 1216 (Ala.1987). Proper application of Rule 56(f) requires the nonmoving party to demonstrate by affidavit, Herring v. Parkman, 631 So.2d 996, 1002 (Ala.1994), ‘that matters it seeks by further discovery are “crucial” to its case.’ Smith v. Yanmar Diesel Engine Co., 855 So.2d 1039, 1042 (Ala.2003) (citing Stallworth v. AmSouth Bank, 709 So.2d 458, 468 (Ala.1997)); see also McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156, 161 (Ala.1996) (nonmov-ant at summary-judgment stage has the ‘burden of proving how information from [documents sought in discovery] is crucial to her case’).”

Vick v. Sawyer, 936 So.2d 517, 521-22 (Ala.2006). Based on our review of the record, we conclude that the trial court did not exceed its discretion in granting the City’s summary-judgment motion without allowing James to conduct further discovery. See Griffin v. American Bank, 628 So.2d 540 (Ala.1993) (reviewing denial of Rule 56(f) motion based on abuse-of-discretion standard).

AFFIRMED.

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

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


author: BRYAN, Judge.

text:
    Chad LINGEFELT et al. v. INTERNATIONAL PAPER COMPANY et al.
    2081192.
    Court of Civil Appeals of Alabama.
    July 16, 2010.
    Certiorari Denied Sept. 24, 2010 Alabama Supreme Court 1091480.

      David M. Cowan, Ted L. Mann, and Robert Potter of Mann, Cowan & Potter, P.C., Birmingham, for appellants.
    Richard E. Broughton, Emily C. Marks, and Christopher Waller, Jr., of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellees.
   BRYAN, Judge.

Chad Lingefelt (“Lingefelt”), Terri K. Lingefelt, and Lance McGurk, the plaintiffs below, appeal from a summary judgment entered in favor of International Paper Company (“International Paper”), Gary Law, Lewis E. West, and Robert Osika, the defendants below, in this premises-liability action. We affirm.

Rimcor, Inc., an independent contractor, contracted with International Paper to dismantle equipment and to perform repair work in a paper mill owned by International Paper during a shutdown of that mill. Lingefelt and McGurk were Rimcor employees who were working on the shutdown of the paper mill. Lingefelt was injured in an accident that occurred near a lime kiln located in the paper mill, and McGurk was allegedly injured attempting to help Lingefelt after his accident.

A tall, circular, metal “hood” is situated at the front of the kiln. Rimcor employees planned to “pull back” the hood during the shutdown. Welded to the front of the hood and running parallel to the surface of the hood is a large, rectangular, metal duct situated at a 45-degree angle to the horizontal plane. The bottom part of the duct has a circular opening into which a circular burner is inserted. The burner supplies the heat to cook the lime in the kiln; it is inserted through the circular hole in the duct and then on through a circular hole in the hood. The burner has a circular flange, or collar, and the diameter of the burner flange is almost the same diameter as that of the hole in the duct. Consequently, there is-very little room between the burner flange and the duct as the burner is being' inserted or withdrawn from the duct. The burner is moved-by a chain-pull device, also referred to as a “come-a-long.”

On March 31, 2007, the Rimcor employees ' were dismantling the equipment around the kiln. The record indicates that the Rimcor employees were not under the control or direction of International Paper in performing that work. McGurk unbolted the top part of the duct from a “transition section,” which was connected to a sfructure above the duct. Lingefelt watched McGurk disconnect the top part of the duct. Later, Lingefelt was cutting angle iron while sitting on a platform under the lower part of the duct, which was still connected to the hood. While Linge-felt worked under the duct, Rimcor employee Mike Kirby, using the chain-pull device, began to pull the burner from the kiln through the holes in the hood and the duct. As the burner was being retracted from the duct, the burner flange contacted the inside of the duct near the hole. At that point, the duct came loose from the hood, and the duct fell on Lingefelt, severely injuring him. E.J. Pomeroy, one of the Rimcor employees who witnessed the accident, testified that Kirby put “a lot of pressure” on the burner as he retracted it with the chain-pull device. McGurk testified that he was injured after the duct fell when he fell off a ladder as he was attempting to help Lingefelt.

Lingefelt, Lingefelt’s wife Terri, and McGurk sued International Paper and three of its employees: Law, the maintenance manager of the paper mill; Osika, the safety manager of the paper mill; and West, an area process manager overseeing the kiln area. The complaint, as finally amended, alleged claims of negligence and wantonness. The complaint alleged that the defendants had failed to maintain a safe premises, had failed to warn of a dangerous condition on the premises, and had failed to repair a dangerous condition on the premises. The defendants moved for a summary judgment, arguing that the evidence indicates that they did not owe any duty to the plaintiffs, that they did not breach any duty owed to the plaintiffs, and that they did not proximately cause the accident. The defendants also filed motions seeking to strike Rimcor investigation reports concerning the accident and the opinions of the plaintiffs’ proffered expert, and the trial court granted those motions. The trial court subsequently granted the defendants’ summary-judgment motion. The plaintiffs timely appealed to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

“In reviewing the disposition of a motion for summary judgment, ‘we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 581 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Wright, 654 So.2d at 548 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

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

“‘In [a] premises-liability case, the elements of negligence “ ‘are the same as those in any tort litigation: duty, breach of duty, cause in fact, proximate or legal cause, and damages.’ ” ’ ” Sessions v. Nonnenmann, 842 So.2d 649, 651 (Ala.2002) (quoting Ex parte Harold L. Martin Distrib. Co., 769 So.2d 313, 314 (Ala.2000), quoting in turn other authorities). ‘Wantonness” has been defined as “the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result.” Alfa Mut. Ins. Co. v. Roush, 723 So.2d 1250, 1256 (Ala.1998). “Proximate cause is an essential element of both negligence claims and wantonness claims.... Proximate cause is an act or omission that in a natural and continuous sequence, unbroken by any new independent causes, produces the injury and without which the injury would not have occurred.” Martin v. Arnold, 643 So.2d 564, 567 (Ala.1994).

“Addressing the common-law duty owed a contractor, [the Supreme] Court has stated:

“1 “ ‘[The] invitor ... was under a duty to have the premises free from danger, or if they were dangerous, to give its invitee ... [the contractor] sufficient warning to enable him, through the exercise of reasonable care, to avoid the danger. This duty includes the duty to warn the invitee of danger of which the invitor knows or ought to know, and of which- the invitee does not know.’ ” ’”

Jones Food Co. v. Shipman, 981 So.2d 355, 361 (Ala.2006) (quoting Sessions, 842 So.2d at 651— 52, quoting in turn Breeden v. Hardy Corp., 562 So.2d 159, 160 (Ala.1990)) (emphasis omitted).

On appeal, the plaintiffs first argue that they presented substantial evidence supporting each element of their negligence and wantonness claims. We first address whether the record contains substantial evidence that any actions or omissions of the defendants proximately caused the accident injuring Lingefelt. Although McGurk was allegedly injured in a separate accident attempting to help Lingefelt after Lingefelt’s accident, the plaintiffs’ brief appears to treat Lingefelt’s accident as the source of McGurk’s alleged injuries. Terri Lingefelt’s claim is for loss of consortium. Therefore, all the claims in this case hinge on Lingefelt’s accident.

Shortly after the accident occurred, International Paper employees completed an incident-investigation report (“the investigation report”). The investigation report was primarily authored by West, the area process manager overseeing the kiln area. That report stated that, as the burner was being retracted through the hole in the duct, the burner flange contacted the duct. At that point, the investigation report found, the weld connecting the duct to the hood broke, and the duct shifted and-fell. The investigation report identified the “immediate and basic causes” of the accident as follows:

“1) The support connection between the bustle duct and the hood failed, allowing the duct to fall. When the duct is unbolted [from the transition piece] at the top, it becomes cantilevered[, ie., supported on only one end,] on a 45 degree angle from the ... hood, and there are no other supports or knee braces connecting or supporting this duct.
“2) The RIMCOR employee[, ie., Lingefelt,] was unknowingly working in the line of fire beneath the suspended load of the duct once the [transition piece] had been disconnected [from the duct]..
“3) As the burner was being pulled back, the flange on the burner interfered with the edge of the [hole] in the duct, in essence transferring the force of the [chain-pull device] from the burner trolley onto the duct. This added significant stress to the weld holding the bustle duct in position. [Lingefelt] was unaware that the support for the duct was under stress and the potential hazard this created.”

The investigation report also stated: “The weld between the duct and the hood was known to be damaged, but not known to be structural in nature. It had been separated for a number of years, with repairs made for the purpose of sealing the opening against air infiltration, not for repairing the support.” The plaintiffs focus on the reference in the investigation report to the “damaged” weld between the duct and the hood. The plaintiffs’ theory appears to be that there is substantial evidence indicating that the damaged weld referred to in the investigation report proximately caused the duct to fall on Lin-gefelt. The defendants, however, contend that the weld referred to in the investigation report was not a structural weld supporting the duct and had nothing to do with why the duct fell.

West, the primary author of the investigation report, explained in his affidavit the nature of the “damaged” weld that he referred to his investigation report:

“Although neither I, nor anyone else with [International Paper] to my knowledge, was aware of any problem or defect- with the structural weld or welds holding the bottom part of that bustle duct to the hood, I was aware of an operational problem in the area where the bottom part of the bustle duct was attached to the hood. In the winter of 2006, ... the mill was having problems maintaining the temperature inside the ... lime kiln coke system. I found an area where I could feel that cold air was leaking into the duct or the hood at that location....
“I could see a thin strip of flat bar metal[ ] that had buckled up, creating a gap between the edge of that flat bar metal and the hood. That piece of flat bar metal had been inserted in that area, much like a piece of weather stripping around a window or door in a home, to seal that area between the bustle duct and the hood against air infiltration. Because it was metal, it had been stitch-welded into that space or gap between the bustle duct and the hood. Those stitch welds held that piece of flat bar metal in place between the bustle duct and the hood. In other words, in several locations, there were stitch welds attaching one side of that piece of flat bar metal to the edge of the bustle duct, and the other side to the hood. Those stitch welds were there to keep that thin piece of flat bar metal in place to seal that gap. Those stitch welds were not there to structurally hold the bustle duct to the hood....
“The operational problem I found with the leak at the piece of flat bar was just that, an operational problem with the coke system. It appeared to me, although I did not measure it, that there was about a 12 [inch] long gap about an inch wide between the edge of the flat bar and the hood, allowing air to leak into the duct and kiln at that area where the flat bar had buckled up. It was my impression that one of the stitch welds holding that piece of flat bar to the hood[ ] had been damaged, or had come loose, allowing that piece of flat bar to buckle up and allow that gap. We corrected that operating condition by packing some industrial insulation in that area to prevent air from leaking into the kiln. There was no concern at that time that this operational problem presented any structural issue or safety issue for that bustle duct.”

In his deposition testimony, West further clarified that the damaged weld referred to in the investigation report was the “stitch” weld holding the piece of flat bar in place between the hood and the duct. For the sake of clarity, we will refer to this weld hereinafter as the “stitch weld.”

Thomas Shelton, a metallurgical engineer, the defendants’ expert witness, testified by deposition that the flat bar with the stitch weld is not a “structural component of the system.” He further testified that the flat bar was not intended to support the duct but was there “to seal the gap [between the duct and the hood] so that you don’t have air leakage.” Shelton stated that the 12-inch gap in the flat bar was “an operational issue” regarding air intrusion into the system but was not a crucial issue from a “failure analysis point of view.”

Shelton testified that the duct was actually connected to the hood by at least one “fillet weld,” a weld distinct from the stitch weld holding the flat bar in place. Shelton stated that, in addition to the fillet weld holding the duct to the hood, “the other structural component was up at the top end [of the duct] where the duct plus the ducting piping attaches to the wall. Those were the components holding it in place. If either one of those is not in place, then you’ve got a problem.” As noted, a Rim-cor employee unbolted the top part of the duct from the transition piece before the accident occurred, thereby removing, according to Shelton, one of the structural components holding the duct in place. Shelton testified that the connection between the duct and the hood before the accident had been “structurally sound.”

Shelton opined that the fillet weld broke during the accident and that the duct would not have fallen had the burner not been retracted. He further opined that the welds failed because the burner contacted the duct as the burner was being retracted, causing horizontal loading on the duct, and the welds were consequently unable “to bear the entire load with one end[, ie., the top end,] free from the support.” In his affidavit, Shelton testified that the fillet weld did not fail as a result of corrosion, oxidation, or fatigue.

Shelton testified by deposition that the flat bar with the stitch weld provided “some minor support” to the fillet weld holding the duct to the hood, although that was not what the flat bar was intended to do. Shelton testified: “The flat bar ... is [there] just totally to block the air from coming through. It may provide some minor [support] assistance, but it’s so minor that it’s not there.” Shelton testified that the 12-inch gap in the flat bar did not create a hazard to the stability of the duct when the top part of the duct was unbolted. He further stated that, if he had been told about the 12-inch gap in the flat bar before the accident, he would have advised International Paper to place insulation into the gap and to continue working, which is what International Paper employees in fact did.

The plaintiffs’ theory of liability seems to be based on the premise that the damaged stitch weld holding the flat bar in place was structural in nature,' that the stitch weld made the connection between the duct and the hood structurally unsound, and that this condition proximately caused the accident. However, the record does not contain substantial evidence suggesting that the stitch weld proximately caused the duct to fall. The expert testimony in the record establishes that the stitch weld was not intended to be structural in nature and that any incidental support supplied by the stitch weld was so minor that “it’s not there.” The admissible evidence suggests that the duct fell because its top-side support was detached by a Rimcor employee and another Rimcor employee applied an unsupportable horizontal load to the duet by contacting the duct with the burner flange as the burner was being retracted from the duct. There was no evidence before the trial court indicating that the fillet weld providing structural support for the duct was defective. “[N]o presumption of negligence arises from the mere fact of an injury....” Jones Food Co., 981 So.2d at 361. “ ‘ “[E]vidence supporting nothing more than speculation, conjecture, or a guess does not rise to the level of substantial evidence.” ’ ” State Farm Fire & Cas. Co. v. Shady Grove Baptist Church, 838 So.2d 1039, 1041 (Ala.2002) (quoting McGinnis v. Jim Walter Homes, Inc., 800 So.2d 140, 145 (Ala.2001), quoting in turn Brushwitz v. Ezell, 757 So.2d 423, 432 (Ala.2000)). Because the plaintiffs did not submit substantial evidence supporting the causation element of their negligence and wantonness -claims, the trial court did not err in entering a summary judgment on those claims in favor of the defendants.

Next, the plaintiffs argue that the trial court erred in granting the defendants’ motion to strike the opinion testimony of John Holecek, whom the plaintiffs proffered as an expert witness. In their motion to strike, the defendants argued that Holecek’s opinion testimony was inadmissible because, they said, Holecek’s opinions were outside his area of expertise and were based on an insufficient factual basis. The trial court did not specify a reason for granting the defendants’ motion to strike.

“The standard of review applicable to whether an expert should be permitted to testify is well settled. The matter is ‘largely discretionary with the trial court, and that court’s judgment will not be disturbed absent an abuse of discretion.’ Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839, 850 (Ala.2002). We now refer to that standard as a trial court’s ‘exceeding its discretion.’ However, the standard itself has not changed.”

Kyser v. Harrison, 908 So.2d 914, 918 (Ala.2005). “A trial court has great discretion in determining the admissibility of evidence....” Grayson v. Dungan, 628 So.2d 445, 447 (Ala.1993). Rule 702, Ala. R. Evid., provides:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

The plaintiffs argue that Holecek is qualified to testify as an expert. The plaintiffs note several factors that they say qualify Holecek as an expert, including the following: Holecek has a bachelor’s degree and a master’s degree in mechanical engineering; he is a licensed professional engineer; he took classes in mechanical design and metallurgy; his previous work for an engineering company included the design, manufacture, and installation of duct work for industrial furnaces and ovens and he dealt extensively with welding in that work; and his experience with the engineering company concerned field welding that he concluded was similar to the welding in this case.

In his deposition testimony, Holecek testified that he had been retained to provide his opinion regarding the cause of the accident. Accordingly, Holecek would necessarily testify as to what caused the relevant weld or welds to fail. However, Holecek testified that he had never been involved in any cases involving welds breaking loose from a stationary piece of equipment. Holecek was asked by counsel for the defendants whether, in his entire career, he had ever been involved in any matters concerning the “inspection of structural welds that join two pieces of equipment together ... at a manufacturing plant like [International Paper’s] plant.” Holecek answered that “the present case is the first case I’ve dealt with that involved a weld in any capacity.” Ho-lecek also stated that he had never provided expert testimony in a case involving the ducts associated with a lime kiln.

Our supreme court has stated that “ ‘an expert may not testify to his opinion on matters outside of his field of training and experience.’ ” Kyser, 908 So.2d at 919-20 (affirming a trial court’s exclusion of proffered expert testimony by a physician when the physician had training in forensic pathology but not pediatric forensic pathology) (quoting Central Aviation Co. v. Perkinson, 269 Ala. 197, 208, 112 So.2d 326, 831 (1959)). See also Furin v. City of Huntsville, 3 So.3d 256, 261-62 (Ala.Civ.App.2008) (affirming a trial court’s disqualification of an engineer’s testimony when the engineer had training and experience in civil engineering and aerospace engineering but not in matters pertaining to floods or their causes). In this case, there is evidence from which the trial court could have concluded that Holecek was not qualified as an expert to testify regarding the issue of the failure of the weld or welds between the duct and the hood. Accordingly, the trial court did not exceed its considerable discretion in disallowing Ho-lecek’s testimony.

Moreover, Holecek’s opinion testimony regarding what caused the weld or welds to fail is based on speculation and conjecture. “A[n expert] witness’s testimony cannot be based on mere speculation and conjecture.” Townsend v. General Motors Corp., 642 So.2d 411, 423 (Ala.1994). As we have noted, “no presumption of negligence arises from the mere fact of an injury....” Jones Food Co., 981 So.2d at 361.

“[A] witness, even one qualified as an expert, must have a factual basis for an opinion. Although any challenge to the adequacy of the factual basis for an expert’s opinion normally goes to the weight rather than to the admissibility of the evidence, if the facts relied on by the witness clearly are insufficient to support an opinion, then the challenge may go even to the admissibility of the opinion. Morris v. Young, 585 So.2d 1374 (Ala.1991); Alabama Power Co. v. Robinson, 447 So.2d 148 (Ala.1983); see, also, J. Colquitt, Alabama Law of Evidence, § 7.3 (1990).”

Ammons v. Massey-Ferguson, Inc., 663 So.2d 961, 964-65 (Ala.1995) (Houston, J., concurring specially).

In his deposition, Holecek testified:

“Q. [By counsel for the defendants:] Have you done anything in this case to enable you to offer an opinion as to whether or not a structural weld in this case failed because of stress as opposed to fatigue and corrosion?
“A. No, I’ve not tried to determine the manner of failure of this particular weld.”

Holecek then testified that “the weld” between the duct and the hood was “insufficient.” When asked by counsel for the defendants how the weld was insufficient, Holecek stated:

“Simply from the fact that had it been welded up, for example, in accordance with the original drawings that showed the manner in which it should have been welded, it is my opinion it would not have fallen. So therefore the fact that it did fall would indicate it was insufficiently welded.”

Holecek stated that the “original drawings” for the attachment of the duct to the hood called for the duct to be attached to the hood with a “three-eighths filet weld” but that he did not know how those two pieces of equipment were actually attached during installation. Holecek testified that he did not know the condition of the structural weld holding the duct to the hood before the accident but, he stated, “the mere fact that it failed is ... an adequate basis for [a determination of] the insufficiency of that connection....” Holecek also testified:

“Q. [By counsel for the defendants:] Do you have any scientific evidence where you can establish that that duct would have fallen at the time of this accident even without the force put on it by the come-a[-]long or the chain pull [device]?
“A. No, I don’t know that.”

Based on the foregoing, the trial court was justified in determining that, even if Holecek was qualified as an expert, his testimony regarding the essential issue of the cause of the accident was based on conjecture and speculation. Accordingly, for this additional reason, the trial court did not exceed its discretion in striking Holecek’s opinion testimony.

Next, the plaintiffs argue that the trial court erred in granting the defendants’ motion to strike Rimcor accident reports concerning Lingefelt’s accident. The reports were completed by Robert Caraway, a Rimcor safety manager. Caraway did not witness the accident; he completed the reports after viewing the accident site and interviewing Lingefelt, witnesses to the accident, and International Paper personnel. In pertinent part, the reports stated:

“Conditions and/or actions that may have led to accident:
“Close inspection by [International Paper] personnel determined that the weld holding the duct to the kiln hood was deteriorated due to age and corrosion. Work had been done on the duct in the past year and further repairs were planned
“It was determined no activity by [Lingefelt] or Rimcor was the cause of the failure.”

(Bold typeface omitted.)

The defendants’ motion to strike the reports argued, in part, that the reports contained

“hearsay, hearsay within hearsay, speculation and conjecture, and conclusions and opinions as to how the accident occurred, information not based on personal knowledge, and specific corrective actions, all of which are inadmissible pursuant to one or more of Rules 407, 602, 701, 702, and 802, Ala. R. Evid. Any probative value is outweighed by unfair prejudice to the Defendants. Rule 403, Ala. R. Evid. Any admissible information contained in these reports can be provided and explained by live witnesses and/or deposition testimony.”

The trial court granted the motion to strike the reports without specifying a reason.

The plaintiffs seem to implicitly recognize that, unless an exemption or exception applies, the pertinent parts of the reports are hearsay. The plaintiffs first argue that the reports are admissible as a party admission:

“What the Defendants failed to acknowledge in their argument [in their motion to strike] is that the ‘hearsay’ information that was included in Rimcor’s accident reports came directly from [International Paper’s] mill safety manager, Robert Osika[, who is one of the defendants]. Thus, the information that Mr. Caraway obtained from Robert Osika and included within Rimcor’s accident reports would qualify as a party admission under Ala. R. Evid.[, Rule] 801(d)(2).”

Plaintiffs’ brief at 49. Rule 801(d)(2), Ala. R. Evid., provides, in pertinent part, that “[a] statement is not hearsay if ... [t]he statement is offered against a party and is ... the party’s own statement in either an individual or a representative capacity or ... a statement of which the party has manifested an adoption or belief in its truth....”

The record does not indicate that the plaintiffs argued to the trial court that the Rimeor reports are admissible under Rule 801(d)(2). This court does not consider arguments advanced for the purpose of reversing a trial court’s judgment when those arguments were never presented to the trial court. State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.2005). Moreover, the reports do not qualify as nonhearsay as an admission by Osika. The reports themselves do not attribute any of the pertinent information to Osika. In his deposition testimony, Caraway, the author of the reports, testified that the pertinent information in the reports were Caraway’s own conclusions that he had drawn from his own observations and from his conversations with others, including Osika. Therefore, we cannot say that the pertinent parts of the reports should be considered Osika’s admissions under Rule 801(d)(2).

The plaintiffs also argue that the reports are admissible as a business-record exception to the hearsay rule, pursuant to Rule 808(6), Ala. R. Evid. Rule 803 provides, in pertinent part:

“The following are not excluded by the hearsay rule, even though the de-clarant is available as a witness:
“(6) ... A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term ‘business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”

The Advisory Committee’s Notes to Rule 803(6) provide, in pertinent part:

“It should be emphasized that satisfying the present hearsay exception does not give the evidence carte blanche admissibility over other independent objections, such as those relating to opinion, irrelevancy, best evidence, etc.... These other evidentiary rules of exclusion would have to be satisfied also.... Rule 803(6), by use of the words ‘opinions’ and ‘diagnoses,’ merely stands for the proposition that these things are admissible through records if they are otherwise qualified under the opinion rule, as would be the case if the statement had been made by an expert as recognized by Ala. R. Evid. 702, or is ‘helpful,’ as now provided by Ala. R. Evid. 701.”

Similarly, our supreme court, in discussing the applicable statute that preceded Rüle 803(6), Tit. 7, § 415, Ala.Code 1940, has stated:

“ ‘Opinions circumventing the opinion .rule are no more admissible in a memorandum in evidence than they would be in oral testimony.’ A party to a suit cannot make an office memorandum containing conclusions, opinions, hearsay and irrelevant statements, which are illegal evidence, and cause it thereby to be admissible against an opponent when it may have a prejudicial effect on him.”

Stremming Veneer Co. v. Jacksonville Blow Pipe Co., 263 Ala. 491, 495, 83 So.2d 224, 227 (1955) (citations omitted). See also Greathouse v. Credit Bureau, Inc., 279 Ala. 524, 526, 187 So.2d 565, 566 (1966) (quoting Stremming Veneer).

In this casé, Caraway, the author of the reports, testified that the pertinent information in the reports were his own conclusions that he had drawn from both his own observations and from his conversations with others. Therefore, the pertinent parts of the reports essentially constituted Caraway’s opinion testimony. The pertinent parts of the reports addressed the allegedly deteriorated physical condition of the weld holding the duct to the hood while concluding that Rimcor employees did nothing to cause the accident. As Shelton’s deposition testimony suggests, testimony regarding the functioning of the equipment and the possible causes of the accident requires the type of “specialized knowledge” contemplated by Rule 702, Ala. R. Evid., which permits testimony by qualified experts. However, the plaintiffs do not cite any evidence that Caraway is qualified as an expert witness. The trial court did not exceed its discretion in granting the motion to strike the reports.

Further, assuming that Caraway’s conclusions did not concern matters reserved for an expert, Caraway’s conclusions that the Rimcor employees did not cause the accident are not admissible under Rule 701, Ala. R. Evid., which concerns opinion testimony of lay witnesses. The Advisory Committee’s Notes for Rule 701 state that opinions should be excluded if they “ ‘amount to little more than choosing up sides.’ Fed.R.Evid. 701 advisory committee’s note. Assertions that one is ‘liable,’ ‘guilty,’ or ‘at fault’ generally would not be helpful and thus would properly be excluded.”

Based on the foregoing, the summary judgment of the trial court is affirmed.

AFFIRMED.

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

THOMPSON, P.J., concurs in the result, without writing.

      . The duct is sometimes referred to as the “bustle duct" in the briefs and in the record on appeal.