author: THOMAS, Judge.

text:
    Tina Taylor ADKINS v. William Keith ADKINS.
    2080744.
    Court of Civil Appeals of Alabama.
    Jan. 22, 2010.
    Rehearing Denied March 19, 2010.
    Certiorari Denied Nov. 12, 2010 Alabama Supreme Court 1090911.

      J. Patrick Cheshire, Selma; and Kyra L. Sparks, Selma, for appellant.
    John Olszewski and Floyd Minor of Minor & Olszewski, L.L.C., Montgomery, for appellee.
   THOMAS, Judge.

Tina Taylor Adkins (“the former wife”) appeals from a summary judgment in favor of William Keith Adkins (“the former husband”) on the former wife’s contempt motion and from the denial of the former wife’s Rule 60(b)(3), Ala. R. Civ. P., motion. We affirm in part and dismiss in part.

The former husband and the former wife were divorced in December 2005. The parties entered into an agreement, which the trial court incorporated into its divorce judgment.

The section of the divorce judgment concerning alimony states:

“[The former husband] shall pay to [the former wife], as periodic alimony, and not as alimony in gross and not as a property settlement, the sum of $700.00 per month commencing December 5, 2005 and continuing monthly thereafter until February 5, 2010. Additionally, [the former husband] shall pay to [the former wife], as periodic alimony, and not as alimony in gross and not as a property settlement, a sum of $7,000.00 per month beginning the 5th day of December, 2005, and payments shall continue for a period of 284 months or until [the former wife] reaches the age of sixty-five (65) years or dies, whichever event first occurs. Said periodic alimony payments are specifically intended to survive remarriage and/or cohabitation ....
“Should circumstances occur that affect [the former husband’s] ability to practice medicine as he currently does, [the former husband] may seek modification of said periodic alimony. Said modification in the amount of periodic alimony due and payable to [the former wife] must be done via a formal modification through a Court of appropriate jurisdiction or as otherwise provided by law.
“The aforementioned periodic alimony is for a fixed amount and is to be distributed in equal monthly increments and modifiable only as mentioned heretofore. Said periodic alimony shall be includable income to [the former wife] and deductible by [the former husband] for income tax purposes.”

In January 2006, the former wife remarried. In July 2006, the former husband discovered that the former wife had remarried and stopped paying alimony to the former wife. That same month, the former wife moved the trial court to hold the former husband in contempt for his failure to pay alimony. The former husband answered and counterclaimed, alleging that the former wife was in contempt for failing to pay the mortgage on the marital residence. On February 5, 2007, the former husband moved the trial court for a summary judgment, alleging that the alimony payments described in the parties’ agreement represented periodic alimony and that, therefore, his obligation to pay alimony necessarily terminated when the former wife remarried. The trial court denied the former husband’s motion.

On June 20, 2007, the former wife moved the trial court, pursuant to Rule 60(b)(3), to set aside the divorce judgment, alleging that the alimony provisions in the divorce judgment were the product of fraud. The former husband moved the trial court to dismiss the former wife’s Rule 60(b)(3) motion, arguing that the motion had not been timely filed. On September 8, 2008, the trial court granted the former husband’s motion and dismissed the former wife’s Rule 60(b)(3) motion.

On July 16, 2008, the former husband again moved the trial court for a summary judgment on the former wife’s contempt claim, arguing that the alimony provisions in the divorce judgment awarded the former wife periodic alimony and not alimony in gross. The former wife responded to the former husband’s motion, and, on September 9, 2008, the trial court held a hearing on the former husband’s summary-judgment motion. On October 22, 2008, the trial court entered a summary judgment in favor of the former husband on the former wife’s contempt claim. The trial court determined that the alimony provisions in the divorce judgment awarded the former wife periodic alimony and that the former husband’s obligation to pay alimony terminated when the former wife remarried. The former wife filed a Rule 59(e), Ala. R. Civ. P., postjudgment motion to vacate the summary judgment; however, the trial court dismissed the former wife’s postjudgment motion, determining that the summary judgment was not a final judgment because there were other issues that remained pending before the trial court. On January 22, 2009, the trial court entered a judgment disposing of the remaining issues pending in the trial court. The former wife then filed a Rule 59(e) postjudgment motion, requesting that the trial court vacate its summary judgment and its denial of the former wife’s Rule 60(b)(3) motion. On April 9, 2009, the trial court denied the former wife’s post-judgment motion. The former wife subsequently appealed to this court.

“We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing ‘that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.’ Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, ‘the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by “substantial evidence.” ’ Lee, 592 So.2d at 1038 (footnote omitted). ‘[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 Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000); and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala.1991).”

Lambert v. Mazer Discount Home Ctrs., Inc., 33 So.3d 18, 22 (Ala.Civ.App.2009).

As an initial matter, we note that the issues raised by the former wife in relation to the trial court’s denial of her Rule 60(b) motion need not be considered, because the former wife’s appeal from the trial court’s denial of her Rule 60(b) motion is untimely. Although neither party addresses this court’s jurisdiction over this appeal, we may take notice of a lack of jurisdiction ex mero motu. See Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568-69 (Ala.Civ.App.2003), abrogated on other grounds by F.G. v. State Dep’t of Human Res., 988 So.2d 555 (Ala.Civ.App.2007). “The timely filing of a notice of appeal is a jurisdictional act.” Durr v. Durr, 961 So.2d 139, 140 (Ala.Civ.App.2006) (citing Gunnison-Mack v. State Pers. Bd., 923 So.2d 319, 320 (Ala.Civ.App.2005)). The trial court denied the former wife’s Rule 60(b) motion on September 8, 2008, and, on January 22, 2009, it entered a final judgment disposing of all remaining.claims in the case. The former wife then filed a Rule 59(e) motion requesting that the trial court alter, amend, or vacate its denial of her Rule 60(b) motion and its summary judgment in favor of the former husband on the former wife’s contempt claim. However,

“[ajfter a trial court has denied a post-judgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to ‘reconsider’ or otherwise review its order denying the Rule 60(b) motion, and such a successive postjudgment motion does not suspend the running of the time for filing a notice of appeal.”

Ex parte Keith, 771 So.2d 1018, 1022 (Ala.1998). Thus, the former wife’s filing of her Rule 59(e) motion did not suspend the 42-day period for filing a notice of appeal from the trial court’s denial of the former wife’s Rule 60(b) motion. The former wife did not file her notice of appeal until after the expiration of the 42-day appeal period provided under Rule 4(a)(1), Ala. R.App. P. Because the former wife’s appeal of the trial court’s denial of her Rule 60(b) motion is not timely, we dismiss that portion of the former wife’s appeal.

The former wife argues that the former husband’s alimony obligation in the divorce judgment survived her remarriage. Alimony in gross survives the remarriage of the recipient spouse. However, when the parties’ agreement as to alimony has been incorporated into the divorce judgment, periodic alimony terminates on remarriage of the recipient spouse. Ala.Code 1975, § 30-2-55. This is true even in cases in which the parties have expressly stated their intent that the periodic-alimony payments will survive the remarriage of the recipient spouse. See Ex parte Murphy, 886 So.2d 90, 94 (Ala.2003) (holding that, when a divorce agreement is incorporated into the divorce judgment, the trial court must follow the mandates of § 30-2-55).

First, we must determine whether the parties’ settlement agreement, including their agreement as to alimony, was incorporated into the divorce judgment or if their agreement as to alimony was a separate contractual obligation.

In Oliver v. Oliver, 431 So.2d 1271 (Ala.Civ.App.1983), this court held that the husband could terminate his periodic-alimony obligation after the wife’s remarriage in spite of an agreement to the contrary that was incorporated into their divorce judgment. This court held that the agreement had been merged into the divorce judgment and, therefore, that the periodic alimony obligation was terminable upon the wife’s remarriage.

In Harrison v. Harrison, 514 So.2d 1026 (Ala.Civ.App.1986), the parties specified that their agreement to continue the payment of periodic alimony to the wife after her remarriage was to be a contractual obligation and not part of any court order or judgment. Therefore, this court held that, because the husband’s obligation was contractual and not merged into the divorce judgment, it could be enforced without reference to § 30-2-55.

In Ex parte Murphy, supra, the parties reached a modification agreement pursuant to which the husband would continue to pay periodic alimony, albeit at a reduced rate, after the wife’s remarriage. However, that agreement specified that it could be incorporated into a judgment by a court upon petition by either party; the agreement was subsequently incorporated into a judgment modifying the parties’ divorce judgment. Our supreme court held that the agreement did not maintain its contractual nature; the incorporation of that agreement into a modification judgment invoked the powers of the court, and, therefore, § 30-2-55 prevented the wife’s continued receipt of periodic alimony after her remarriage.

In this case, the parties did not expressly agree that the provisions in their settlement agreement would survive any judgment of divorce or that the alimony provisions would retain their separate contractual nature despite the entry of a judgment of divorce, as was stated in Harrison v. Harrison, supra. Thus, this case is distinguishable from Harrison and this case is governed by Oliver v. Oliver, supra, and Ex parte Murphy, supra. As a result, the alimony provisions at issue are subject to § 30-2-55.

Next, we must determine whether the alimony provisions in question provided for an award of periodic alimony or alimony in gross.

“ ‘Our supreme court has explained the difference between periodic alimony and alimony in gross. Alimony in gross is considered “compensation for the [recipient spouse’s] inchoate marital rights [and] ... may also represent a division of the fruits of the marriage where liquidation of a couple’s jointly owned assets is not practicable.” An alimony-in-gross award “must satisfy two requirements, (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested.” It must also be payable out of the present estate of the paying spouse as it exists at the time of the divorce. In other words, alimony in gross is a form of property settlement. An alimony-in-gross award is generally not modifiable.
“ ‘Periodic alimony, on the other hand, “is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [paying spouse].” Its purpose “is to support the former dependent spouse and enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until that spouse is self-supporting or maintaining a lifestyle or status similar to the one enjoyed during the marriage.” Periodic alimony is modifiable based upon changes in the parties’ financial conditions or needs, such as an increase in the need of the recipient spouse, a decrease in the income of the paying spouse, or an increase in the income of the recipient spouse. The paying spouse’s duty to pay periodic alimony may be terminated by petition and proof that the recipient spouse has remarried or is cohabiting with a member of the opposite sex.’ ”

Lambert v. Lambert, 22 So.3d 480, 485 (Ala.Civ.App.2008) (quoting TenEyck v. TenEyck, 885 So.2d 146, 151-52 (Ala.Civ.App.2003) (emphasis omitted)). Additionally, “ ‘[t]he intent to award alimony in gross should be unequivocally expressed or necessarily inferred from the language used.’ ” Trammell v. Trammell, 523 So.2d 437, 439 (Ala.Civ.App.1988) (quoting Banks v. Banks, 336 So.2d 1365, 1367 (Ala.Civ.App.1976)).

In this case, the award in the divorce judgment is clearly denominated “periodic alimony, and not as alimony in gross and not as a property settlement.” The payments are also clearly linked to the former husband’s future earnings, as they are subject to future modification if his earnings decrease. Because the alimony payments are modifiable based on a change in the former husband’s future income, the former wife’s right to alimony was not vested. Thus, the payments cannot be considered alimony in gross. See Boley v. Boley, 589 So.2d 1297, 1299 (Ala.Civ.App.1991)(“To constitute alimony in gross, the time and amount of payment must be certain, and the right to alimony must be nonmodifiable, or vested.” (citing Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974))). The payments are also designated as taxable income to the former wife and tax deductible for the former husband, as is the case with periodic alimony. See generally Kelley v. State Dep’t of Revenue, 796 So.2d 1114 (Ala.Civ.App.2000) (discussing the relative tax treatment of periodic alimony and alimony in gross). The alimony provisions do contain a beginning date and a termination date, however, “[t]he existence of a termination date does not make the award alimony in gross.” Trammell v. Trammell, 523 So.2d at 439 (citing Barran v. Barran, 431 So.2d 1278 (Ala.Civ.App.1983)). Thus, the only reasonable interpretation of the alimony provisions in the divorce judgment is that they contain an award of periodic alimony.

Because the alimony provisions in the parties’ agreement were incorporated into the divorce judgment and because they represent, as a matter of law, an award of periodic alimony, the trial court did not err in entering a summary judgment in favor of the former husband.

The former husband’s request for attorneys’ fees on appeal is denied.

AFFIRMED IN PART; APPEAL DISMISSED IN PART.

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

      . The former wife also sought other relief in her motion, none of which is at issue in this appeal.

      . None of the issues raised in the former husband’s counterclaim are at issue in this appeal.

      . The former- wife's appeal from the trial court’s denial of her Rule 60(b) motion was not timely regardless of whether the period in which to appeal began on September 8, 2008, or January 22, 2009. Therefore, we need not decide whether the time for filing her appeal ran from the trial court's September 8, 2008, denial of the wife’s Rule 60(b) motion or from the entry of its January 22, 2009, judgment.
      "[T]he denial of a Rule 60(b) motion is an appealable order. See, e.g., Ex parte Dowling, 477 So.2d 400, 403-04 (Ala.1985). 'Unless otherwise provided by law, appeals lie only from final orders or judgments. Wolf v. Smith, 414 So.2d 129, 130 (Ala.Civ.App.1982). It follows, then, that the denial of a Rule 60(b) motion, because it is appeal-able, is a final order.” Ex parte King, 821 So.2d 205, 209 (Ala.2001). But see Hoegh v. Burton, 3 So.3d 911, 912-13 (Ala.Civ.App.2008) (holding that the denial of a Rule 60(b) motion was not a final judgment where other matters remained pending before the trial court).

      . Section 30-2-55 provides, in pertinent part:
      "Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.”


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Horace Dale HOGUE et al. v. LOGAN’S ROADHOUSE, INC.
    2090035.
    Court of Civil Appeals of Alabama.
    April 2, 2010.
    Certiorari Denied Nov. 12, 2010 Alabama Supreme Court 1090996.

      E.L. Brobston of Brobston & Brobston, P.C., Bessemer, for appellants.
    Stephen J. Bumgarner, S. Greg Burge, and Edward D. Cotter of Burr & Forman LLP, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Horace Dale Hogue, Hallie Hogue, La-vona Elliott, Teresa Hogue, Lisa Franklin, Ricky Hogue, and Nicole Franklin, by and through her next friend, Lisa Franklin (hereinafter referred to collectively as “the plaintiffs”), appeal from a summary judgment entered by the Tuscaloosa Circuit Court in favor of Logan’s Roadhouse, Inc. (“Logan’s”). For the reasons set forth herein, we affirm the trial court’s judgment.

The record, considered in the light most favorable to the plaintiffs, see Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990), reveals the following pertinent facts. On the evening of January 14, 2006, a group of approximately 20 people, including the plaintiffs, gathered at a restaurant (“the restaurant”) that, apparently, was owned and operated by Logan’s to celebrate the birthdays of Horace Dale Hogue and Diane Brown. As part of the celebration, appetizers were purchased and shared by many in the group. The individuals of the group also ordered entrées from the menu provided by the restaurant and consumed those entrées. During and shortly after the time that the group departed from the restaurant, the plaintiffs and two other individuals who had been present at the celebration began to experience digestive issues, including vomiting and diarrhea. Ultimately, two of the plaintiffs were required to seek medical treatment because of the digestive issues. There is no evidence indicating that the individuals who became ill following the consumption of food at the restaurant all consumed a common food item, although many of those individuals shared the appetizers that were served at the restaurant.

On December 10, 2007, the plaintiffs filed an action against Logan’s. They alleged that Logan’s had “negligently sold and/or cooked and/or prepared and/or delivered the food consumed by the plaintiffs and/or [had] negligently supervised and/or negligently hired the persons responsible for the cooking and/or preparation and/or delivery of the food consumed by the plaintiffs.” They asserted that, as a result of Logan’s alleged negligence, they had suffered physical injuries and damages. The plaintiffs also asserted a claim of wantonness against Logan’s.

On May 18, 2009, Logan’s filed a motion for a summary judgment. It asserted, among other things, that there was no evidence indicating that it had committed a negligent act. Specifically, it argued that the duty it owed the plaintiffs was to exercise reasonable care in its selection and preparation of the food it served the plaintiffs and that the plaintiffs had failed to present any evidence indicating that it had breached that duty. The plaintiffs filed a response to Logan’s summary-judgment motion. In response to Logan’s argument regarding a lack of evidence of a negligent act on its part, the plaintiffs argued, in effect, that they had sufficiently supported their negligence claim by demonstrating that several people had become ill from eating food served by Logan’s. They also asserted that

“[wjhether a food poisoning claim against a restaurant is based on [the] Alabama Extended Manufacturer Liability Doctrine, breach of warranty[,] or negligence, there is no Alabama decision which supports the conclusion that a person is not entitled to recover in a food poisoning case where there is evidence that the Plaintiffs’ illnesses occurred as a result of being served unwholesome food.”

On August 4, 2009, the trial court granted Logan’s motion and entered a summary judgment against the plaintiffs on both the negligence claim and the wantonness claim. The plaintiffs filed a timely notice of appeal to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The standard by which this court reviews a summary judgment is well settled:

“ ‘ “To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12-21-12(d)[,] Ala. Code 1975. 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.’ West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“ ‘ “In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).” ’
“Payton v. Monsanto Co., 801 So.2d 829, 832-33 (Ala.2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999)).”

Maciasz v. Fireman’s Fund Ins. Co., 988 So.2d 991, 994-95 (Ala.2008). We note that the plaintiffs limit their arguments on appeal to their negligence claim; they do not assert that the trial court erred in entering a summary judgment on their wantonness claim. Thus, we do not address the summary judgment as it relates to the plaintiffs’ wantonness claim.

The plaintiffs candidly admit on appeal that they did not present any evidence demonstrating that Logan’s was negligent in the preparation of the food that it served them. They argue, however, that such evidence was unnecessary because, they assert, when several people become sick after consuming food at a restaurant, a jury hearing the claim against the restaurant is permitted to infer that something was wrong with the food the restaurant served from the fact of the illnesses. Relying on Louis Pizitz Dry Goods Co. v. Waldrop, 237 Ala. 208, 186 So. 151 (1939), the plaintiffs appear to argue that a restaurant’s service of food that causes illness, standing alone, constitutes negligence. They also point out the supreme court’s discussion in Flagstar Enterprises, Inc. v. Davis, 709 So.2d 1132 (Ala.1997), relating to the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”) in which the supreme court indicates that a claim under the AEMLD is supported by evidence demonstrating that a product is defective when it does not meet the reasonable expectations of the person to whom the product is sold. They argue that, because the food they purchased and consumed at the restaurant made them ill, it did not meet their reasonable expectations, and, therefore, that it was defective. They ai-gue that the trial court erred “in requiring the plaintiffs to show a negligent act on the part of the defendant other than showing that it served tainted food.”

We turn first to the plaintiffs’ assertion of standards applicable to claims asserted pursuant to the AEMLD. The AEMLD is Alabama’s version of products-liability law. Pursuant to the AEMLD, “ ‘a plaintiff must prove he suffered injury or damages to himself or his property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer.... ’” Ex parte Morrison’s Cafeteria of Montgomery, Inc., 431 So.2d 975, 977 (Ala.1983) (quoting Atkins v. American Motors Corp., 335 So.2d 134, 141 (Ala.1976)). “The term ‘defective’ means that the product fails to meet the reasonable safety expectations of an ‘ordinary consumer,’ that is, an objective ‘ordinary consumer,’ possessed of the ordinary knowledge common to the community.” Deere & Co. v. Grose, 586 So.2d 196, 198 (Ala.1991).

In their complaint, the plaintiffs asserted only two claims against Logan’s: negligence and wantonness. They did not assert a claim against Logan’s arising under the AEMLD. Thus, we find the AEMLD standards inapplicable to the plaintiffs’ claim before this court on appeal.

We turn now to the plaintiffs’ negligence claim. In McCarley v. Wood Drugs, Inc., 228 Ala. 226, 153 So. 446 (1934), our supreme court discussed at length the proper standard applicable to negligence claims arising from a restaurant’s service of food, the consumption of which causes illness:

“Plaintiffs cause proceeded to trial upon counts 1 and 4, which, as a basis for recovery, rest upon the negligence of defendant in failing to exercise a proper degree of care in the selection and preparation of the food served to her in defendant’s place of business. Such degree of care has been here defined as follows: ‘The law requires that, in the selection of the food for his restaurant and in cooking it for his customers, he shall exercise that same degree of care which a reasonably prudent man, skilled in the art of selecting and preparing food for human consumption, would be expected to exercise in the selection and preparation of food for his own private table. ’ Travis v. Louisville & Nashville R.R. Co., 183 Ala. 415, 62 So. 851, 854 [ (1913) ].
“Our decisions have recognized that in some jurisdictions the doctrine of implied warranty applies (26 C.J. p. 786); but this court has not followed in the wake of these authorities, consistently adhering to the rule of liability resting upon the exercise of due care as above defined. Hooper Cafe Co. v. Henderson, 223 Ala. 579, 137 So. 419 [(1931)]; Greenwood Cafe v. Lovinggood, 197 Ala. 34, 72 So. 354 [ (1916) ]; George’s Restaurant v. Dukes, 216 Ala. 239, 113 So. 53 [ (1927) ]; Louisville & N. R.R. Co. v. Travis, 192 Ala. 453, 68 So. 342 [ (1915) ].[]
“Forcibly illustrative in this regard was the holding in Travis v. L. & N. R.R. Co., 183 Ala. 415, 62 So. 851, 853 [ (1913) ], to the effect that defendant’s requested charge 18 was properly given, as follows: ‘The defendant is not liable as an insurer of the oysters served to plaintiff, and therefore is not liable if he was made sick by eating them, unless the jury believe from the evidence that defendant was guilty of negligence.’
“And in Hooper Cafe [v.] Henderson, supra, it was noted that the case of Sheffer v. Willoughby, 163 Ill. 518, 45 N.E. 253, 34 L.R.A. 464, 54 Am. St. Rep. 483 [ (1896) ], cited approvingly in Travis v. L. & N. R.R. Co., supra, held, in effect, that proof that plaintiff ate the food, and in consequence became sick, did not make out a prima facie case of negligence, nor shift the burden to defendant, and, this holding was approved, with the concluding observation, that negligence or breach of duty is not to be presumed.”

228 Ala. at 227, 153 So. at 446-47 (emphasis added). Thus, according to McCarley, evidence that a restaurant served food, the consumption of which caused the plaintiff illness, does not, on its own, give rise to an inference or a presumption that the restaurant was negligent in its preparation of the plaintiffs food. Instead, there must be evidence from which a jury could at least infer that the restaurant failed to act with due care in the preparation of the plaintiffs food.

In McCarley, the supreme court held that evidence of negligence was lacking, despite the fact that the jury was free to infer that the plaintiff had been made ill as a result of consuming food that the defendant restaurant had prepared and served. The court wrote:

“The evidence is not voluminous and has been duly considered by the court in consultation, and we find it was sufficient from which the jury might reasonably infer plaintiffs sickness was in some manner produced by the food served her in her purchased lunch. But this alone will not suffice for the submission of plaintiffs case to the jury. There must be some fact or circumstance from which a reasonable inference may also be drawn that defendant failed in the proper degree of care in the selection or preparation thereof.
“Of course, as insisted by counsel for plaintiff, negligence may be inferred from circumstances (Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257 [ (1920) ]), and direct acts need not be shown, but proof must nevertheless be adduced from which a reasonable inference of negligence may be drawn....
“In the instant case there was no proof of peculiar or unpleasant odor or taste as to the food consumed, nor anything to indicate that it was in any manner improper for human consumption. Plaintiff rests her case upon proof tending to show sickness in consequence of the food consumed. But, as previously stated, this will not suffice for submission of the matter of defendant’s negligence for the jury’s determination.”

228 Ala. at 227-28,153 So. at 447.

Other cases from both the supreme court and the former Alabama Court of Appeals provide further support for the principles set forth in McCarley. For example, in C.C. Hooper Cafe Co. v. Henderson, 223 Ala. 579, 137 So. 419 (1931), our supreme court held that a jury question was presented on a negligence claim arising from a restaurant patron’s consumption of fish prepared and served by the restaurant. The evidence in that case demonstrated that the fish served to the patron did not taste right, had an unpleasant odor, and was discolored. The patron consumed three bites of the fish and shortly thereafter became ill. The court wrote that “[tjhere is evidence that spoiled fish may be readily detected by the senses of sight, touch, and smell,” and it concluded that the plaintiffs evidence established a question of negligence on the part of the defendant restaurant that was subject to resolution by a jury. 223 Ala. at 581,137 So. at 421.

In Pantaze v. West, 7 Ala.App. 599, 61 So. 42 (1913), the plaintiff became ill after eating scrambled eggs and brains. In support of his claim, the plaintiff put on evidence indicating that the brains he had consumed were “tainted,” that the tainted brains were the likely cause of his illness, that the fact that the brains were tainted was easily detectable at the time they were cooked, and that, had the brains been cooked properly, the bacteria causing the taint in the brains would have been destroyed or rendered harmless. The court of appeals concluded that the trial court had properly submitted the question of the defendant restaurant’s negligence to the jury because

“[t]he inferences that might easily and reasonably be drawn from this evidence ... are that, if the plaintiff was made sick from eating tainted brains, the defendant or his servants, for whose acts the defendant is liable, were negligent either in not using due care in properly cooking the brains or in failing to discover that they were tainted or in an unfit and dangerous condition to cook and serve to patrons for consumption; for it was established by the testimony that the taint was easily and readily detected by any one giving ordinary attention to the matter, and a want or failure to observe this duty and exercise due care in this regard would constitute that negligence for which the defendant would be held liable.”

7 Ala.App. at 606-07, 61 So. at 44 (emphasis added).

Finally, in Great Atlantic & Pacific Tea Co. v. Meeks, 34 Ala.App. 241, 38 So.2d 891 (1949), the former Alabama Court of Appeals considered whether a plaintiffs discovery of maggots in cooked fish he was in the process of consuming sufficiently demonstrated a case of negligence on the part of the seller of the fish. Discussing and resolving the question whether the case was properly submitted to the jury on the issue of negligence, the appellate court wrote:

“In this aspect it is particularly urged that there are no facts or circumstances from which a reasonable inference might be drawn that said agents, etc., even by the exercise of the required degree of care, could have discovered that the purchased fish was infected with maggots. To sustain this position much emphasis is placed on the holding in McCarley v. Wood Drugs, Inc., [228 Ala. 226, 153 So. 446 (1934) ].
“It is clear that the facts there disclosed place the case upon an entirely different factual basis from the case at bar. It appears in the former case that plaintiff sought recovery primarily upon proof that she was made sick in consequence of the consumption of the food.
“In the case at bar, if the jury concluded that maggots were in fact in the fish when it was purchased by appellant’s parents, this would have authorized a fair inference that such condition was incident to lack of due care in the matter of protecting the food from access to flies. The jury from their experience and common knowledge could have found that conditions of this kind do not happen except in consequence and as a result of negligence.”

34 Ala.App. at 244, 38 So.2d at 893 (emphasis added).

In the present case, the plaintiffs have presented evidence demonstrating that they ate at the restaurant and became ill. A jury would be justified in inferring that the cause of their illness was the food they had consumed at the restaurant. However, as stated above, the fact of illness, standing alone, is insufficient to demonstrate negligence on the part of Logan’s. To demonstrate negligence, the plaintiffs were required to have submitted evidence from which a jury could infer a negligent act or failure to act by Logan’s. This they failed to do. For example, unlike in the above-discussed cases, they did not put on evidence indicating that the food was tainted in such a way that the taint could have been discovered by the individuals preparing the food or would have been removed by proper cooking, they did not offer evidence indicating that the food they consumed had a bad taste, odor, or color that could have put the preparer of the food on notice that the food was spoiled, and they did not offer evidence indicating that the food served to them had been exposed to agents that would cause the food to have become tainted. Thus, the plaintiffs failed to adequately support their negligence claim in the face of Logan’s summary-judgment motion.

We recognize the plaintiffs’ reliance on the supreme court’s decision in Louis Piz-itz Dry Goods Co. v. Waldrop, 237 Ala. 208, 186 So. 151 (1939), in which the supreme court appeared to adopt a res ipsa loquitur approach to questions of negligence arising from illnesses caused by the consumption of food prepared by a restaurant. Close inspection of the relevant facts in that case, however, demonstrate that Waldrop is distinguishable from the present case. In Waldrop, seven patrons became ill after consuming food at a restaurant. The evidence indicated that every one of the patrons had consumed mayonnaise as a part of their meals and that the restaurant itself apparently had made the mayonnaise. Conflicting evidence was adduced at trial regarding the quality of the eggs the restaurant used in making its mayonnaise. The supreme court concluded that the evidence at trial sufficiently supported the jury’s verdict in the plaintiffs favor.

Unlike the plaintiff in Waldrop, the plaintiffs in the present case have adduced no evidence indicating that they were made ill by a single food that every one of them consumed. Likewise, they have put on no evidence indicating that whatever food they did consume that made them sick was “prepared” by Logan’s rather than simply passed on to the plaintiffs in virtually the same condition in which Logan’s received it from its manufacturer. Simply put, without knowing what food made the plaintiffs sick or whether and to what extent Logan’s was involved in its preparation, we cannot rely on the supreme court’s holding in Waldrop to conclude that the plaintiffs’ illnesses, standing alone, constitute substantial evidence indicating that Logan’s was negligent in its preparation and service of the food the plaintiffs consumed.

We also note certain language in Flags-tar Enteiyrises, Inc. v. Davis, supra, that appears to adopt a standard of negligence in a restaurant’s preparation and service of food akin to the doctrine of res ipsa loqui-tur. Specifically, in that case, the supreme court indicated that “[i]t cannot be seriously disputed that the restaurant owed a duty to Davis to exercise reasonable care in the preparation and packaging of her food, i.e., that it had, a duty to sell her merchantable food or food that was not unreasonably dangerous.” 709 So.2d at 1139 (emphasis added). However, after stating that standard, the supreme court discussed the plaintiffs negligence claim in terms of the evidence of actual negligent acts by an employee of the defendant restaurant that breached the standard of care the defendant restaurant owed the plaintiff (i.e., bleeding by the employee from an open sore into the plaintiffs food and failing to recognize that she had done so before packaging the plaintiffs food despite the fact that the blood was obvious in the food). Importantly, the supreme court did not hold that the plaintiff had satisfied her burden of proof simply by showing that the defendant restaurant had served her food that was unmerchantable or unreasonably dangerous. Id. at 1139^11. Indeed, the supreme court quoted at length from its McCarley decision when it discussed the plaintiffs negligence claim, and it specifically rejected the application of the doctrine of res ipsa loquitur in the resolution of the plaintiffs negligence claim against the defendant restaurant. Id. at 1140 n. 4 (“We note that our holding in this respect is not based on the doctrine of res ipsa loquitur”).

Based on the foregoing, we conclude that the plaintiffs failed to produce evidence indicating that Logan’s breached a duty that it owed to them. As a result, the trial court correctly entered a summary judgment in Logan’s favor on the plaintiffs’ negligence claim, and we affirm that summary judgment.

AFFIRMED.

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

      . The plaintiffs also asserted claims against numerous fictitiously named defendants, but they never subsequently substituted actual parties for those fictitiously named defendants.

      . Section 7-2-314(1), Ala.Code 1975, part of Alabama's version of the Uniform Commercial Code, provides:
      "Unless excluded or modified (Section 7-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.”

        McCarley was decided well before Alabama's adoption of the Uniform Commercial Code. Regardless, as previously noted, the plaintiffs did not assert a claim against Logan's for breach of the implied warranty of merchantability provided by § 7-2-314(1).


author: PER CURIAM.

text:
    Dennis GUYTON v. Scott HUNT.
    2090063.
    Court of Civil Appeals of Alabama.
    July 23, 2010.
    Rehearing Denied Sept. 17, 2010.
    Certiorari Denied Nov. 12, 2010 Alabama Supreme Court 1091794.

      Dennis Guyton, pro se.
    James G. Adams, Jr., and Heather N. Hudson of Eyster, Key, Tubb, Roth, Middleton & Adams, LLP, Decatur, for appel-lee.
   On Application for Rehearing

PER CURIAM.

The opinion of April 9, 2010, is withdrawn, and the following is substituted therefor.

This is a legal-malpractice case. Dennis Guyton, ■ an inmate in the custody of the Alabama Department of Corrections, appeals from the summary judgment entered in favor of one of his attorneys, Scott Hunt. Guyton initially appealed this case to the Alabama Supreme Court, which transferred the case to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The record indicates the following. Guyton was convicted of sodomy and sexual abuse of a child younger than 12 years old. Guyton alleged that, after his conviction, Hunt was retained to prepare and file a motion for a new trial in the criminal action. If the motion for a new trial was denied, Guyton said, then Hunt was to handle the direct appeal. Hunt filed the motion for a new trial. However, Guyton alleges, Hunt committed legal malpractice when he failed to notify Guyton or any member of his family that that motion had been denied. Guyton contends that a family member learned of the denial of the motion from another attorney not connected with his case. Guyton appears to argue that the delay in learning that the motion had been denied delayed his filing a notice of appeal. He also appears to argue that he had to pay another attorney to handle his direct appeal even though Hunt had already been paid to do so.

Hunt filed a motion for a summary judgment. In support of his motion, Hunt attached an affidavit in which he stated that he had been practicing law since 1997. He said that he had reviewed his records in this case and that, in his opinion, he had exercised “a reasonable degree of care, skill, and diligence that is normally exercised under the same or similar circumstances by other licensed attorneys.” Accordingly, he opined, he had not breached the applicable standard of care required of him in Guyton’s criminal case.

After receiving Hunt’s properly supported motion for a summary judgment, the trial court entered an order requiring Guyton to file a response by April 1, 2009, including affidavits of any expert in support of Guyton’s allegations that Hunt had not met the appropriate standard of care. Guyton, however, did not provide an affidavit from an expert qualified to address the issue whether Hunt had breached the standard of care owed to Guyton in the criminal case. On August 18, 2009, the trial court entered a summary judgment in favor of Hunt. In the judgment, the trial court stated that, based upon the submissions of the parties, it found that Guyton had failed to present substantial evidence of damages and that he also had failed to provide any competent evidence to contradict Hunt’s affidavit that he had not breached the standard of care. Therefore, the trial court explained, Guyton had failed to meet his burden of demonstrating that Hunt had breached the applicable standard of care. The trial court also noted that, despite the alleged delay, Guyton had not been deprived of a direct appeal. Guy-ton appeals.

“We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002).
“ We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the non-movant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing á summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’ “Nationwide Prop. & Cas. Ins. Co. [v. DPF Architects, P.C.], 792 So.2d [369] at 372 [(Ala.2001)] (citations omitted), quoted in American Liberty Ins. Co., 825 So.2d at 790.”

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

Guyton, who is acting pro se on appeal, states that in his complaint, in addition to his legal-malpractice claim, he alleged a claim of fraud against Hunt, which was based on Hunt’s failure to tell him that the postjudgment motion had been denied, even when Hunt was asked about the status of the motion. Guyton appears to argue that, as to his fraud claim, he was not required to present evidence regarding the breach of the applicable standard of care and, therefore, that the trial court improperly entered the summary judgment as to the fraud claim.

The Alabama Legal Services Liability Act (“ALSLA”), §§ 6-5-571 et seq., Ala. Code 1975, provides that “there shall be only one form and cause of action against legal service providers in courts in the State of Alabama and it shall be known as the legal service liability action and shall have the meaning as defined herein.” § 6-5-573, Ala.Code 1975. The ALSLA defines a “legal service liability action” as follows:

“(1) Legal service liability action. Any action against a legal service provider in which it is alleged that some injury or damage was caused in whole or in part by the legal service provider’s violation of the standard of care applicable to a legal service provider. A legal service liability action embraces all claims for injuries or damages or wrongful death whether in contract or in tort and whether based on an intentional or unintentional act or omission. A legal services liability action embraces any form of action in which a litigant may seek legal redress for a wrong or an injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Alabama now or in the future.”

§ 6-5-572(1), Ala.Code 1975.

Accordingly, Guyton’s fraud claim was subsumed by the legal-malpractice claim. Therefore, to the extent that Guyton argues that the summary judgment was improper as to the fraud claim, his argument is without merit.

Guyton argues that Hunt’s failure to timely notify him or his family members that the trial court in the criminal case had denied his postjudgment motion was such a blatant error that Guyton did not need expert testimony to demonstrate that Hunt’s conduct breached the applicable standard of care.

The ALSLA defines the applicable standard of care as follows:

“(3) Standard of care.
“a. The standard of care applicable to a legal service provider is that level of such reasonable care, skill, and diligence as other similarly situated legal service providers in the same general line of practice in the same general locality ordinarily have and exercise in a like case.”

§ 6-5-572(3)a., Ala.Code 1975.

Generally, a plaintiff alleging a legal-malpractice claim must prove that claim through expert testimony. Ton-smeire v. AmSouth Bank, 659 So.2d 601, 605 (Ala.1995); see also § 6-5-580, Ala. Code 1975. However, in Valentine v. Watters, 896 So.2d 385 (Ala.2004), our supreme court recognized the “common knowledge” exception to that general rule.

“In Valentine, [the Alabama Supreme] Court held that the ALSLA applied to Linnie Valentine’s legal-malpractice claims against Richard Watters. 896 So.2d at 390-91.... Valentine had consulted Watters about representing her in litigation regarding defective breast implants, and one of her claims was that Watters had misrepresented to her that ‘he was very familiar with litigation regarding breast implants and that he had represented several clients in breast-implant litigation.’ 896 So.2d at 386.
“In response to the contention that she had failed to offer expert testimony in support of her claim, Valentine argued
“ ‘that her case is analogous to medical-malpractice suits and that the exception applied in those cases to the requirement of expert testimony should also apply to legal-malpractice cases. See Ex parte HealthSouth Corp., 851 So.2d 33, 38 (Ala.2002) (stating that expert testimony is not required in a case “ ‘ “where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and expertise to understand it.” ’ ” (quoting Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156, 161 (Ala.1984))).’
896 So.2d at 391. [The supreme c]ourt agreed with Valentine.
“[The supreme c]ourt noted that the statutory scheme for establishing a legal-malpractice claim is similar to the requirements imposed by the Alabama Medical Liability Act of 1987, §§ 6-5-540 to 6-5-552, Ala.Code 1975 (‘the AMLA’), for medical-malpractice claims and that even though neither the ALS-LA nor the AMLA includes an express requirement that a plaintiff offer expert testimony in support of his or her claim, generally expert testimony is required. [The supreme c]ourt thoroughly examined the exception to the expert-testimony requirement in medical-malpractice actions 1 “where the want of skill or lack of care is so apparent as to be within the comprehension of the average layman and thus requires only common knowledge and experience to understand it.” ’ 896 So.2d at 392 (quoting Rosemont, Inc. v. Marshall, 481 So.2d 1126, 1129-BO (Ala.1985)). [The supreme c]ourt stated:
“ ‘Many other jurisdictions recognize a “common knowledge” exception to the requirement that a plaintiff in a legal-malpractice case must present expert testimony. McIntyre v. Rumsey, 80 P.3d 1201 (Kan.Ct.App.2003) (unpublished opinion) (stating that expert testimony is not necessary where the attorney’s breach of duty is so clear and obvious that the determination that the attorney deviated from the standard of care is within the common knowledge of the trier of fact); Dubreuil v. Witt, 80 Conn.App. 410, 418, 835 A.2d 477, 483 (2003) (stating that the exception to the need for expert testimony applies when “the defendant’s conduct was such an obvious and gross want of care and skill that the neglect would be clear to the average layperson”); Roberts v. Hutton, 152 Ohio App.3d 412, 423, 787 N.E.2d 1267, 1276 (2003) (“The only exception to this [expert-testimony] requirement is when the alleged breach of care is so obvious that it can be determined from the ordinary knowledge and experience of laymen.”); Mazuca & Assocs. v. Schumann, 82 S.W.3d 90, 97 (Tex.Ct.App.2002) (“Expert testimony is not required if the attorney’s lack of care and skill is so obvious that the trier of fact can find negligence as a matter of common knowledge.”); Hall v. Fedor, 349 S.C. 169, 561 S.E.2d 654 (S.C.Ct.App.2002) (noting that expert testimony is normally required to establish the applicable standard of care except when the matter is within the common knowledge of laypersons).
“ ‘Watters argues, and we agree, that expert testimony is generally required in a legal-malpractice case because a jury that is unfamiliar with the principles of law governing the underlying case might be incapable of discerning whether a lawyer’s professional conduct falls outside an acceptable standard of care. Generally, an expert may testify when “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Ala. R. Evid. 702. However, “Alabama historically .and generally has refused expert testimony or opinion on a subject that is within the understanding of the average layperson.” Ala. R. Evid. 702, Advisory Committee’s Notes.
“ “We are persuaded by our earlier analyses under the medieal-services-liability cases and by other courts’ application of that same kind of analysis to legal-services-liability cases that an exception to the general requirement that a plaintiff present expert testimony in support of a legal-malpractice claim occurs where a legal-service provider’s want of skill or lack of care is so apparent as to be understood by a layperson and requires only common knowledge and experience to understand it....
“ ‘... Accepting Valentine’s claim that Watters told her that he had represented prior clients in litigation involving breast implants and that he later admitted he had not, we conclude that Valentine is not required to present expert testimony to support her claim that Watters breached the applicable standard of care in misrepresenting his qualifications to her in this manner. We hold that a trier of fact with common knowledge and experience could determine that an attorney’s representation that he or she has had experience in a certain type of litigation, when that representation is not true, violates the standard of care.’
896 So.2d at 393-95.”

Wachovia Bank, N.A. v. Jones, Morrison & Womack, P.C., 42 So.3d 667, 679-81 (Ala.2009) (footnote omitted).

In this case, we agree with Guy-ton that an attorney’s failure to notify a client of a ruling on a motion in time for the client to timely file an appeal constitutes a breach of the standard of care that is so apparent that expert testimony is not required for a layperson to understand that breach. However, our inquiry does not end with a finding that expert testimony was not required in this case.

“To prevail in a legal-malpractice action, the plaintiff must prove that, but for the attorney’s negligence, the legal matter concerning which the attorney is alleged to have been negligent would have been resolved more favorably to the plaintiff. Pickard v. Turner, 592 So.2d 1016, 1019 (Ala.1992). To meet this burden, the plaintiff must prove (1) that, in the absence of the alleged malpractice, the plaintiff would have been entitled to a more favorable result in the legal matter concerning which the attorney is alleged to have been negligent, and (2) that the attorney’s negligence in fact caused the outcome of the legal matter to be less favorable to the plaintiff than the outcome would have been in the absence of the alleged malpractice. Pickard, 592 So.2d at 1020 (‘ “Generally, actionable [legal] malpractice cannot be established in the absence of a showing that the attorney’s wrongful conduct has deprived the client of something to which he would otherwise have been entitled.” [7A C.J.S. Attorney and Client § 255 at 462 (1980).] A lawyer cannot be expected to achieve impossible results for a client.’); Hall v. Thomas, 456 So.2d 67, 68 (Ala.1984) (‘A claim for malpractice requires a showing that in the absence of the alleged negligence the outcome of the case would have been different.’ (citing Mylar v. Wilkinson, 435 So.2d 1237 (Ala.1983))).”

Bonner v. Lyons, Pipes & Coolc, P.C., 26 So.3d 1115, 1120 (Ala.2009); see also Independent Stave Co. v. Bell, Richardson & Sparkman, P.A., 678 So.2d 770, 772 (Ala.1996) (In a legal-malpractice case, the plaintiff must offer proof that, but for the defendant attorney’s negligence, the outcome of the underlying case would have been different.).

In this case, as the trial court pointed out in its judgment, the record indicated that Guyton did appeal from the conviction, and the Court of Criminal Appeals affirmed the conviction, without an opinion, on December 14, 2007. See Guyton v. State, 19 So.3d 260 (Ala.Crim.App.2007) (table). Any delay, if indeed there was a delay, in filing Guyton’s notice of appeal that may have been caused by Hunt’s failure to “timely” notify Guyton of the denial of his postjudgment motion obviously did not preclude Guyton from timely filing his notice of appeal or prevent the Court of Criminal Appeals from considering his appeal. Guyton has not demonstrated that Hunt’s delay, if any, caused Guyton harm. Furthermore, we conclude that based upon the record before us, Guy-ton failed to demonstrate that the outcome of his criminal case, i.e., his conviction and sentence, would have been any different had Hunt notified him of the denial of his postjudgment motion.

Guyton also argues that, contrary to the trial court’s finding, he incurred damages because he had to hire another lawyer to represent him on appeal. From affidavits that Guyton submitted in opposition to Hunt’s motion for a summary judgment, it appears that Guyton’s brother Richard paid Hunt $2,500 not only to file a motion for a new trial upon entry of a judgment after a verdict was reached in the underlying criminal case, but also to file a notice of appeal and to prepare an appellate brief, if necessary. In his affidavit, Richard states that, after he learned that Hunt had failed to tell Guyton or him that the motion for a new trial in the underlying criminal matter had been denied, he fired Hunt. Richard then paid a second attorney $5,000 to represent Guyton on appeal. Richard also stated that, although he did not ask for a return of any of the $2,500 he had paid Hunt, Hunt wrote him a check for $1,700 after Richard “fired” him.

To the extent that Guyton claims he was damaged because he was required to hire another attorney to represent him on appeal, the evidence is undisputed that his brother Richard hired and paid both Hunt and the second attorney to represent Guy-ton after Guyton’s conviction. There is no evidence in the record indicating that Guy-ton himself contributed to those payments. Because Guyton did not pay any portion of the attorneys’ fees in the underlying criminal action, he cannot claim he was damaged as a result of any allegedly unnecessary payments incurred because of Hunt’s conduct.

“ ‘As a general rule, “a litigant may not claim standing to assert the rights of a third party.” Jersey Shore Medical Center-Fitkin Hosp. v. Estate of Baum, 84 N.J. 137, 417 A.2d 1003 (1980). A party lacks standing to invoke the power of the court in his behalf in the absence of “a concrete stake in the outcome of the court’s decision.” Brown Mechanical Contractors, Inc. v. Centennial Ins. Co., 431 So.2d 932, 937 (Ala.1983).’
“Ex parte Izundu, 568 So.2d 771, 772-73 (Ala.1990).”

Miller v. Thompson, 844 So.2d 1229, 1232 (Ala.Civ.App.2002).

The trial court correctly found that Guy-ton had failed to prove that he was in any way damaged by any alleged misconduct on the part of Hunt. Accordingly, for the reasons set forth above, the trial court’s summary judgment in Hunt’s favor is affirmed.

APPLICATION OVERRULED; OPINION OF APRIL 9, 2010, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

All the judges concur.

      . The trial court also noted that Guyton filed a legal-malpractice action against his trial counsel in the criminal case. That civil action was dismissed on January 13, 2009, and on May 27, 2009, this court dismissed the appeal, without an opinion, for lack of prosecution. See Guyton v. Davis, 51 So.3d 1133 (Ala.Civ.App.2009) (table).


author: MOORE, Judge.

text:
    Michael Chad McDANIEL v. HELMERICH & PAYNE INTERNATIONAL DRILLING COMPANY.
    2081120.
    Court of Civil Appeals of Alabama.
    July 30, 2010.
    Rehearing Denied Nov. 5, 2010.

      Desmond V. Tobias, Mobile, for appellant.
    Reggie Copeland, Jr., and Nicholas F. Morisani of Adams and Reese LLP, Mobile, for appellee.
   MOORE, Judge.

Michael Chad McDaniel (“the employee”) appeals from a summary judgment entered by the Mobile Circuit Court (“the trial court”) in favor of Helmerich & Payne International Drilling Company (“the employer”) on his workers’ compensation claim. We reverse the summary judgment and remand the case for further proceedings.

The employee sustained personal injuries as the result of a motor-vehicle accident occurring on a Mobile County road on January 10, 2008, at approximately 5:50 a.m. The trial court entered a summary judgment in favor of the employer on the ground that the employer had proven that there was no genuine dispute that the employee’s accident did not arise out of and in the course of the employee’s employment with the employer. Specifically, the trial court determined that the evidence presented by the parties in support of and in opposition to the employer’s motion for a summary judgment established, without dispute, that the motor-vehicle accident occurred while the employee was traveling on his way to a worksite before the workday had commenced. Under the “going and coming rule,” accidents occurring while a worker is traveling on a public road while going to or coming from work generally fall outside the course of the employment. See Turner v. Drummond Co., 349 So.2d 598, 603 (Ala.Civ.App.1977). The trial court further found that the employee had failed to present substantial evidence in support of his argument that one or more of the exceptions to the going and coming rule applied. See Barnett v. Britling Cafeteria Co., 225 Ala. 462, 143 So. 813 (1932) (holding that employee injured while in “zone of danger” created by employment would be considered in the course of the employment while coming to work); Young v. Mutual Sav. Life Ins. Co., 541 So.2d 24 (Ala.Civ.App.1989) (treating a traveling employee as within the course of the employment at all times while in his or her prescribed territory, except when engaged in a purely personal errand); and Partin v. Alabama Power Co., 615 So.2d 616 (Ala.Civ.App.1992) (holding that on-call employee enters the course of the employment when responding to a specific request by employer to report for duty). On appeal, the employee maintains that the trial court erred as to both conclusions.

The evidence filed in support of the employer’s motion for a summary judgment indicated that, on January 9, 2008, the employee, who resided in Louisiana, traveled to Mobile County to assist in “rigging down” an oil rig located in Creóla that was to be later reassembled for a project in Chunchula. After the end of the workday, the employee retired to a bunk in a crew trailer owned and maintained by the employer, which the employer had provided as an accommodation to its workers and which had been moved from the Creóla worksite to the new Chunchula worksite on January 9, 2008. The employee awoke the next morning, left the crew trailer, got into his personal vehicle, and began traveling to report to the Creóla worksite, where he was scheduled to begin work later that morning. The accident occurred during that journey.

The countervailing evidence presented by the employee indicated that he had been assigned a bunk in the crew trailer as part of the employer’s ordinary requirement that workers use the crew trailers when working on site and that the employer usually positioned those trailers on the site where the workers were scheduled to work the next day so that the workers could start working almost immediately upon leaving the trailers. On the morning of January 10, 2008, a supervisor awakened the employee at 5:00 a.m. and ordered him to report to a mandatory safety meeting, which took place in a supervisor’s trailer on the Chunchula worksite not long thereafter. The employer paid additional compensation to its workers to attend all safety meetings, which usually lasted about 15 or 20 minutes at the start of each workday, so the employee maintained that his workday had begun upon the commencement of that meeting. During that meeting, the employee was advised to use precaution when traveling to the Creóla worksite. The record indicates that it was a rainy and foggy morning and that the route from the Chunchula worksite to the Creóla worksite took the employee across an unmarked dirt road. The employee’s vehicle slid when he attempted to stop at a stop sign while traveling to the Creóla worksite in his personal vehicle, resulting in the employee’s vehicle colliding with an oncoming tractor-trailer.

The evidence reveals a dispute between the parties regarding whether the employee was required to stay in the crew trailer on the night of January 9, 2008, and whether his workday began with a safety meeting conducted at the Chunchula work-site and continued throughout the trip from the Chunchula worksite to the Creóla worksite. If so, the employee would not have been “going” to work when he departed the Chunchula worksite but, based on our caselaw, would have already started working so that his trip and any hazards of injury confronted during that trip would arise out of and in the course of the employment.

In order to be compensable, injuries from a motor-vehicle accident occurring on a public road must arise out of and in the course of the employment. See Kewish v. Alabama Home Builders Self Insurers Fund, 664 So.2d 917, 922 (Ala.Civ.App.1995). An employee injured while traveling on a public roadway on his or her way to work ordinarily is not entitled to compensation because the accident does not arise out of and in the course of the employment. See Hughes v. Decatur Gen. Hosp., 514 So.2d 985 (Ala.1987). However, if the injury results from an accident during the workday as part of a journey not only contemplated, but required, by the employer, any accident occurring during that journey is considered to have arisen out of and in the course of the employment unless the worker has deviated from his or her work activity in pursuit of a purely personal mission. See Havelin v. Poole Truck Lines, Inc., 395 So.2d 75 (Ala.Civ.App.1980).

“Our standard of review of summary judgments is settled:

“‘A motion for summary judgment tests the sufficiency of the evidence. Such a motion is to be granted when the trial court determines that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The moving party bears the burden of negating the existence of a genuine issue of material fact. Furthermore, when a motion for summary judgment is made and supported as provided in Rule 56, [Ala. R. Civ. P.,] the nonmov-ant may not rest upon mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial.
Proof by substantial evidence is required.’
“Sizemore v. Owner-Operator Indep. Drivers Ass’n, Inc., 671 So.2d 674, 675 (Ala.Civ.App.1995) (citations omitted). Moreover, in determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant. Long v. Jefferson County, 623 So.2d 1130, 1132 (Ala.1993). No presumption of correctness attaches to a summary judgment, and our review is de novo. Hipps v. Lauderdale County Bd. of Educ., 631 So.2d 1023, 1025 (Ala.Civ.App.1993) (citing Gossett v. Twin County Cable T.V., Inc., 594 So.2d 635 (Ala.1992)).”

Stough v. B & B Pallet Repair, Inc., 778 So.2d 193, 196 (Ala.Civ.App.2000).

In this case, when viewed in a light most favorable to the employee, substantial evidence supports at least one of the theories advanced by the employee that he was not injured while going to work but that he was already within the course of the employment when the accident occurred. That evidence creates a genuine issue of material fact, which makes summary judgment inappropriate. See Meeks v. Thompson Tractor Co., 686 So.2d 1213 (Ala.Civ.App.1996); Tucker v. Die-Matic Tool Co., 652 So.2d 263 (Ala.Civ.App.1994); and Walker v. White Agencies, Inc., 641 So.2d 795 (Ala.Civ.App.1993). We therefore reverse the judgment of the trial court, and we remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The employee also asserted in a motion to set aside the summary judgment entered by the trial court that several other exceptions to the going and coming rule applied, including the dual-purpose doctrine, see Kewish v. Alabama Home Builders Self Insurers Fund, 664 So.2d 917 (Ala.Civ.App.1995), the special-errand rule, see Winn-Dixie Stores, Inc. v. Smallwood, 516 So.2d 716 (Ala.Civ.App.1987), and the jobsite-to-jobsite exception, see Moncus v. Billingsley Logging & American Ins. Co., 366 Ark. 383, 235 S.W.3d 877 (2006). The employer maintains that this court should not consider the applicability of those exceptions because the employee did not raise any argument as to their applicability before the entry of the summary judgment. See Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000) (citing Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992)) ("[An] appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment.”). Based on our disposition of the appeal, we pretermit any decision on that issue.

      . The employer presented affidavit testimony from several workers indicating that no safety meeting took place at the Chunchula worksite the morning of January 10, 2008. However, in addition to his testimony, the employee introduced the employer's billing records, which, when viewed in a light most favorable to the employee, admit that work was performed at the Chunchula worksite on January 10, 2008, permitting the inference that the safety meeting did take place there.

      . In holding that the employee has presented substantial evidence to support at least one theory that his injuries are compensable, we do not intend to limit in any manner the employee from proving at trial any other theory that would support a finding that his accident and injuries arose out of and in the course of the employment.

      . Because we are reversing the trial court's judgment on the ground that a genuine issue of material fact remains as to whether the employee's accident occurred while he was in the course of his employment, we pretermit discussion as to whether the summary judgment was also inappropriate in light of the evidence presented to the trial court supporting one or more exceptions to the going and coming rule.


text:
    W.G. YATES & SONS, INC. v. Henry BURKHARDT.
    2090407.
    Court of Civil Appeals of Alabama.
    Sept. 10, 2010.

      Edward G. Bowron and John P. Browning of Burr & Forman LLP, Mobile, for appellant.
    Peter F. Burns, Peter S. Mackey, and Clay T. Rossi of Burns, Cunningham & Mackey, P.C., Mobile, for appellee.
   MOORE, Judge.

W.G. Yates & Sons, Inc. (‘Tates”), appeals from the Mobile Circuit Court’s judgment entered on a jury verdict in favor of Henry Burkhardt on his premises-liability claim against Yates. We reverse.

Procedural History

On or about August 9, 2006, Burkhardt filed a complaint alleging several claims against Yates, the general contractor in charge of the construction of the “Caribe III” condominium, and Burkhardt’s employer, Yarco, a subcontractor for Yates. On July 20, 2007, Burkhardt filed his first amendment to the complaint, alleging that, as a result of Yates’s negligence and wantonness, he had been injured on a buck hoist on the premises of Caribe III and had suffered damages. Yates answered the first amended complaint on or about August 15, 2007.

After several proceedings not relevant to this appeal, the trial court held a trial on August 10, 11, 12, and 13, 2009. At the conclusion of the evidence, Yates moved for a judgment as a matter of law on all claims. The trial court granted that motion with regard to the wantonness claims, but it denied the motion with regard to the claims asserted against Yates based on negligence. The trial court specifically instructed the jury on two separate theories of negligence against Yates: (1) a theory of premises liability and (2) a theory that Yates had negligently maintained, inspected, operated, and/or tested the buck hoist. The jury returned a verdict in favor of Burkhardt and against Yates only on the claim based on the theory of premises liability. On August 13, 2009, the trial court entered a judgment on the jury’s verdict. On September 9, 2009, Yates filed a motion to alter, amend, or vacate the judgment requesting that the trial court enter a judgment “notwithstanding the jury[’s] verdict”; that motion was denied on September 26, 2009. Yates filed its notice of appeal that same day.

Standard of Review
“When reviewing a ruling on a motion for a JML [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Regarding questions of fact, the ultimate question is whether the non-movant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling.”

Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003) (citations omitted).

Discussion

On appeal, Yates first argues that the trial court erred in not entering a judgment as a matter of law in its favor on the negligence claim based on a premises-liability theory because, it says, the alleged defective condition of the buck hoist was open and obvious.

“Breeden v. Hardy Corp., 562 So.2d 159 (Ala.1990), states the general duty a general contractor owes a subcontractor on a job site:
“ ‘ “As invitor, ... the general contractor, was under a duty to have the premises free from danger, or if they were dangerous, to give its invitee ... [the subcontractor], 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.
“ ‘ “A general contractor is not responsible to a subcontractor for injury from defects or dangers which the subcontractor knows of, or ought to know of. ‘If the defect or danger is hidden and known to the owner, and neither known to the [subcontractor, nor such as he ought to know, it is the duty of the owner [general contractor] to warn the [subcontractor and if he does not do this, of course, he is liable for resultant injury.’
“ ‘ “The duty to keep an area safe for invitees is limited to hidden defects which are not known to the invitee and would not be discovered by him in the exercise of ordinary care. All ordinary risks present are assumed by the invitee, and the general contractor or owner is under no duty to alter the premises so as to [alleviate] known and obvious dangers. The general contractor is not liable to an invitee for an injury-resulting from a danger that was obvious or that should have been observed in the exercise of reasonable care. The entire basis of an invitor’s liability rests upon his superior knowledge of the danger that causes the invitee’s injuries. If that superior knowledge is lacking, as when the danger is obvious, the invitor cannot be held liable.”
“ ‘... A plaintiff may not recover if the injury he receives is caused by an obvious or known defect in the premises.’
“Breeden, 562 So.2d at 160. (Emphasis added; first bracketed language added; citations omitted.) ....
“Therefore, openness and obviousness of a hazard, if established, negate the general-contractor invitor’s duty to eliminate the hazard or to warn the subcontractor invitee of the hazard; and this negation of duty, in and of itself, defeats the subcontractor’s injury claim without the operation of any affirmative defense such as contributory negligence or assumption of risk. In other words, in this context, openness and obviousness, if established, negate the duty, defeat the claim, and pretermit any issue of the effect of openness and obviousness on the affirmative defenses of contributory negligence and assumption of risk. Only if the subcontractor plaintiff can establish some special duty on the general contractor to protect the subcontractor from open and obvious hazards as distinguished from the general contractor’s general duty as stated by Breeden, which does not require such protection, and only if the subcontractor plaintiff can likewise establish a breach of such special duty and proximately resulting damages might the issue of the effect of the openness and obviousness on the affirmative defenses of contributory negligence and assumption of risk become critical.”

Sessions v. Nonnenmann, 842 So.2d 649, 651-52 (Ala.2002).

In the present case, in addition to the premises-liability theory, Burkhardt alleged that Yates had negligently maintained, inspected, operated, and/or tested the buck hoist. Although those allegations might be construed as allegations that Yates had breached a special duty, we note that the jury found in favor of Burkhardt on the premises-liability theory only. Thus, a determination in Yates’s favor on whether the alleged defect in the buck hoist was open and obvious would “defeat[] the subcontractor’s injury claim.” Sessions, 842 So.2d at 652.

In Heath v. Sims Brothers Construction Co., 529 So.2d 994 (Ala.1988), our supreme court affirmed a summary judgment for the defendant on the basis that the alleged defect was open and obvious. In Heath, an employee of a subcontractor was working on a scaffold when one of the wheels of the scaffold fell into a hole in the floor, causing the employee to fall. 529 So.2d at 995. The supreme court noted that the employee had

“admitted that he was aware of the danger presented by the holes in the floor. If, therefore, the holes constituted a dangerous condition, under the facts of this case it was an open and obvious danger that the [employee] should have recognized, and that, by his own admission, he did recognize.”

529 So.2d at 996. See also Sessions, supra (reversing a judgment in favor of a subcontractor on a premises-liability claim against a contractor when the alleged defect, an unguarded open stairwell, was un-disputably open and obvious).

In the present case, Burkhardt testified that he had boarded the buck hoist to travel to the 12th floor of the condominium. He testified that, when additional people boarded the buck hoist on-the way up, he had moved over and stood on the edge of a pallet of tile. Burkhardt testified that he was slightly squatting underneath the gear box of the buck hoist, that the operator stopped the buck hoist short of the landing for the 12th floor, that the operator started the buck hoist up again to move it up to the landing, and that the operator’s restarting the buck hoist had caused Burkhardt to stand straight up and hit his head on the bottom of the gear box, resulting in an injury to his neck. Burk-hardt testified that the tendency of the buck hoist to ride rough and jerk was a defect that had caused his injury.

Burkhardt testified further that he had ridden the buck hoist before the day that he was injured and that he knew the buck hoist “rode rough” before that day. In. fact, he testified that it was the roughest buck hoist he had ever ridden. Burkhardt testified that the buck hoist was unsafe and that he had complained “several times” about the buck hoist to the project superintendent on the Caribe III jobsite. Burkhardt further testified that, before the day he was injured, he was aware that the operators of the buck hoist frequently started and stopped, jerking the hoist to get it to a floor level. A.B. Gordon, Burk-hardt’s expert witness, testified that he had also ridden the buck hoist. Gordon similarly testified that the buck hoist was the roughest buck hoist he had ever ridden, that it started and stopped in a rough fashion, and that the hoist would jerk a person’s knees as it started and stopped. Don Leatherwood, another witness called by Burkhardt, testified that he had ridden on the buck hoist and that he knew that it rode rough and jerky.

Based on the foregoing, we conclude that the facts in this case are similar to the facts in Heath, supra, in that Burkhardt “admitted that he was aware of the danger presented by [the buck hoist].” 529 So.2d at 996. The buck hoist in this case “was an open and obvious danger that [Burk-hardt] should have recognized, and that, by his own admission, he did recognize.” Id. Thus, we find that the alleged defect in the buck hoist was open and obvious as a matter of law, a finding which “defeats [Burkhardt’s] injury claim.” Sessions, 842 So.2d at 652. Accordingly, we conclude that the trial court erred in denying Yates’s motion for a judgment as a matter of law on the negligence claim based on the theory of premises liability; we therefore reverse the trial court’s judgment and remand the cause for the entry of a judgment in favor of Yates.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Neither the claims alleged against Yarco nor the claims alleged against Yates in the initial complaint are at issue in this appeal.

      . A buck hoist was described by Burkhardt's expert witness as being a "construction site personnel and material hoist[] for vertical transportation.”

      .Yates did not present any evidence after Burkhardt rested his case.

      . A motion for a judgment notwithstanding the verdict is "now called a renewed motion for a judgment as a matter of law.” Robertson v. Gaddy Elec. & Plumbing, LLC, 53 So.3d 75, 79 (Ala.2010); see also Rule 50, Ala. R. Civ. P.

      . Because we reverse the judgment based on our conclusion that the alleged defect in the buck hoist was open and obvious, we preter-mit discussion of the remaining issues raised by Yates on appeal.


author: SMITH, Justice.

text:
    Ex parte Henry BURKHARDT. (In re W.G. Yates & Sons, Inc. v. Henry Burkhardt).
    1091757.
    Supreme Court of Alabama.
    Nov. 12, 2010.

      Peter S. Mackey of Burns, Cunningham & Mackey, PC, Mobile, for petitioner.
    Submitted on petitioner’s brief only.
   SMITH, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

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


author: WISE, Presiding Judge.

text:
    James Michael BRANNON v. STATE of Alabama.
    CR-09-0402.
    Court of Criminal Appeals of Alabama.
    June 25, 2010.

      J. Tony Glenn, Hamilton, for appellant.
    Troy King, atty. gen., and Robin D. Scales, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

The appellant, James Michael Brannon, was indicted for two counts of capital murder for the killing of Bruce Pigg. Count I charged him with murder made capital because he committed it during the course of a kidnapping, § 13A-5-40(a)(4), Ala. Code 1975, and Count II charged him -with murder made capital because he committed it during the course of a robbery, § 13A-5-40(a)(2), Ala.Code 1975. Bran-non was convicted of two counts of felony-murder, a violation of § 13A-6-2(a)(3), Ala.Code 1975. The trial court sentenced him to serve concurrent terms of forty years in prison. Brannon did not file any post-judgment motions. This appeal followed.

The State presented evidence that the victim, Bruce Pigg, was the cousin of Heath York; that, in January 2006, Bran-non was living with York; that Heath Jarrett was a drug dealer; and that Pigg bought drugs from Jarrett. A few weeks before January 30, 2006, Pigg told York that four pounds of Jarrett’s marijuana was missing. Jarrett believed Pigg had taken the marijuana. About two weeks before January 30, 2006, there was an incident where Pigg was at Jarrett’s home and Jarrett would not let him leave. Jarrett let Pigg telephone his father, and Pigg told his father Jarrett would not let him leave unless he came up with $2,000 or $3,000. Pigg’s father telephoned York, York went to Jarrett’s residence, and Jarrett eventually released Pigg after Jarrett had Pigg sign something like an “IOU.”

York testified that, on January 30, 2006, he, Brannon, Jarrett, Gabriel Moreno, and Derek Boyd were at Pisgah Bridge drinking and that Brannon, Jarrett, and Boyd talked about what they were going to do about Pigg and the missing marijuana. At some point, Jarrett said he would give someone money if they would bring Pigg to him, and Brannon said he would take Jarrett up on that offer. They all left and eventually went to Jarrett’s house. York testified that, while they were at Jarrett’s house, they decided they would get his vehicle stuck behind his trailer and then get Pigg to come pull him out.

The State presented evidence that Bran-non, York, Jarrett, Moreno, and Boyd left and went to York’s trailer; that they got York’s vehicle stuck behind his trailer; that Brannon went to get Pigg; that Jarrett, Moreno, and Boyd hid in the woods; that Brannon came back in his vehicle; and that Pigg arrived driving his own vehicle. After Pigg got out of his vehicle, Jarrett attacked Pigg with a stick and asked about where his money was. Bran-non also started hitting Pigg with his fists. At one point, Pigg was on the ground, Brannon had a gun, and Brannon fired a shot between Pigg’s legs. The State also presented evidence that Jarrett used zip ties to bind Pigg’s wrists; that Jarrett and Brannon started putting Pigg into the back of Pigg’s vehicle; that Boyd was afraid they were going to break Pigg’s legs, so he helped them; that Brannon and Jarrett left the area in Pigg’s vehicle with Pigg; and that they went to Jarrett’s home.

York testified that, some time later, Boyd picked him up and took him to Jarrett’s; that he got out and they said, ‘He’s barely breathing’ ”; that he told them they needed to take Pigg to the hospital; that somebody then said, “ ‘He’s dead’ that he told Boyd to take him home; that he later got his brother to take him to talk to law enforcement officers; and that he reported the incident to Chief Donald Baker of the Addison Police Department. (R. 54.)

Boyd testified that, at some point after they put Pigg into the vehicle, he took Moreno to a friend’s house; that, as he was on his way home, he saw Pigg’s vehicle at Jarrett’s house, and he stopped; that he saw Pigg lying on his back in Jarrett’s back yard; and that Pigg was conscious, and Brannon and Jarrett were still kicking him around and yelling at him. He also testified that his cousin and her child lived with Jarrett; that between five and ten minutes after he arrived, his cousin pulled up with her child; that he went around front; that his cousin told him he had blood on his pants; that he went into the house, got his cousin to give him a pair of pants, and told his cousin to leave; that, when he came out of the house, Pigg was in the back of his vehicle; that Pigg was not conscious, but he was breathing and had a pulse; that he told Brannon and Jarrett they should take Pigg to a hospital, but they did not; that Brannon pulled his revolver and told him he was coming with them; that Jarrett got into Pigg’s vehicle; that he got into his vehicle, and Brannon got into the vehicle with the gun; that Brannon told him to follow Jarrett; that they ended up somewhere in Jasper; that Brannon and Jarrett made him help them take Pigg out of the vehicle and put him out in the woods; that Jarrett drove Pigg’s vehicle down some other back roads and left it; and that they picked up Jarrett and left. Boyd further testified that, ultimately, they stopped at the Econo Lodge motel in Good Hope; that Jarrett rented a room there, and they left Brannon at the room; that he dropped Jarrett off at Jarrett’s friend’s house; that, after he dropped off Jarrett, he telephoned his mother, got the telephone number for Baker, telephoned Baker, and said he was coming in to give him his statement; and that he later made a statement to Baker.

Law enforcement officers subsequently went to the Econo Lodge and found Bran-non. When he was taken into custody, Brannon was wearing a camouflage jacket that had blood on it. Later, officers went to another residence and found Jarrett lying on a couch. At that time, they found a green jacket that had blood on it on the couch next to Jarrett. Forensic testing indicated that blood on the two jackets was consistent with Pigg’s DNA profile. Finally, the State presented evidence that law enforcement officers found Pigg’s vehicle in Walker County and that officers found Pigg’s body in a wooded area in Winston County.

I.

Brannon argues that the trial court erroneously admitted the camouflage jacket and the green jacket into evidence because the State did not establish an adequate chain of custody for them. However, during the trial, Crystal Kissel testified that she was previously the section supervisor for the forensic biology section of the Alabama Department of Forensic Sciences (“ADFS”); that she had received a box that contained paper bags containing various items of clothing; that one paper bag contained a camouflage jacket; and that another paper bag contained a green jacket. During her testimony, photographs of the jackets were admitted into evidence without objection. Kissel also testified, without objection, that there were areas on both jackets that were positive for blood and that forensic testing indicated that the blood on both jackets was consistent with Pigg’s DNA profile. Further, law enforcement officers testified, without objection, that Brannon was wearing a green camouflage jacket when he was taken into custody and that a green jacket was on the couch next to Jarrett when they found him. Therefore, the admission of the jackets was cumulative to the testimony of Kissel and the law enforcement officers. “[Evidence] that may be inadmissible may be rendered harmless by prior or subsequent lawful testimony to the same effect or from which the same facts can be inferred.” White v. State, 650 So.2d 538, 541 (Ala.Crim.App.1994), overruled on other grounds, Ex parte Rivers, 669 So.2d 239 (Ala.Crim.App.1995). After reviewing the entire record as a whole, “it is “clear beyond a reasonable doubt that the jury would have returned a verdict of guilty” even without the admission of the actual jackets. United States v. Hasting, 461 U.S. 499, 510, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). See also Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Under these circumstances, error, if any, in the admission of the jackets was harmless. See Rule 45, Ala. R.App. P.

II.

Next, we must address the propriety of Brannon’s two felony-murder convictions. In Ex parte Rice, 766 So.2d 143 (Ala.1999), the Alabama Supreme Court held that § 13A-6-2(a)(3), Ala.Code 1975, creates a single offense, even though it provides alternative methods of proving the offense. The supreme court also held that double jeopardy principles prohibit multiple convictions and multiple sentences for felony-murder if the convictions and sentences arise from a single killing. In this case, Brannon was convicted of one count of felony-murder during a kidnapping and one count of felony-murder during a robbery. Both convictions arose from the murder of Pigg. Therefore, Bran-non could not properly be convicted of and sentenced for two counts of felony-murder. The trial court sentenced Brannon to serve concurrent terms of forty years in prison. However, in Rice, the supreme court held:

“We note that merely ordering that Rice’s sentences run concurrently is not a constitutionally acceptable option. The Supreme Court stated in Ball v. United States, 470 U.S. 856, 864-65, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985):
“‘The remedy of ordering one of the sentences to be served concurrently with the other cannot be squared with Congress’ intention. One of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense. See Missouri v. Hunter, 459 U.S. 359, 368[, 103 S.Ct. 673, 74 L.Ed.2d 535] (1983).
“ ‘The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant’s eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant’s credibility and certainly carries the societal stigma accompanying any criminal conviction. See Benton v. Maryland, 395 U.S. 784, 790-91[, 89 S.Ct. 2056, 23 L.Ed.2d 707] (1969); Sibron v. New York, 392 U.S. 40, 54-56[, 88 S.Ct. 1889, 20 L.Ed.2d 917] (1968). Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment.’
“See, also, Rolling v. State, [673 So.2d 812 (Ala.Crim.App.1995) ].
“Neither is it an acceptable option to merely vacate one of Rice’s convictions and its corresponding sentence. The jury specifically found that Rice had violated § 13A-6-2(a)(3) in two different ways — by participating in a kidnapping and causing Taylor’s death and by participating in a robbery and causing Taylor’s death. Based on the record before us, an appellate court’s vacating one of Rice’s convictions and its corresponding sentence would have the effect, albeit unintended, of nullifying a part of the jury’s verdict. We think the better approach is for the Court of Criminal Appeals to remand the case to the trial court for the entry of a new order — an order that adjudges Rice guilty of Taylor’s murder and sentences him for that single offense.”

Rice, 766 So.2d at 152-53. Therefore, Brannon’s convictions for two counts of felony murder cannot stand. Accordingly, we remand this case for the trial court to enter a new order that adjudges Brannon guilty of Bigg’s murder and sentences him for that single offense. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion.

REMANDED WITH INSTRUCTIONS.

WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.

      . At the beginning of the trial, the trial court noted that the State was not trying the case as a capital case and that the trial would involve the felony-murder charges.

      . Brannon had previously filed a pretrial motion to suppress evidence in this case. However, the trial court did not rule on that motion before trial. Further, Brannon did not raise the issue of the motion to suppress until the day after Kissel had testified.

       Note from the reporter of decisions: On August 13, 2010, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On August 27, 2010, that court denied rehearing, without opinion. On October 8, 2010, the Supreme Court denied certiorari review, without opinion (1091687).