author: PITTMAN, Judge.

text:
    CONSOLIDATED PIPE & SUPPLY CO. v. CITY OF BESSEMER et al.
    2090095 and 2090096.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2010.
    Rehearing Applications Denied March 11, 2011.

      Rachel J. Moore, J. Todd Miner, and Nathan C. Weinert of Najjar Denaburg, P.C., Birmingham, for appellant.
    Denise Blue Poe of Waldrep Stewart & Kendrick LLC, Bessemer, for appellee the City of Bessemer.
    D. Keith Andress and Donald Nettles of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham, for appellee T.E. Stevens Company, Inc.
   PITTMAN, Judge.

Consolidated Pipe & Supply Company (“Consolidated”) appeals from a judgment of the Jefferson Circuit Court, Bessemer Division, determining that its claims against the City of Bessemer (“the City”), T.E. Stevens Company, Inc. (“the contractor”), and Christopher Development and Construction, LLC (“the subcontractor”), were barred by the operation of state competitive-bid laws. We affirm as to the claims against the City, but we reverse as to the claims against the contractor and the subcontractor.

The record in this case reveals that the contractor and Visionland Outlet Center, LLC (“the developer”), contracted for the construction of a shopping center on land near the Visionland amusement park. The City and the developer subsequently agreed that the developer would complete the improvements envisioned as a shopping mall and that invoices for costs of engineering and construction would be forwarded to the City for payment, although the City’s expenditure would be capped at $1 million and would be treated as an advancement of funds derived from future sales-tax revenues (and the City subsequently adopted a municipal resolution memorializing that arrangement). The contractor hired the subcontractor in September 2000, and the subcontractor in turn contacted Consolidated in order to seek materials for the water and sewer lines that the subcontractor would be primarily responsible for laying. The contractor issued Purchase Order Number 9907; that purchase order listed Consolidated as the vendor and directed shipment of materials to the City “c/o" (i.e., in care of) the subcontractor. Consolidated was paid $44,029.58 by the City in October 2000; however, after the City had expended all the funds within the $1 million limit speci-fled in its resolution, Consolidated unsuccessfully sought payment from the City, the contractor, and the subcontractor for other supplies that Consolidated had provided with respect to the construction project.

In September 2001, Consolidated brought a civil action (case no. CV-01-1171) in the trial court naming the City as a defendant and seeking $44,558.93 plus attorney fees, interest, and costs; in October 2001, Consolidated amended its complaint to add the contractor and the subcontractor as additional defendants. The City moved to dismiss the claims against it under Rule 12(b)(6), Ala. R. Civ. P., alleging a failure to state a claim upon which relief could be granted; that motion was denied on November 4, 2001, and the City was given 30 days to answer the complaint. However, the City did not file and serve an answer in the action in response to the trial court’s order.

After the parties had engaged in discovery, the case was reassigned in April 2003 to a different circuit judge, who set the case for a trial in July 2003; however, because of withdrawals of counsel, that trial did not occur. Rather, the City filed a motion for a summary judgment in August 2003 in which it alleged that no contract was in existence between it and Consolidated. Although Consolidated filed a response in opposition, the trial court granted the City’s summary-judgment motion. The case remained pending as to the other defendants, however, and the case was consolidated “for discovery and trial” with a second civil action (case no. CV-03-1293) in which the contractor had sued the subcontractor and its principal. Consolidated also filed a motion requesting that the trial court revisit its summary-judgment order as to the City.

After a series of continuances, the judge to whom the case had been reassigned recused himself in April 2008 at the behest of the contractor, who noted that that judge had become a client of Consolidated’s attorney in a separate matter. The case was then reassigned to the judge who had originally been assigned the case. In October 2008, after mediation had proved unsuccessful, a number of motions were filed, including a “renewed” summary-judgment motion on the part of the contractor (although no previous summary-judgment motion from that defendant appears in the record) and Consolidated’s motion to vacate the summary-judgment order that had been entered in favor of the City. The contractor’s summary-judgment motion was denied, but Consolidated’s motion to vacate was granted and the claims against the City were again placed at issue. The City, in turn, moved to vacate the order reinstating the claims against it, but its motion was denied.

On April 6, 2009, when the case was again scheduled to be tried, the City made an oral motion to dismiss the claims against it on the asserted basis that the purported contract between the City and Consolidated was void under Alabama statutes requiring competitive bidding as to public works and as to expenditures of more than $15,000 for construction supplies. Consolidated filed a motion to strike that defense and requested leave to amend its complaint, and the City filed a written motion restating its request for a dismissal. On April 23, 2009, the City filed an answer — its first responsive pleading in the case — asserting the applicability of competitive-bid laws as an affirmative defense. After considering the City’s arguments, the trial court granted the City’s oral motion to dismiss; it ultimately denied the written motion to dismiss “as moot.” Consolidated filed a motion in May 2009 requesting that the trial court alter, amend, or vacate its decision (which was at that time, like the 2008 decision, a nonfinal order).

At a trial setting on May 4, 2009, the contractor and the subcontractor asserted that the claims Consolidated had stated against them should also be dismissed, positing that the trial court, in dismissing the City as a defendant, had determined that the contract from which Consolidated’s claims stemmed was void. After taking limited testimony from a representative of Consolidated, the trial court agreed with the remaining defendants and ruled on August 5, 2009, that the claims against the contractor and the subcontractor were also due to be dismissed. Because all claims as to all parties in case no. CV-01-1171 had been adjudicated, Consolidated’s May 2009 motion challenging the ruling as to its claims against the City ripened into a postjudgment motion, and was deemed filed, as of that date. See New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 72 (Ala.2004) (holding that any “post-judgment” motion filed before the entry of a final judgment quickens upon the subsequent entry of a final judgment). The postjudgment motion was denied on September 24, 2009, and Consolidated filed notices of appeal in both case no. CV-01-1171 and case no. CV-03-1293. The two appeals were transferred to this court by the Alabama Supreme Court, were assigned numbers 2090095 and 2090096, and were consolidated by this court. However, we note that no judgment has yet been entered by the trial court as to the contractor’s claims in case no. CV-03-1293; thus, we dismiss the appeal in case no. 2090096.

Consolidated asserts six issues in its appellate brief, raising questions of procedural, substantive, and constitutional law. The issues may be summarized as:

I. Whether the judgment in favor of the City was procedurally proper notwithstanding the City’s delay in asserting the applicability of state competitive-bid laws.

II. Whether the judgment in favor of the contractor and the subcontractor was procedurally proper notwithstanding those defendants’ delay in moving to dismiss based upon illegality of the alleged contract.

III. Whether the judgment is substantively defensible based upon the absence of a contract between Consolidated and any or all of the defendants.

IV. Whether the alleged contract between Consolidated and the City is void because of the application of competitive-bid laws.

V. Whether, if the alleged contract between Consolidated and the City is void because of the application of competitive-bid laws and precedents thereunder, the judgment should nonetheless be reversed on the basis that Consolidated’s property was taken without due process of law.

VI. Whether, if the alleged contract between Consolidated and the City is void, that voidness may be relied upon by the contractor and the subcontractor as a defense to Consolidated’s claims against them.

Of the defendants, only the City and the contractor have filed appellate briefs; the subcontractor has not favored this court with a brief and did not appear at oral argument. The City has responded in its brief to the issues that directly concern its interests by asserting that the trial court properly allowed the competitive-bid defense, that there existed no contract between it and Consolidated, that any such contract would (as the trial court determined) have violated competitive-bid laws, and that no due-process violation occurred. The contractor responded in its brief to the issues that concern its interests by positing that a summary judgment was properly entered in its favor in response to its dispositive pretrial motion, that no contract between it and Consolidated existed, that any such contract would violate one of the two competitive-bid statutes cited by the parties, and that the voidness of the contract on that basis warrants affirmance.

Although the orders composing the judgment under review are products of the defendants’ pretrial motions to dismiss for failure to state a claim upon which relief could be granted (which are allowed under the final clause of Rule 12(h)(2), Ala. R. Civ. P.), each involved consideration of materials outside the pleadings. Thus, the proper standard of review is that applicable to a summary judgment. See Hoffman v. Truck Driving Acad., Inc., 777 So.2d 151, 153 (Ala.Civ.App.2000) (reaching similar procedural conclusion), abrogated on other grounds by Ex parte First Alabama Bank, 883 So.2d 1236 (Ala.2003); cf. Sims v. Lewis, 374 So.2d 298, 301 (Ala.1979) (noting that a party’s failure to state a claim upon which relief can be granted can be raised by motion after the pleadings are closed; mode of review depends on whether materials extraneous to the complaint are considered).

“ ‘[An appellate court] reviews a summary judgment de novo. We seek to determine whether the movant has made a prima facie showing that there exists no genuine issue of material fact and has demonstrated that the movant is entitled to a judgment as a matter of law. In reviewing a summary judgment, [an appellate court] review[s] the evidence in the light most favorable to the nonmovant. Once the movant makes a prima facie showing that he is entitled to a summary judgment, the burden shifts to the nonmovant to produce “substantial evidence” creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ ”

Sartin v. Madden, 955 So.2d 1024, 1026-27 (Ala.Civ.App.2006) (citations omitted; quoting Muller v. Seeds, 919 So.2d 1174, 1176-77 (Ala.2005)).

We first address the procedural arguments raised by Consolidated. Each of those arguments challenge the fundamental fairness of the judgment in light of the facts that (a) the case had been pending for almost eight years when the applicability of the competitive-bid laws was first asserted by the City and (b) no motion to dismiss, summary-judgment motion, or pleading on the City’s behalf had raised that defense when it was first advanced at an April 2009 trial setting. Under Rule 8(c), Ala. R. Civ. P., an affirmative defense that is not stated in a defending party’s first responsive pleading is deemed waived. However, in this case, although the City did not file an answer until April 23, 2009, the competitive-bid defense was included in that answer. Although the City’s delay in filing an answer is not commendable, a trial court has the discretion to allow the filing of a tardy answer in the same manner that that court would have discretion to allow a tardy amendment to a previous answer that asserts a new defense that does not deprive the claimant of the opportunity to present facts or evidence that would otherwise have been offered. See Ex parte Liberty Nat’l Life Ins. Co., 858 So.2d 950, 954 (Ala.2003); Hair v. Moody, 9 Ala. 399, 400 (1846) (“the allowance of pleadings out of time[] is a matter of discretion with the court, the exercise of which is not a subject of revision”). The City’s dispositive motion relying on the competitive-bid issue thus conformed to its answer. Similarly, because the ground for dismissal asserted by the contractor and the subcontractor on May 6, 2009, stemmed from the trial court’s April 2009 ruling in favor of the City, those defendants may not properly be viewed as having acted in a dilatory manner in seeking a judgment in their favor based upon that ruling at that time. We thus reject Consolidated’s position that the trial court’s judgment is procedurally defective, and we proceed to consider the arguments regarding the substantive correctness of the judgment.

Because an appellate court may properly affirm a summary judgment on any ground apparent of record “unless due-process constraints require otherwise,” see Wheeler v. George, 39 So.3d 1061, 1083 (Ala.2009), Consolidated, the City, and the contractor prudently address the issue of the existence of a contract on the basis that the absence of substantial evidence tending to show the existence of such a contract could potentially support all or part of the judgment under review as a separate and independent ground.

The pertinent facts may be briefly summarized. In July 2000, the principal of Consolidated summoned Consolidated’s credit manager into a meeting with the subcontractor’s principal and informed the manager that the subcontractor and the contractor had reached an agreement under which the subcontractor would install pipe for the shopping center; at that time, the subcontractor’s principal informed Consolidated’s manager that Consolidated would receive a purchase order from the contractor for piping material, that the material was to be sold on a tax-exempt basis, that the material was to be shipped to the City in “care of’ the subcontractor (and at the subcontractor’s address), and that the subcontractor would thereafter submit invoices to the contractor for forwarding to the City (who would, it was apparently envisioned, pay Consolidated “[f]or tax purposes”).

The contractor’s purchase order that was eventually forwarded to Consolidated bore the legend that the material was to be “[sjhipped to” the subcontractor at its address, prompting the manager to telephone both the contractor and an employee of the City to seek and obtain assurances that the material was to be shipped to the subcontractor but that the City was to be billed. Although Consolidated’s invoice for three shipments of pipe that were sent by Consolidated to the subcontractor was paid by the City after that invoice had been sent to the subcontractor for handling, Consolidated’s invoices for subsequent shipments were not paid by any of the defendants, although the subcontractor insisted that it had forwarded those invoices to the contractor for handling (which the contractor denies). Thus, the essential events in this case that arguably support Consolidated’s position regarding the existence of a contract may be summarized as being (a) representations by the subcontractor concerning the City’s alleged ultimate agreement to pay for supplies to be provided to that subcontractor; (b) the issuance of the contractor’s purchase order identifying the City as the client and identifying the subcontractor as the party to whom deliveries should be made; and (c) the subcontractor’s and the contractor’s having forwarded at least one invoice to the City for ultimate payment.

In turning first to the judgment in favor of the City, we note the potential for reasonable doubt as to whether any of the defendants, public or private, actually made an effective agreement to pay Consolidated in exchange for pipe shipments; notably, there is no evidence indicating that the City gave the contractor or the subcontractor any actual authority to bind it to pay Consolidated. However, in light of the prevailing standard of review as to summary judgment in general, to which we have already directed the reader’s attention herein, we will assume, for the sake of argument, that either the telephonic confirmatory statements of the City’s employee or the presence in the record of a letter from the contractor’s project manager indicating that the City had dictated changes in the project on or before February 6, 2001, permits an inference that the City could be considered a contracting party as to Consolidated.

Having made the assumption that a contract was formed between Consolidated and the City, we observe that the competitive-bid issue comes to the forefront. One of the two arguably pertinent statutes cited by the City is Ala.Code 1975, § 41-16-50. Under that statute,

“all expenditure of funds of whatever nature for ... the purchase of materials, equipment, supplies, or other personal property involving fifteen thousand dollars ($15,000) or more ... made by or on behalf of ... the governing bodies of the municipalities of the state ... shall be made under contractual agreement entered into by free and open competitive bidding, on sealed bids, to the lowest responsible bidder.”

Thus, § 41-16-50 reaches any expenditure by the City of more than $15,000 for materials, equipment, or supplies. Further, “[cjontracts entered into in violation of [the] article [of the Code in which § 41-16-50 is included] shall be void.” Ala.Code 1975, § 41-16-51(d). Estoppel, moreover, is not a valid defense to the application of competitive-bid laws such as § 41-16-50. Ex parte Ballew, 771 So.2d 1040, 1042-43 (Ala.2000); see also Town of Coffee Springs v. Glover, 10 Ala.App. 475, 478, 65 So. 440, 441 (1914) (“A contract which is outside the pale of the corporate authority confers no right, and neither the making of the ultra vires contract nor the receiving of benefits under it estops the corporation from setting up its invalidity.”).

The plain language of this statute completely undermines Consolidated’s position as to the City’s liability on the contract theory upon which Consolidated has relied in this case. Assuming, as we have, that a contract existed between Consolidated and the City under which Consolidated was to provide piping components, those items would amount to “materials” and “supplies” within the scope of § 41-16-50; further, it is undisputed that the contract claimed to exist by Consolidated involved moneys greater than $15,000 but was not competitively bid so as to render it legally valid under § 41-16-50 and 41-16-51. Although use by covered entities of competitive-bid laws as a means to escape otherwise subsisting liability is not commendable, we are bound to follow the expressed will of legislature in the competitive-bid laws for the benefit of the public at large. See Board of Sch. Comm’rs of Mobile County v. Coastal Builders, Inc., 945 So.2d 1059, 1062 (Ala.Civ.App.2005) (plurality opinion).

Consolidated also raises the question whether the application of § 41-16-50 violates due-process principles. That argument was first advanced in Consolidated’s postjudgment motion to alter, amend, or vacate and is untimely. See United Servs. Auto. Ass’n v. Wade, 544 So.2d 906, 917 (Ala.1989) (“constitutional issues may not be raised for the first time in a post-judgment motion”). Even were it properly preserved, however, the due-process argument raised by Consolidated assumes that Consolidated has a protecta-ble property interest in payment from the City for its pipe supplies. Just as all persons are charged as a matter of public policy with a knowledge of the law pertaining to their transactions, see Barber Pure Milk Co. of Montgomery v. Alabama State Milk Control Bd., 275 Ala. 489, 494, 156 So.2d 351, 355 (1963), anyone who performs work or delivers supplies to or on behalf of a municipality may properly be charged with knowledge of applicable competitive-bid statutes such as § 41-16-50. See CommuniCare, Inc. v. Wood County Bd. of Comm’rs, 161 Ohio App.3d 84, 93-94, 829 N.E.2d 706, 713-14 (2005) (those who deal with entities covered by competitive-bid laws are charged with knowledge of entities’ limitations in executing contracts; contractor must ascertain whether its contract complies with state statutes so far as they are applicable, and a contractor who fails to do so performs the contract at its peril). Because any contract between the City and Consolidated in the nature of the contract claimed to exist in this case falls within the limiting scope of § 41-16-50, Consolidated’s “deprivation-of-property” argument based upon constitutional due-process principles against the judgment entered in favor of the City must fail, and we affirm that aspect of the trial court’s judgment.

Our affirmance of the judgment as to the City does not, however, entitle the other defendants to take advantage of the voidness of any contractual arrangement involving Consolidated and the City. Under Alabama law, a party is entitled to recovery under a contract if that party’s right to recovery can be established without regard to a void stipulation. Denson v. Alabama Fuel & Iron Co., 198 Ala. 383, 393, 73 So. 525, 529 (1916). Notwithstanding the public policy counseling against the enforceability, as against public entities such as the City, of unbid contracts within the scope of competitive-bid laws, we see no reason why, to the extent that private entities, such as the contractor and the subcontractor, may have entered into contractual arrangements with Consolidated but have not complied with their obligations thereunder, those entities cannot properly be held hable (just as other private parties are liable) upon breach.

A reasonable view of the evidence of record at the time of, and the testimony adduced during the hearing on, the contractor’s and subcontractor’s dispositive motions supports the view that the “contract” at issue involved the contractor’s and the subcontractor’s having agreed to act as go-betweens with respect to the City and Consolidated to ensure that funds were disbursed to Consolidated for its having furnished its materials and supplies. As counsel for Consolidated noted in oral argument, although it was envisioned by all parties that the City would be the primary remitter to entities involved in the shopping-center project in order to avoid prevailing sales taxes, the contractor’s principal admitted during his deposition that, in the event that funds provided by the City proved not to be enough for infrastructure work, the question of payment “would fall under who bought the materials.” The contractor agreed in its answers to requests for admissions that it had given one of its purchase orders to Consolidated “to furnish materials for sanitary sewers and water lines in connection with the construction” of the project as to which it was the general contractor, and Consolidated’s credit manager testified that the materials themselves were delivered to the custody of the subcontractor. Thus, without regard to the involvement of the City as a limited third-party payor, there is evidence to support the proposition that either the contractor or the subcontractor “bought” the materials.

Under Alabama law, “whether parties have entered a contract is determined by reference to the reasonable meaning of the parties’ external and objective actions,” and “[c]onduct of one party from which the other may reasonably draw an inference of assent to an agreement is effective as [an] acceptance.” SGB Constr. Servs., Inc. v. Ray Sumlin Constr. Co., 644 So.2d 892, 895 (Ala.1994). In SGB, a summary judgment entered in favor of a general contractor and a municipal medical-clinic board on breach-of-contract claims brought by the lessor of heavy construction equipment was reversed on appeal because the record contained equipment-delivery tickets addressed by the lessor to the general contractor and evidence of payments to the lessor by the medical-clinic board. Id. Similarly, the trier of fact in this case may well conclude from the evidence of record that both the contractor and the subcontractor assented to Consolidated’s role as a sub-sub-contracting supplier of essential materials to the project that both private defendants were involved in constructing. Thus, the judgment under review is reversed as it applies to the contractor and the subcontractor, and the cause is remanded for further proceedings consistent with this opinion.

2090095 — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

2090096 — APPEAL DISMISSED.

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

      . " 'Where several actions are ordered to be consolidated for trial, each action retains its separate identity and thus requires the entry of a separate judgment.’ League v. McDonald, 355 So.2d 695, 697 (Ala. 1978).” Alabama Classic Homes, Inc. v. Wickes Lumber Co., 836 So.2d 885, 887 (Ala.Civ.App.2002).

      . We note that the City has been represented by a number of different lawyers during the protracted history of this case.

      .We thus do not reach the question whether the contract claimed to exist between Consolidated and the City may also be void under other laws concerning competitive bidding relied upon by the City, such as Ala.Code 1975, § 39-2-1 et seq. But see Ala.Code 1975, § 39-2-1(4) (under which "public property” upon which “public works" subject to competitive bidding are located includes real property that the awarding authority itself either owns or has a contractual right to own or purchase).

      . Consolidated did serve notice of its constitutional challenge upon the attorney general, who filed an answer and waiver as to further participation in the case.

      . We note that, at oral argument, counsel for the contractor candidly conceded that private entities such as the contractor are not subject to the competitive-bid laws of Alabama.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Neal GUTZMORE v. Curtis BARTHOLOMEW.
    2091059.
    Court of Civil Appeals of Alabama.
    Jan. 7, 2011.
    Rehearing Denied March 4, 2011.

      Gladys Yelverton of Legal Services Alabama, Inc., Dothan; and Thomas G. Keith of Legal Services Alabama, Inc., Huntsville, for appellant.
    Banks T. Smith, Dothan, for appellee.
   THOMAS, Judge.

Neal Gutzmore appeals from a judgment of the Houston Circuit Court (“the circuit court”) denying his claim of exemption from garnishment. We reverse and remand.

In February 2008, Curtis Bartholomew obtained a money judgment against Gutz-more. On August 20, 2009, Bartholomew filed a writ of garnishment in the Houston District Court (“the district court”), seeking to garnish Gutzmore’s wages. On November 5, 2009, Gutzmore filed a sworn declaration and claim of exemption, claiming that his wages were exempt from garnishment under Ala. Const. 1901, Art. X, § 204. On November 12, 2009, Bartholomew filed an objection to Gutzmore’s claim of exemption; Bartholomew’s objection was not sworn and was not accompanied by an affidavit. In his objection, Bartholomew argued that Gutzmore had already received an exemption under state and federal law for certain amounts of his wages and that Gutzmore had failed to provide required information concerning the specific location of his personal property. In response, Gutzmore amended his claim of exemption, adding his home address. On November 19, 2009, the district court entered an order staying the garnishment and setting a hearing.

Both parties submitted briefs to the district court. After reviewing the parties’ briefs, and without taking any ore tenus testimony, the district court entered an order on May 5, 2010, denying Gutzmore’s claim of exemption, setting aside its stay of garnishment, and ordering the garnishment of Gutzmore’s wages.

Gutzmore appealed the district court’s judgment to the circuit court. Bartholomew filed in the circuit court a motion to dismiss or, in the alternative, a motion for a summary judgment. After further briefing by both parties, the circuit court entered an order denying Gutzmore’s claim of exemption. Gutzmore filed a post-judgment motion, which the circuit court denied. Gutzmore subsequently appealed to this court.

This appeal involves a question of law. Therefore, our review is de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330, 334 (Ala.2006).

On appeal, Gutzmore argues that Bartholomew’s contest to Gutzmore’s claim of exemption was ineffective because, Gutz-more argues, Bartholomew’s objection was unsworn. A claim of exemption is considered prima facie correct. § 6-10-23, Ala. Code 1975. After a claim of exemption has been filed, the property claimed to be exempt “shall not be subject to levy unless there is endorsed on the process the fact that there has been a waiver of exemption as to the kind of property on which the levy is sought to be made or the claim is contested.” § 6-10-24, Ala.Code 1975. Gutzmore did not waive his exemption; thus, Gutzmore’s wages cannot be subject to garnishment unless Bartholomew properly contested Gutzmore’s claim of exemption.

The Alabama Supreme court has held that

“a contest is the exclusive method of preserving a levy after a claim of exemption is filed, Kennedy v. Smith, 99 Ala. 83, 11 So. 665 (1892); and that a claim of exemption, unless properly contested, must be upheld and the levy or other process released. Totten & Bros. v. Sale & Co., 72 Ala. 488 (1883); Poole v. Griffith, 216 Ala. 120, 112 So. 447 (1927).”

Ex parte Avery, 514 So.2d 1380, 1381 (Ala. 1987).

Section 6-10-25, Ala.Code 1975, provides the method that must be followed in order to contest a claim of exemption from garnishment. Section 6-10-25 provides, in pertinent part:

“A plaintiff, in person or by his or her agent or attorney, may contest a claim of exemption after a declaration thereof has been filed by making and filing with the officer holding the process an affidavit that, in his belief, either the claim is invalid entirely or it is invalid in part or is excessive, specifying wherein such invalidity or excess consists, and if excessive, also specifying the property alleged to be in excess, to be, in all cases, the last named in the claim.”

(Emphasis added.)

In this case, Bartholomew attempted to contest Gutzmore’s claim of exemption by filing an unsworn objection. This does not meet the requirements of § 6-10-25, which provides that any contest to a claim of exemption must be made by affidavit. Accordingly, Bartholomew did not properly contest Gutzmore’s claim of exemption. See Griffin v. Bank Street Fin., 587 So.2d 349, 350 (Ala.Civ.App.1991) (holding that a contest to a claim of exemption was ineffective when that contest was not by affidavit and did not properly state that the claim of exemption was invalid or excessive); Young v. Strong, 694 So.2d 27, 28 (Ala.Civ.App.1997) (holding that an un-sworn letter was insufficient to contest a claim of exemption). Because Bartholomew did not properly contest Gutzmore’s claim of exemption, the exemption must be upheld. See Griffin, 587 So.2d at 351; Young, 694 So.2d at 28. Therefore, we reverse the judgment of the circuit court and remand the cause for that court to enter a judgment consistent with this opinion.

Because we hold that Bartholomew did not properly contest Gutzmore’s claim of exemption, we pretermit discussion of Gutzmore’s remaining arguments on appeal.

REVERSED AND REMANDED.

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


author: THOMPSON, Presiding Judge.

text:
    Howard WELLS v. Roger WELLS, as administrator of the estate of Sarah Frances Wells.
    2091021.
    Court of Civil Appeals of Alabama.
    Jan. 14, 2011.
    Rehearing Denied March 25, 2011.

      Misty S. Ledbetter, Legal Services Alabama, Inc., Anniston, for appellant.
    Dani V. Bone, Gadsden, for appellee.
   THOMPSON, Presiding Judge.

Howard Wells (“Howard”) appeals from the judgment of the Etowah Circuit Court in favor of his brother, Roger Wells (“Roger”), the administrator of the estate of Sarah Frances Wells (“the estate”); Sarah Frances Wells (“the mother”) was the parties’ mother. This is the second time this case has been before this court. With minor exceptions, the facts pertinent to this appeal are set forth in this court’s prior opinion, Wells v. Wells, 49 So.3d 216, 217 (Ala.Civ.App.2010).

In the prior appeal, this court considered whether the evidence supported the trial court’s final judgment in favor of Roger, as administrator of the estate, that set aside a September 2007 deed transferring property containing the mother’s house to Howard on the basis of the trial court’s finding that the mother had suffered from a chronic mental incapacity and that, because of her diagnosis of chronic dementia, she had been incapable of experiencing a lucid moment at the time she signed the September 2007 deed. This court reversed that judgment. Although we concluded that there was sufficient evidence to support the trial court’s finding that the mother suffered from a chronic mental incapacity, we concluded that the evidence did not support the trial court’s finding that she was incapable of experiencing a lucid interval solely because she had been diagnosed with dementia. We remanded the case to the trial court to consider all the evidence that had been presented to it and to determine, based on that evidence, whether the mother had experienced a lucid interval at the time she signed the September 2007 deed. Wells, supra.

Following remand, the trial court entered a new judgment in which it concluded that the evidence did not support a finding that the mother had experienced a lucid interval at the time she executed the September 2007 deed. In its judgment, the trial court wrote, in pertinent part:

“This cause has been remanded to the trial court for further findings. Pursuant to the instructions of the Alabama Court of Civil Appeals, the trial court has considered the remaining evidence of record in order to determine whether or not the evidence supports a finding that [the mother], at the time she executed the September 2007 deed, was experiencing a lucid interval such that she was competent to execute the September 2007 deed. The Court determines that the evidence does not support such a finding.
“First, a lucid interval will not be assumed in the face of the finding of substantial evidence of permanent incompetence. The burden was upon [Howard] to prove [that the mother] was lucid at the time she executed the September 2007 deed. Ex parte Chris Langley Timber & Mgmt., Inc., 923 So.2d 1100, 1105 (Ala.2005).
“The only testimony presented by Howard ... directly related to this issue was the testimony of legal secretary Linda Gattis. Gattis had a one time meeting with [the mother] in a hospital room on the occasion of execution of the deed (the attorney who prepared the deed also testified, but never had a meeting with the [mother], only with [Howard]).
“The testimony [on behalf of the estate] on the subject came from Roger (the administrator of his mother’s estate) and wife Sherry Wells, who spent a substantial amount of time with the [mother] and knew her both before and after her hospitalization and assisted living placement became necessary in August of 2007 ([the mother] died on October 6, 2007).
“Unlike Linda Gattis’s one time encounter with the [mother], Sherry Wells testified that it had been her and Roger’s habit to speak with [the mother] every night on the phone and visit with her every weekend. They also bought her groceries, paid- her bills, and took her to the doctor.
“After the hospitalization in August of 2007, Sherry testified [that the mother] was unremittingly confused and unable to handle her affairs until her death in early October.
“Sherry testified that once [the mother] was placed in the hospital and then assisted living following her August 2007 episode, she and Roger would come up almost every evening and found [the mother] persistently mentally confused about her personal and business affairs on every occasion.
“Based on this extensive, almost daily contact with [the mother] from August 2007 to her death in October 2007, Sherry concluded [that the mother] was not in her right mind to make decisions or handle her affairs.
“Roger ... confirmed his wife’s experience and observations, concluding [that the mother] was unable to handle her business, and would not be able to appreciate the legal import and implication of her signature on any document such as a deed. While Roger said, based on his extensive time with his mother between August 2007 and October 2007, that he would not say she was under undue influence, he definitely could say [that the mother] did not know what she was doing.
“In conclusion, Linda Gattis, Sherry Wells, and Roger ... were the pertinent witnesses regarding [the mother’s] lucidity in the face of her diagnosed permanent dementia between August 2007 and her death. The opinion of someone that briefly met the deceased one time in her life in a hospital setting simply cannot be compared to the deference to be accorded two caregivers and their lifetime of experience with [the mother], particularly having maintained close contact with the [mother] between August 2007 and October 2007.
“The ore tenus testimony of Sherry and Roger Wells is found to be credible. With the [mother] lacking sufficient mental capacity with no lucid intervals present at the time she executed this deed, this subject deed is, if necessary, due to the reversal and remand, once again set aside and held for naught.”

Howard filed a timely appeal from that judgment to this court, which transferred the appeal to the supreme court for lack of appellate jurisdiction. The supreme court transferred the appeal back to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The standard by which this court is required to review the trial court’s judgment in this case is well settled. Because the trial court’s decision is based on ore tenus evidence, we will presume that its factual findings are correct, and we will not set them aside unless they are plainly and palpably wrong or unjust. See Tyler v. Tyler, 990 So.2d 423, 428 (Ala.Civ.App. 2008). We do not extend this presumption of correctness to the trial court’s application of the law to the facts, however. See Hinds v. Hinds, 887 So.2d 267, 271 (Ala. Civ.App.2003). Instead, we review a trial court’s application of the law to the facts de novo. See Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1255-56 (Ala.2004).

Howard contends that the trial court erred when it concluded that the mother was not experiencing a lucid interval at the time she executed the September 2007 deed. He argues that Roger did not introduce any evidence concerning the capacity of the mother at the time she executed the deed or even during the weeks before her execution of the deed. He argues, in effect, that the medical evidence that was presented at trial did not indicate that the mother was not experiencing a lucid interval at the time she executed the deed. Howard points out that five witnesses testified at the hearing that it had been the mother’s intent to convey her property to him, and he points out that both Gary Burns, the attorney who prepared the deed, and Linda Gattis, Burns’s legal secretary, testified that the mother was competent when she executed the deed. He points to Gattis’s testimony that she met with the mother, explained the deed to her, and was fully satisfied that the mother was competent to execute the deed. He argues that Gattis’s testimony was the only evidence of what occurred at the exact time the mother signed the deed and that the trial court should not have given any weight to the testimony of Roger and his wife, Sherry Wells (“Sherry”), because they were not present at the time the mother executed the deed.

As previously stated, when this case was first on appeal, this court determined that evidence of record sustained the trial court’s conclusion that the mother had suffered from mental incompetence that was permanent in nature. As a result of that finding, the burden shifted to Howard to demonstrate, by clear and convincing evidence, that, despite the mother’s permanent incompetence, she was experiencing a lucid interval at the time she executed the September 2007 deed, see Ex parte Chris Langley Timber & Mgmt., Inc., 923 So.2d 1100, 1105 (Ala.2005); Abbott v. Rogers, 680 So.2d 315, 317 (Ala.Civ.App.1996), and that her execution of the deed “proceeded from [her] unaided volition.” Willis v. James, 284 Ala. 673, 678, 227 So.2d 573, 578 (1969).

Our review of the evidence presented to the trial court leads us to conclude that the trial court had before it sufficient evidence to determine, as it did, that the mother did not experience a lucid interval at the time she executed the September 2007 deed. Roger’s and Sherry’s testimony indicated that they spent a substantial amount of time with the mother, that they spoke with her by telephone every night, and that they visited with her almost every weekend. Their testimony further indicated that they provided a substantial amount of care to the mother, including shopping for her groceries, paying her bills, preparing her food, and handling her business affairs. Sherry testified that Roger and she would visit the mother almost every night after they left work, apparently during the period in question. Both Sherry and Roger testified to the mother’s problems with her memory, which were manifested by her repeating herself and by her asking the same questions multiple times. They testified that the mother was unable to handle her business affairs. Sherry testified that the mother would not have known what she was signing when she executed the deed conveying the property to Howard, and Roger testified that, in signing the deed conveying the property to Howard, the mother had not known what she was doing. Roger further testified that the mother would have signed anything that was placed in front of her.

Although Burns testified that the mother was competent to execute the deed, the trial court properly could have rejected his testimony on this issue on the basis that Burns spoke with the mother on only a single occasion and never met her in person. The trial court could have determined that Burns simply did not know the mother well enough to know whether, on the one occasion he spoke with her on the telephone, the mother truly “ ‘ “ ‘had sufficient capacity to understand in a reasonable manner the nature and effect’ ” ’ ” of executing the September 2007 deed. Ex parte Chris Langley Timber & Mgmt., Inc., 923 So.2d at 1105 (quoting Wilson v. Wehunt, 631 So.2d 991, 996 (Ala.1994), quoting in turn other cases). Furthermore, the trial court was free to consider any bias Burns may have had in testifying to the validity of the deed, given that he was the attorney who prepared it.

We recognize, as Howard argues, that Gattis was the only witness to testify as to what happened when the mother signed the September 2007 deed and that she testified that, at that time, the mother was competent to execute the deed. However, the trial court, in its role as fact-finder, was able to evaluate Gattis’s demeanor and credibility, and it was free to reject her testimony as being not credible. See Smith v. Smith, 887 So.2d 257, 262 (Ala. Civ.App.2003), in which this court wrote:

“ ‘ “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” ’ Ex parte Anonymous, 803 So.2d 542, 546 (Ala.2001) (quoting Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986)). Thus, the mother’s contention that the ore tenus rule does not apply to this case because she presented the only testimony and, therefore, the facts are undisputed, is incorrect. The trial court heard both the mother’s testimony on direct examination and on cross-examination, and it had the opportunity to evaluate the mother’s demean- or and credibility.”

The trial court was free to give less weight to Gattis’s testimony because it could have concluded that she had never met the mother or spoken with her previously and, as a result, did not have a relationship with the mother that would have truly allowed her to know whether the mother actually understood what she was executing. The trial court also could have considered the potential bias of Gattis in testifying that the mother appeared to have the capacity to execute the September 2007 deed, given that, to have testified otherwise, Gattis would have been admitting that she knowingly allowed the mother to execute the deed despite the mother’s inability to understand what she was doing. The trial court likewise could have concluded that Gattis’s testimony was exaggerated, given the testimony of Roger and Sherry as to the mother’s inability to conduct her business affairs, and as to her confusion and memory problems, and Roger’s testimony that the mother was in such a state that she would sign any document placed in front of her.

We also note that the testimony of the three individuals who indicated that the mother had, for years, told them that she intended to leave her house to Howard is evidence of her competency to execute the September 2007 deed. See McKinney v. Weatherford, 242 Ala. 493, 496, 7 So.2d 259, 262 (1942). However, that testimony did not require the trial court, as the trier of fact, to conclude that the mother had experienced a lucid interval at the time she executed the September 2007 deed any more than in Wells it required the trial court to conclude that the mother had not suffered from an incompetency that was permanent in nature. It simply does not follow that, because the mother previously had expressed a desire to leave her house to Howard, her permanent incompetence had subsided and she was lucid at the time the September 2007 deed, procured largely as a result of Howard’s efforts, was presented to her for execution.

Based on the foregoing, we conclude that Howard has failed to demonstrate a basis for finding error in the trial court’s judgment. As a result, that judgment is due to be affirmed.

AFFIRMED.

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

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

      . In Wells, we stated that the mother was hospitalized from the summer of 2007 until her death in October 2007. Although the record was unclear in that case, it appears that that was a misstatement and that she was in and out of the hospital during that period.

      . In his reply brief, Howard states that Burns testified that he spoke with the mother several times. Our review of Burns’s testimony reveals that he stated that he telephoned the mother only once, and his testimony does not indicate that the mother ever called him. Furthermore, he testified that he believed that the mother was competent based on "the conversation” he had had with her.


author: PER CURIAM.

text:
    M.J.C. v. G.R.W. and K.W. A.C. v. G.R.W. and K.W.
    2090869 and 2090889.
    Court of Civil Appeals of Alabama.
    Jan. 21, 2011.
    Certiorari Petitions Denied March 4, 2011 Alabama Supreme Court 1100514 and 1100522.

      Jonathan M. Welch of The Law Office of Philip E. Miles, LLC, Gadsden, for appellant M.J.C.
    Joseph M. Willoughby of Day & Wil-loughby, P.C., Gadsden, for appellant A.C.

      Shaun Malone of The Malone Law Firm, Gadsden, for appellees.
   PER CURIAM.

A.C. (“the mother”) and M.J.C. (“the father”) are the married parents of four children. Their youngest child, M.C. (“the child”), has lived with G.R.W. and K.W. (“the custodians”) since shortly after his birth in January 2006. In November 2008, on petition of the custodians, the Etowah Juvenile Court granted the custodians custody of the child. On December 4, 2009, the custodians filed a petition to terminate the parental rights of the parents. After a trial in May 2010, the juvenile court entered a judgment terminating the parental rights of both parents. After their jointly filed postjudgment motion was denied, both parents timely appealed, and their appeals were consolidated.

“A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990).”

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ. App.2004). A juvenile court’s judgment terminating parental rights must be supported by clear and convincing evidence. Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988). “ ‘[CJlear and convincing evidence’ ” is “‘[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting Ala.Code 1975, § 6-11-20(b)(4)). The juvenile court’s factual findings in a judgment terminating parental rights based on evidence presented ore tenus are presumed correct. K.P. v. Etowah County Dep’t of Human Res., 43 So.3d 602, 605 (Ala.Civ.App.2010). Furthermore, when the juvenile court has not made specific factual findings in support of its judgment, we must presume that the juvenile court made those findings necessary to support its judgment, provided that those findings are supported by the evidence. D.M. v. Walker County Dep’t of Human Res., 919 So.2d 1197, 1210 (Ala.Civ.App.2005).

The termination of parental rights is governed by Ala.Code 1975, § 12-15-319. That statute reads, in part:

“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
“(2) Emotional illness, mental illness, or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for needs of the child.
“(4) Conviction of and imprisonment for a felony.
“(9) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of support of the child, where the parent is able to do so.
“(12) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

As noted above, the child has been living with the custodians since shortly after his birth. The record does not reflect exactly why the child was placed in the home of the custodians, but it is clear from the record that the parties agreed to the arrangement at that time. The custodians testified that, at the time they took the child into their home, they believed that they would adopt the child. However, the father testified that, at the time the child was placed with the custodians, the custodians swore that they would not try to take the child away from the father.

The custodians sought legal custody of the child in the fall of 2008. The record does not contain the petition by which the custodians sought custody or a transcript of the trial on the custody petition. However, the juvenile court awarded custody of the child to the custodians in November 2008. The mother was awarded visitation with the child; the testimony at trial indicated that the visits were to be supervised and held in the home of her mother and stepfather, G.N. (“the maternal grandmother”) and S.N. (“the maternal grandfather”) (referred to collectively as “the maternal grandparents”). The father, who was incarcerated at the time, was not awarded specified visitation with the child.

At the time of the May 2010 trial on the termination-of-parental-rights petition, the mother had pleaded guilty to robbery in the second degree; she was awaiting sentencing. The mother was not employed at the time of trial, although she testified that she had put in several applications for employment; she said that her pending criminal charge had prevented her from being offered employment. The mother had been employed at Pilgrim’s Pride, a chicken-processing plant, for two or three months in the fall of 2009 and for a week or two weeks at another place of employment. However, she said that she did clean houses periodically for some relatives.

The mother testified that she and her other three children live with the maternal grandparents. She said that she had lived with the maternal grandparents from the time that the father was first imprisoned in 2008 because she and the other three children could not afford the house payment without the father’s income. However, she said that she did assist the maternal grandparents by contributing money toward household expenses and by paying for groceries. The maternal grandmother also testified that the mother paid part of her earnings to the maternal grandmother for household expenses in lieu of rent.

The mother denied the accusation that the maternal grandmother parented the other three children. She said that she, and not the maternal grandparents, was the primary caregiver for the other children. However, the record reflects that the eldest child of the parties, who is the biological child of the mother and the father’s brother, had resided primarily with the maternal grandmother for most of that child’s life.

The mother denied having left the maternal grandparents’ home to live with other people, including her one-time boyfriend and codefendant in the robbery case, K.B. She said that she had sometimes “stayed with” another person for a short time but that she had never lived with anyone other than the maternal grandparents. Both the mother and the maternal grandmother testified that the maternal grandfather had kicked the mother out of the house in the fall of 2008, after the robbery, when the mother began seeing K.B. again; the maternal grandmother testified that the mother was gone for only about three days, and the mother said that she worked it out with the maternal grandfather so she could move back into the home. At the time of trial, the mother was spending the weekends she did not have visits with the child at the home established by the father, where they intended to live as a family once the school year concluded.

The mother testified that she had offered the custodians clothing and had offered to help with anything the child needed but that the custodians had always refused when she made such offers. She said that she did purchase the child presents, including toys and clothing, most of which remained at the maternal grandparents’ home for the child’s use when he visited there. However, the evidence also reflected that the mother’s children had been the recipients of Christmas gifts donated by a local church. The mother said that the custodians had never told her that some of the child’s medical expenses were not covered by Medicaid.

The father testified that, at the time the custody judgment was entered in November 2008, he was incarcerated on a third-degree burglary charge. Although the father was released from jail in early December 2008, he violated his probation when he attempted to pass off someone else’s urine sample as his own. The father began serving the remainder of his sentence on May 6, 2009; he was released in January 2010 after he completed his sentence.

At the time of trial, the father testified, he was on “color code” drug testing based on a “Gadsden city charge” for marijuana possession from 2002. The father testified that he had passed all of his drug tests except for one, on which he had tested positive for a physician-prescribed painkiller. The father said that he provided a prescription for the painkiller after he tested positive for the controlled substance; because the father had a legal prescription, that positive test was excused. However, when questioned further at trial, the father admitted that he had not informed any one at the color-code program that he had been drinking alcohol or that the painkiller had been prescribed as a result of injuries resulting from an automobile accident he had been involved in while he was drunk in March 2010, only two months before the termination trial. The father further admitted that he had five felony convictions on his record: two forgery convictions, a theft-by-fraudulent-leasing conviction, an unlawful-possession-of-a-controlled-substance conviction, and the third-degree burglary conviction.

The father also admitted that he had not paid the custodians any child support or provided any other financial support for the child during his periods of incarceration. However, the father testified that he had helped the custodians in any way they asked him when he was not incarcerated, including providing clothing for the child and helping G.R.W. cut timber or work on his trucks. The father said that he had offered the custodians money more recently, in March 2010, but that they had refused it. At the time of trial, the father testified, he was working for his brother at the brother’s towing and recovery business, earning $500 per week, or approximately $2,000 per month. The father testified that his monthly expenses were approximately $1,000 and that he typically had “about $1,000 extra” at the end of the month.

The father said that he lives in a house he rents from his brother. The house, said the father, has four bedrooms; he said that his two sons would share one room and that his daughters would each have their own room, leaving one room for him and the mother. He testified that he and the mother had decided to wait until the school year was over before she and the other three children moved in with him because the children were in the middle of the school year and the move would require them to change schools. According to the father, he and the mother intended to resume living together over the summer and to enroll the children in a school nearby for the fall semester. The father also testified that he had access to an automobile and that the mother would drive him where he needed to go; at the time of trial, the father had not yet had his drivers’ license reinstated because, he said, he could not afford the reinstatement fee despite his testimony that he had approximately $1,000 left after paying his bills each month and testimony that he had purchased two used automobiles since his release from prison in January.

According to the maternal grandmother, the mother was a proper parent to her other three children. The maternal grandmother said that the mother took care of her own children. She also testified that the father was “a good daddy” and that she had no reservations about him as a parent, despite his felony convictions and history of imprisonment. When asked whether she would be willing take custody of the child if the juvenile court determined that the parents were unfit, the maternal grandmother responded in the affirmative.

The maternal grandmother admitted that the November 2008 custody judgment stated that the mother had an obligation to financially provide for the child; however, the maternal grandmother noted that the judgment did not set an amount of child support. According to the maternal grandmother, the custodians had stated that “they are not asking [the mother] for nothing.” The maternal grandmother testified that she had heard the mother offer the custodians financial support and that the custodians had refused. She said that she had never heard the father make any offers of financial support to the custodians but that she had heard him and the mother discuss making offers to the custodians to provide clothing and other items for the child.

K.W. testified that the child had lived with the custodians since he was five days old. She said that she and G.R.W. had always believed that they would adopt the child. She explained that she was self-employed and that she sat with the ill and elderly overnight. G.R.W., she explained, drove a truck and hauled logs for a living. Because G.R.W. worked during the day and she worked during the night, K.W. said, at least one of them was home to supervise the child at nearly all times. K.W. said that the November 2008 custody judgment provided the mother visitation supervised by the maternal grandmother at the maternal grandparents’ home. K.W. said that she had learned that the mother was not living with the maternal grandparents at certain times; according to K.W., the mother had lived for a time with K.B., her boyfriend and her codeferi-dant on the robbery charge, and with J.T., another male friend, for another period.

K.W. testified that she and G.R.W. had three children of their own: J.W., who was 20 at the time of trial, K.A.W., who was 17 at the time of trial, and S.W. who was 16 at the time of trial. K.W. said that only S.W. still lived at home with the custodians. K.W. also said that S.W. sometimes provided transportation for the child and that she babysat him on occasion.

K.W. denied that either parent offered financial assistance to the custodians. She testified that the child was covered by Medicaid, and she said that the custodians paid for any noncovered medical expenses for the child, like the child’s over-the-counter medications, which K.W. said had cost approximately $200. K.W. admitted that she had never asked the parents for reimbursement of those expenses.

When asked why she had filed the petition to terminate the parents’ parental rights, K.W. explained that the mother was facing sentencing on her robbery conviction at the time the petition was filed and that the father was also a convicted felon; based on those issues, K.W. said, she felt that the child’s custodial situation needed to be “set and final.” When asked whether the custodians had considered other viable options for placement of the child, K.W. said that no one from either parent’s family had “stood up” to take custody of the child since his birth. K.W. specifically focused on the father’s status as a felon, his periods of incarceration, and his history of drug issues as a basis for discounting his ability and fitness to assume custody of the child. She did admit, however, that “as far as she knew” the father had a place to live, transportation, and employment. She also intimated that the mother’s behavior, including her leaving her other three children to be cared for by the maternal grandparents while she spent the night with various people while the father was incarcerated, amounted to a pattern of allowing others to assume responsibility for her children. Thus, K.W. was of the opinion that the mother was unwilling to discharge her responsibilities as a parent.

Some of the testimony at trial also focused on an automobile accident in which the parents had been involved on March 1, 2010. A -witness at the scene of the accident, Sandra Harris, testified that an automobile accident had occurred outside of her home on that date. Harris testified that she did not know either the mother or the father personally. She explained that when she approached the scene of the accident she observed the mother attempting to assist someone out of the automobile. Harris described the mother’s actions and behavior as stumbling around outside the automobile, acting hysterically, and screaming that “they” were trying to kill her. According to Harris, two other women were at the scene and one or both of the women was “verbally abusing” the mother; Harris reported that the women kept repeating that “he did not deserve this.” According to Harris, the mother appeared afraid for her life. Harris said that those women left once she informed them that she had telephoned emergency 911.

Harris said that the mother’s speech had been slurred and that the mother had used Harris’s telephone to contact her family. Harris also said that the mother had mentioned “helping Cody.” Harris said that the driver of the automobile, who she had assumed was the father, had been stuck in the driver’s seat for a time; later, she said, he had been slumped over the hood of the automobile, which had hit a tree.

The mother and the father both testified about the accident as well. The mother admitted that she had been drunk, as did the father. However, both of them said that the father had not been driving the automobile and that a friend named Cody had been the driver. The parents were both taken to the hospital after the accident. At trial, counsel discovered that the mother’s medical records were not included in the hospital records admitted into evidence. The juvenile court and the parties agreed that the evidence would be held open for the admission of the mother’s medical records and that the juvenile court would review the records in camera. Although the mother’s medical records were admitted into evidence and were relied on by the juvenile court, as evidenced by the reference to them in the judgment, only the father’s medical records appear in the record on appeal.

The guardian ad litem, Stephanie Gilli-lan, testified briefly at the conclusion of the trial. She testified concerning her observation of the homes of the various parties. According to Gillilan, the custodians’ mobile home was suitable and the child appeared well adjusted in the home. Gilli-lan also noted that the maternal grandparents’ home, where the mother and her other three children were living, was also suitable and appropriate as a home for the child. Gillilan said that she had also visited the father’s new residence, which she described as clean and appropriately furnished. Gillilan expressed no reservations about the suitability of any of the homes she had visited.

The judgment terminating the parental rights of both parents lists several grounds upon which the juvenile court based its decision. The juvenile court concluded that, regarding the mother, the record contained sufficient evidence of the excessive use of alcohol because the mother’s medical records from her admission to the hospital after the March 2010 automobile accident indicated that she had consumed a six pack of beer and a pint of liquor. The juvenile court further concluded that the mother had failed to provide for the material needs of the child by failing to pay the custodians any amount for the support of the child; that she had shown a lack of effort to adjust her circumstances to meet the needs of the child, as evidenced by her dependence on others, like the maternal grandparents, for housing; and that the mother had been convicted of a felony and was awaiting sentencing on that felony conviction.

Regarding the father, the juvenile court concluded that he, too, had failed to pay support to the custodians for the benefit of the child. The judgment further recited as a basis for termination that the father had failed to adjust his circumstances to meet the needs of the child, as evidenced by his failure to bring the mother and the other three children to live with him at the residence he had established, and that the father had excessively used controlled substances. Finally, the juvenile court determined that the father had been convicted of and imprisoned for a felony.

I. Grounds for Termination

A. The Mother’s Arguments

The mother argues that the custodians did not prove grounds for termination of her parental rights by clear and convincing evidence. Our review of the record, however, convinces us that the custodians presented evidence supporting two grounds for termination of the mother’s parental rights under § 12-15-319(a) — the mother’s failure to pay any support for the child and her excessive use of alcohol. We further conclude that those grounds for termination were supported by clear and convincing evidence.

The mother challenges the juvenile court’s determination that the mother had failed to provide support to the custodians despite her ability to do so. See § 12-15-319(a)(9). The mother did testify that she had provided clothing and that she had offered clothing and other items to the custodians only to have her offers of assistance refused. However, K.W. disputed the mother’s testimony on this point, stating that neither parent had offered any meaningful support to the custodians since the entry of the custody judgment in November 2008. The juvenile court, as the trier of fact, was in the position to weigh the credibility of the respective parties and other witnesses and to determine what were the true facts. See W.P. v. Madison County Department of Human Res., 980 So.2d 1016, 1021 (Ala.Civ.App.2007); see also C.J. v. Marion County Dep’t of Human Res., 5 So.3d 1259, 1271 (Ala.Civ.App. 2008) (quoting Woods v. Woods, 653 So.2d 312, 314 (Ala.Civ.App.1994)) (discussing the ore tenus presumption and the role of the juvenile court judge as the “ ‘sole judge of the facts and of the credibility of witnesses’ ”). The juvenile court’s resolution of the issue in favor of the custodians is protected by the ore tenus presumption, and we may not disturb its determination. W.P., 980 So.2d at 1021. Thus, we conclude that the custodians established, by clear and convincing evidence, this ground for the termination of the mother’s parental rights.

The mother further challenges the juvenile court’s finding that the mother’s excessive use of alcohol rendered her unable to parent the child. The mother argues that the juvenile court’s finding, which, she says, was based on one incident of alcohol abuse in March 2010, was insufficient to establish that she abused alcohol to such an extent as to render her unable to care for the child. We disagree.

We note that the juvenile court, in making its specific finding that the mother had abused alcohol in March 2010, relied on the mother’s medical records from the March 2010 automobile wreck, in which, the judgment states, the mother admitted drinking a six pack of beer and a pint of liquor. Although those medical records are not contained in the record on appeal, we must presume that they support the juvenile court’s findings. See Vaughan v. Oliver, 822 So.2d 1163, 1170 (Ala.2001) (quoting Berryhill v. Mutual of Omaha Ins. Co., 479 So.2d 1250, 1251 (Ala.1985)) (“ ‘Where all the evidence is not in the record, it will be presumed that the evidence was sufficient to sustain the verdict or judgment.’ ”). In addition to the missing medical-record evidence, the testimony of Harris supports a conclusion that the mother was inebriated at the time of the March 2010 accident. The evidence, therefore, established that the mother had abused alcohol in March 2010, a mere two months before the termination trial commenced.

However, in addition to reciting the finding regarding the mother’s abuse of alcohol in March 2010, the juvenile court necessarily determined that the evidence satisfied § 12 — 15—319(a)(2) and that the evidence supported a determination that the mother had excessively abused alcohol and that her abuse of alcohol was “of a duration or nature as to render the parent unable to care for needs of the child.” The juvenile court considered evidence that we do not have in the appellate record, and it had heard evidence concerning the mother’s ability to parent at the trial that resulted in the 2008 judgment awarding custody of the child to the custodians. The juvenile court was free to consider its knowledge of “ ‘the past history of the family as well as the evidence pertaining to current conditions’ ” when considering the termination of the mother’s parental rights. A.R. v. State Dep’t of Human Res., 992 So.2d 748, 760 (Ala.Civ.App.2008) (quoting T.B. v. Lauderdale County Dep’t of Human Res., 920 So.2d 565, 570 (Ala. Civ.App.2005)). We cannot conclude, then, that the juvenile court did not have evidence from which it could have properly-concluded that the mother had a longstanding problem with alcohol. In addition, we note that, because the mother, during the period after the termination petition was filed and while she awaited sentencing on felony robbery charge, evinced such clouded judgment as to become so inebriated that she was described as “stumbling” and admitted to drinking a large quantity of alcohol, we cannot agree with the mother that the evidence, as viewed by the juvenile court, was not clear and convincing evidence that she abused alcohol to such an extent as to make her unable to care for the child. Certainly, the mother’s lapse in judgment, coming so close in time to the termination trial, see D.O. v. Calhoun County Dep’t of Human Res., 859 So.2d 439, 444 (Ala.Civ.App.2003) (indicating that a juvenile court should base its decision on the termination of parental rights on the current condition of the parents), was evidence from which the juvenile court could have concluded that the mother had not made any effort to adjust her circumstances for the welfare of her child.

B. The Father’s Arguments

Like the mother, the father argues that the juvenile court’s factual findings regarding the grounds for termination were not supported by clear and convincing evidence. Based on our review of the record, we conclude that the evidence presented by the custodians implicates two grounds under § 12-15-319(a) for the termination of the father’s parental rights — the father’s conviction of and imprisonment for a felony and the father’s excessive use of alcohol and controlled substances. Further, our review of the record supports the juvenile court’s conclusion that the custodians established clear and convincing evidence of those grounds for the termination of the father’s parental rights.

The juvenile court relied, in part, on § 12 — 15—319(a)(4), which lists as a potential ground for termination of parental rights that the parent has been convicted of or imprisoned for a felony. The father testified that he had been convicted of five felonies and that he had served out a sentence of incarceration for those felonies after his probation was revoked in May 2009. Thus, the evidence establishes that the father was convicted of and imprisoned for a felony.

The father first argues that the juvenile court was required to consider his current circumstances and not his past circumstances in determining whether termination of his parental rights was warranted. The father is correct that “[t]his court has consistently held that the existence of evidence of current conditions or conduct relating to a parent’s inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence.” D.O., 859 So.2d at 444. However, as noted earlier, we have explained that, “ ‘[i]n deciding to terminate parental rights, a trial court may consider the past history of the family as well as the evidence pertaining to current conditions.’ ” A.R., 992 So.2d at 760 (quoting T.B., 920 So.2d at 570). The father’s past criminal history was relevant and was properly considered by the juvenile court. As will be further discussed below, the father’s felony convictions and resulting imprisonment did not become irrelevant merely because the father had completed his sentence. See J.L. v. State Dep’t of Human Res., 961 So.2d 839, 849 & 849 n. 3 (Ala.Civ.App.2007).

The father further argues that, pursuant to W.P., 980 So.2d at 1023, the juvenile court’s reliance on his past convictions is not warranted because the juvenile court should focus on the father’s current circumstances and because the father in the present case, like the father in W.P., has taken steps to adjust his circumstances for the good of the child. However, we noted in W.P. that the conviction the juvenile court relied upon was not established as a felony conviction and that it, and a few other criminal incidents, had occurred three or four years before the termination trial in that case. W.P., 980 So.2d at 1023. In the present case, however, the father was convicted of five felonies only a few years before the termination hearing and he was imprisoned after violating his probation only about one year before the termination trial.

More importantly, however, we have held that a juvenile court may rely on any felony conviction and resulting imprisonment as a basis for terminating parental rights, regardless of when the conviction and imprisonment occurred. J.L., 961 So.2d at 849 & 849 m 8 (noting that former § 26-18-7(a)(4), Ala.Code 1975, the predecessor statute to § 12-15-319(a)(4), “contain[ed] no language limiting the felonies a [juvenile] court should consider only to those for which the parent is currently incarcerated”). Thus, we conclude that the father’s reliance on W.P. is unavailing, as is his argument that the juvenile court erred by failing to consider his current circumstances. The undisputed evidence establishes that the father was convicted of and imprisoned for five felonies; the juvenile court was permitted to rely upon those convictions and resulting imprisonment as a ground for termination of the father’s parental rights.

The record also supports the juvenile court’s conclusion that the father had abused controlled substances. In addition to admitting that he had violated his probation in the spring of 2009 because he had attempted to use another’s urine to pass a drug test because he would have tested positive for the use of marijuana, the father admitted having been drunk at the time of the March 2010 accident. His medical records at the time of the March 2010 accident reflect that he informed a physician that he had a history of both alcohol and drug abuse but that he had not been abusing either in the past “few years” or “year and a half,” a period that is not supported by the other evidence of record, which established that the father had used marijuana in the spring of 2009, when he violated his parole and was sent to prison. Thus, the juvenile court had sufficient evidence from which to determine that the father’s admitted drug and alcohol abuse had not abated but had continued even to the time shortly before the termination trial. Based on the evidence of the father’s current condition, the juvenile court did not err in concluding that the evidence established clearly and convincingly that the father had not adjusted his circumstances for the welfare of the child.

II. Viable Alternatives

Having determined that the evidence clearly and convincingly establishes grounds for termination of the parental rights of both the mother and the father, we now turn to the parents’ arguments that the custodians failed to prove that no viable alternative to the termination of the parents’ parental rights existed. We have long held that any nonparent seeking a termination of parental rights must establish both the dependency of the child and that no viable alternative to termination of parental rights exists under the circumstances. See C.E.W. v. P.J.G., 14 So.3d 166, 170 (Ala.Civ.App.2009). The parents both assert that the maternal grandmother’s offer at trial to take custody of the child if the juvenile court were to determine that the parents were not fit to take custody of the child presented a viable alternative to termination of their respective parental rights. Relying primarily on C.E.W., in which this court reversed the termination of a father’s parental rights because the custodian failed to present evidence indicating that no viable alternative to the termination of the father’s parental rights existed, the parents argue that the custodians failed to present evidence indicating that no viable alternative to terminating the parents’ rights existed and that, in fact, the maternal grandmother’s expressed interest at trial in assuming custody of the child if the parents were not permitted to do so was itself a viable alternative. We disagree.

Although this case involves only private parties, we have held in cases in which the Department of Human Resources is a petitioner that testimony presented in a termination-of-parental-rights trial regarding a potential relative resource comes too late in the process for the potential resource to be considered as a viable alternative to termination. C.T. v. Calhoun County Dep’t of Human Res., 8 So.3d 984, 989 (Ala.Civ.App.2008); and B.S. v. Cullman County Dep’t of Human Res., 865 So.2d 1188, 1196-97 (Ala.Civ.App. 2003); see also A.E.T. v. Limestone County Dep’t of Human Res., 49 So.3d 1212, 1215 (Ala.Civ.App.2010) (affirming a juvenile court’s failure to grant a continuance of a termination-of-parental-rights trial so that the father could attend to present live testimony as opposed to deposition testimony because the father, at best, could have presented evidence of only potential relative resources that would have been precluded from consideration because of the “last-minute nature” of the suggestions). In C.T., we explained that the law does not require a juvenile court considering the termination of parental rights to “delay consideration of the termination of a parent’s parental rights because a parent has, immediately before or during a termination hearing, identified a new possible relative resource for the child.” C.T., 8 So.3d at 989. In B.S., we determined that “the mother’s last-minute questioning of [a proposed resource] to determine whether [she] would be willing to serve as an alternate placement for the child, even where [the proposed resource] responded in the affirmative, was not sufficient to constitute a truly viable alternative to the termination of the mother’s parental rights.” 865 So.2d at 1197. Thus, this court has determined that the last-minute proffer of a potential resource for a child’s placement will not suffice to delay the termination of parental rights.

K.W.’s testimony at trial that no relatives of the parents had come forward in the four years since the child’s birth to offer to take custody of him was sufficient to support the juvenile court’s conclusion that no other viable alternative to termination of the parents’ parental rights existed. The last>-minute nature of the maternal grandmother’s offer to assume custody of the child does not undermine the juvenile court’s conclusion. The record does not indicate that the maternal grandmother had offered to take custody of the child at the time of its birth or at any time since the child was placed with the custodians. The custodians, who have reared this child since his birth, desire to give the child permanency and stability, and, in light of the parents’ apparent lack of desire to take responsibility for the child during the first four years of his life, we cannot disagree with the juvenile court’s conclusion that no viable alternative to the termination of the parents’ parental rights existed in the present case. See B.J.C. v. D.E., 874 So.2d 1109, 1118 (Ala.Civ.App.2003), overruled on other grounds by F.G. v. State Dep’t of Human Res., 988 So.2d 555 (Ala. Civ.App.2007) (noting that the custodians who sought termination of parental rights were seeking to give the child “permanency and security” and that maintaining the status quo and permitting the parent additional time to adjust his circumstances was not a viable alternative to termination).

Because the custodians established grounds for termination of the parental rights of both the mother and the father, and because the juvenile court’s determination that no viable alternative to termination of those rights existed is supported by the evidence at trial and is not undermined by the maternal grandmother’s last-minute offer to assume custody of the child, the judgment of the juvenile court terminating the parental rights of the mother and the father is affirmed.

2090869 — AFFIRMED.

2090889 — AFFIRMED.

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

      . The mother also argues that another viable alternative to termination was the return of the child to the parents. However, in light of our conclusion that the custodians proved grounds for termination, returning the child to the parents would not have been a viable alternative for the juvenile court. See T.G. v. Houston County Dep’t of Human Res., 39 So.3d 1146, 1153 (Ala.Civ.App.2009) (affirming the rejection of the option of returning children to the home of the mother as a viable alternative when the mother had been determined to be unable or unwilling to care for the children and grounds for termination of her parental rights existed).