author: MOORE, Judge.

text:
    Frank STOKES, Jr. v. E’Stella Alexander Webb COTTRELL et al. E’Stella Alexander Webb Cottrell v. Frank Stokes, Jr. Johnnie Mae Green et al. v. Frank Stokes, Jr.
    2060887.
    Court of Civil Appeals of Alabama.
    Sept. 10, 2010.
    Joseph W. Warren, Montgomery; and Theron Stokes, Montgomery, for appellant/cross-appellee Frank Stokes, Jr.
    Joseph T. Scarborough, Jr., and Stephen S. Weldon of Scarborough & Weldon, LLC, Tallassee, for appellants/cross-appel-lees Johnnie Mae Alexander Green, Lillie Robinson, Oscar C. Alexander, Bertha Mae Humphery, Shirley Alexander, Cathy Alexander, Johnny Alexander, Jr., and Althea Alexander.
    John Cottle of Becker & Poliakoff, P.A., Fort Walton Beach, Florida, for appel-lee/cross-appellant E’Stella Alexander Webb Cottrell.
   On Remand from the Alabama Supreme Court

MOORE, Judge.

This court’s prior judgment has been vacated in part, and the cause remanded with instructions by the Supreme Court of Alabama. See Ex parte Green, 58 So.3d 135 (Ala.2010). On remand to this court, and in compliance with the Supreme Court’s opinion, we hereby “dismiss[ ] the appeal in part and instruct!] the trial court to vacate its Rule 54(b)[, Ala. R. Civ. P.,] certification as to the property it awarded to [Johnnie Mae Alexander Green, Lillie Robinson, Oscar C. Alexander, Bertha Mae Humphery, Shirley Alexander, Cathy Alexander, Johnny Alexander, Jr., and Althea Alexander and to E’Stella Alexander Webb Cottrell] and to then address the remaining issues.”

APPEALS DISMISSED IN PART AND REMANDED WITH INSTRUCTIONS.

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


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    G.A. WEST & COMPANY v. Ricky McGHEE.
    2070961.
    Court of Civil Appeals of Alabama.
    Jan. 29, 2010.
    Certiorari Denied Sept. 10, 2010 Alabama Supreme Court 1090627.

      William E. Pipkin, Jr., of Austill, Lewis & Pipkin, P.C., Mobile, for appellant.
    Richard E. Browning, Mobile, for appel-lee.
   On Application for Rehearing

BRYAN, Judge.

This court’s opinion of July 17, 2009, is withdrawn, and the following is substituted therefor.

G.A. West & Company (“G.A. West”) appeals from a judgment awarding Ricky McGhee permanent-total-disability benefits pursuant to the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975 (“the Act”). We affirm in part and reverse in part.

On August 16, 2004, McGhee began working for G.A. West as a welder and an iron worker. On the following day, McGhee was injured in a fall at work. In its judgment, the trial court made the following findings of fact concerning McGhee’s accident:

“McGhee was working with other iron workers in the process of dismantling some equipment as part of a ‘shutdown’ operation that was being conducted at the Alabama River Pulp mill in Monroe-ville, Alabama. At the time of his injury, [McGhee] was working approximately thirty (30) feet off the ground on a catwalk. At that time, he was equipped with and wearing a safety harness with a double lanyard. At the particular moment of his injury, [McGhee] was unhooking his lanyard to move to a new location to begin further work with a cutting torch. Because of the distance to the new area where he was going to work, his safety lanyard would not allow him to be attached at the new location before he could unattach from the prior one. This was a process which was referred to as being ‘in transition’ by witnesses at trial. In the course of doing this, Mr. McGhee lost his footing and fell, sustaining severe injuries.”

Following the accident, G.A. West paid McGhee temporary-total-disability benefits through June 5, 2005. On June 27, 2005, G.A. West sued McGhee, alleging that a dispute had arisen between the parties regarding whether G.A. West owed McGhee any additional benefits under the Act. On February 26, 2008, the trial court held a trial, at which several issues were tried. On March 19, 2008, the trial court entered a judgment awarding permanent-total-disability benefits to McGhee. Following the denial of its postjudgment motion, G.A. West appealed to this court.

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

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

Substantial evidence is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

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

Landers v. Lowe’s Home Ctrs., Inc., 14 So.3d 144, 151 (Ala.Civ.App.2007) (opinion on original submission).

On appeal, G.A. West first argues that the trial court erred in determining McGhee’s average weekly earnings. Section 25-5-57(b), Ala.Code 1975, establishes methods for calculating an employee’s average weekly earnings. That section first provides:

“Compensation under this section shall be computed on the basis of the average weekly earnings. Average weekly earnings shall be based on the wages, as defined in Section 25 — 5—1(6)[, Ala.Code 1975,] of the injured employee in the employment in which he or she was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by 52, but if the injured employee lost more than seven consecutive calendar days during the period, although not in the same week, then the earnings for the remainder of the period, although not in the same week, then the earnings for the remainder of the 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted.”

Section 25-5-57(b) provides a second method for calculating average weekly earnings if an employee is injured after having worked for an employer for fewer than 52 weeks:

“Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided results just and fair to both parties will thereby be obtained.”

Section 25-5-57(b) also provides a third method for calculating average weekly earnings:

“Where by reason of the shortness of the time during which the employee has been in the employment of his or her employer or the casual nature or terms of the employment it is impracticable to compute the average weekly earnings as above defined, regard shall be had to the average weekly amount which during the 52 weeks prior to the injury was being earned by a person in the same grade, employed at the same work by the same employer, and if there is no person so employed, by a person in the same grade employed in the same class of employment in the same district.”

This court has stated:

“[T]he employee has the burden of presenting evidence for computation of his average weekly wage. Cook Transports, Inc. v. Beavers, 528 So.2d 875 (Ala.Civ.App.1988)- [If] the formulas for determining average weekly earnings set out [in § 25-5-57(b) ] are impracticable to apply in a particular case so as to arrive at a just and fair result to both parties, much must be left to the sound judgment and judicial discretion of the trial court. Unexcelled Mfg. Corp. v. Ragland, 52 Ala.App. 57, 289 So.2d 626 (1974); Aluminum Workers Int'l v. Champion, 45 Ala.App. 570, 283 So.2d 511 (1970).”

Stevison v. Qualified Pers., Inc., 571 So.2d 1178, 1180 (Ala.Civ.App.1990).

At trial, McGhee, who had the burden of presenting evidence establishing his average weekly earnings, testified that he was hired by G.A. West to work on a project (“the project”) involving the shutting down of a pulp mill. McGhee testified that he was not a regular employee of G.A. West. McGhee’s hourly wage was $16.50. As noted, McGhee was injured during his second day of employment with G.A. West. A document admitted into evidence at trial indicated that McGhee was paid by G.A. West for working 10 hours daily for 2 days.

Jason Ward, an iron worker who worked with McGhee for G.A. West, testified at trial. Ward testified that McGhee was injured during the beginning of the “pre-down” phase of the project. Ward stated that the pre-down phase lasted approximately a month and that he worked 10 hours a day for 5 days a week during that period. Ward testified that the pre-down phase was followed by a “shutdown” phase that lasted approximately a month. Ward stated that, during the shutdown phase, he worked 12 hours a day for 7 days a week.

In its judgment, the trial court stated:

“[Section] 25-5-57(b) ... sets forth the manner in which the average weekly wage is to be calculated. However, none of the scenarios outlined in that statute fit the facts of this case because of the fact that Mr. McGhee was injured on the second day of the work, and after the project had only begun. Therefore, in keeping with the case of Slay Transportation Company, Inc. v. Miller, 702 So.2d 142 (Ala.Civ.App.1997), the court finds that the most equitable means of arriving at the appropriate average weekly wage is to use a combination of the wages paid to Mr. McGhee for the two days which he worked and the testimony from Mr. Ward documenting the wages he would have earned but for the injury. Under that analysis, the court hereby finds that Mr. McGhee’s average weekly wage on the date of his injury was $1,328.25....”

Because McGhee had worked fewer than 52 weeks for G.A. West before his injury, the first method prescribed by § 25-5-57(b) is clearly inapplicable. Both McGhee and G.A. West contend that using the second method found in § 25-5-57(b) would be inequitable because McGhee worked for only two days for G.A. West. G.A. West argues that the trial court erred by not applying the third method found in § 25-5-57(b). McGhee argues that, because he was injured soon after beginning work on a specific project, it would be inequitable, in calculating McGhee’s average weekly earnings, to rely on the earnings of a welder/iron worker accumulated during the 52-week period immediately before McGhee’s injury.

Our supreme court has discussed the application of the third method found in § 25 — 5—57(b):

“It must be noted that so much of the provision as deals with cases falling under [the third method] does not make it a hard and fast rule on the trial court to award the same wages or earnings as those earned by others there referred to. It simply requires that the court must have ‘regard’ to such average weekly earnings of others in making an award in the instant case, but does not mean that the amount fixed must be identical to the weekly earnings of the others. In other words, it must be regarded as an evidential, though not conclusive, factor, in the ascertainment of the award in hand, taking into consideration, of course, any physical differences such as the interruption or constancy in the respective employments.”

Garrison v. Woodward Iron Co., 210 Ala. 45, 46, 97 So. 64, 64 (1923).

In arguing that the third method should be applied, G.A. West focuses on a document purporting to show the earnings of an unnamed iron worker who had worked for G.A. West during the 52-week period preceding McGhee’s accident. The only indication on the document that the employee is an iron worker is the handwritten notation “Iron Worker” at the top of the document. Like McGhee, the unnamed employee earned $16.50 per hour. The document indicates that the employee earned $37,759.67, or a weekly average of $726.15, during the 52-week period before McGhee’s accident.

When counsel for G.A. West sought to admit the document at trial, counsel for McGhee objected, stating: “I don’t think there’s been any proper foundation laid that he’s a similar employee [to McGhee], I don’t know who this employee was. We don’t know what the job was....” The trial court initially sustained the objection to the document. However, the trial court later admitted the document over the continued objection of McGhee’s counsel. When the trial court admitted the document, the trial court stated:

“I’m going to admit [the document] on the grounds of what you have just now raised[, ie., to show the work activity at the mill,] but I’ll make it real clear, I’m admitting it, but I’ll be [the] gauger of the weight to give it- I’m not going to give it very much weight because ... you just grabbed one employee out of the pot and it may be indicative of that to some extent, it may have some bearing on this, so it would be something that I would look at[.] [B]ut I’ll have to determine as I study it and think through and compare it to the other evidence as to how much weight I’m going to give it.”

The third method prescribed by § 25-5-57(b) requires the trial court to “regard” the average weekly earnings of an employee similarly situated to McGhee. The trial court, in computing McGhee’s average weekly earnings, indicated that it would consider the document showing the earnings of an employee purportedly similarly situated to McGhee. However, the trial court, concerned that that employee’s work may not accurately reflect the work that McGhee performed and would have performed for G.A. West, evidently assigned the document very limited weight. Under the third method found in § 25-5-57(b), although a trial court must consider evidence of the average weekly earnings of a similarly situated employee, that evidence is not conclusive. Garrison, 210 Ala. at 46, 97 So. at 64. As noted, a trial court may depart from the methods prescribed by § 25 — 5—57(b) if those methods fail to produce a just and fair result. Stev-ison, 571 So.2d at 1180. In such situations, much must be left to the discretion of the trial court in determining an employee’s average weekly earnings. Id. Given the facts of this case, the trial court did not err in deviating from the methods found in § 25-5-57(b) in determining McGhee’s average weekly earnings.

Although the trial court did not err in deviating from the methods prescribed by § 25-5-57(b), we cannot affirm the trial court’s calculation of McGhee’s average weekly earnings. The amount determined by the trial court to be McGhee’s average weekly earnings — $1,328.25—appears to be an amount closer to McGhee’s maximum possible weekly earnings than his actual average weekly earnings.

McGhee testified that he was hired by G.A. West to work on the project and that he was not a regular employee of G.A. West. McGhee further testified:

“Q. [By counsel for G.A. West:] ... [B]efore you went to work with G.A. West, it was your practice to work shutdowns for companies, right?
“A. Yes, sir. And we—
“Q. You’d work a few weeks here and few weeks there?
“A. Yes, sir.
“Q. And you had periods—
“A. Yes, sir.
“Q. —Prior to going to work for G.A. West where you were out of work for extended periods of time?
“A. Yes, sir.”

The trial court calculated McGhee’s average weekly earnings to be $1,328.25. That amount indicates the average weekly wage that McGhee would have earned during the project, which lasted two months, had he not been injured. However, that amount does not appear to reflect the average weekly earnings that McGhee would have earned over the course of a year working as a welder and an iron worker. McGhee agreed that he was unemployed for “extended periods of time” before working for G.A. West and that he would “work a few weeks here and few weeks there.” He also acknowledged that he was hired by G.A. West specifically to work on the project. McGhee’s testimony suggesting that he was sporadically employed as a welder and an iron worker is inconsistent with the trial court’s determination that McGhee’s average weekly earnings are $1,328.25. That amount represents an average 67-hour work week — 40 regular hours and 27 overtime hours — at McGhee’s hourly wage of $16.50. The calculation of the average weekly earnings should determine the amount that the employee has lost due to the injury. See Ex Parte Murray, 490 So.2d 1238, 1241 (Ala.1986). Although the trial court’s calculation of McGhee’s average weekly earnings accurately reflects the earnings that McGhee lost during the duration of the project, the record does not indicate that the trial court’s calculation accurately reflects the earnings that McGhee could be expected to lose over the course of an entire year. Accordingly, we must reverse that part of the judgment determining McGhee’s average weekly earnings.

G.A. West also argues that the trial court erred in determining that McGhee is permanently and totally disabled.

“ ‘Permanent total disability’ is defined in § 25-5-57(a)(4)d., Ala.Code 1975, to include ‘any physical injury or mental impairment resulting from an accident, which injury or impairment permanently and totally incapacitates the employee from working at and being retrained for gainful employment.’ Total disability does not mean absolute helplessness; rather, it means that the employee is not able to perform his or her trade and is unable to obtain other reasonably gainful employment.”

Dolgencorp, Inc. v. Hudson, 924 So.2d 727, 734 (Ala.Civ.App.2005). ‘“[G]ainful employment means employment similar in remuneration to that earned prior to the injury. Implicit in this is that the gainful employment sought to be restored must be “suitable.” By “suitable” we mean employment which is compatible with the employee’s pre-injury occupation, age, education, and aptitude.’ ” Trans Mart, Inc. v. Brewer, 630 So.2d 469, 471 (Ala.Civ.App.1993) (quoting Ex parte Beaver Valley Corp., 477 So.2d 408, 412 (Ala.1985)).

McGhee was 54 years old at the time of the trial. McGhee testified that he completed the 10th or 11th grade of high school and that he later obtained a GED. McGhee testified that he served in the United States Navy for approximately four years after obtaining his GED. McGhee subsequently attended trade school, where he trained to be a welder. McGhee had worked as a welder and an iron worker for over 20 years before his accident.

As a result of his fall at work, McGhee sustained a fractured right orbital socket, a fractured right nasal bone, a fractured right maxillary sinus, a closed-head injury, and a fractured right wrist. The trial court made the following findings of fact concerning the effects of McGhee’s injuries:

“14. Following his initial injury, Mr. McGhee received medical treatment from numerous medical providers, including Dr. Thomas Barbour (orthopae-dist), Dr. Stephen Slobodian (physical medicine and rehabilitation), Dr. John Hutcheson (neuropsychologist) and Dr. R. Scott Benson (psychiatrist).
“15. Dr. Barbour performed two different surgeries on Mr. McGhee.... At the end of his treatment, Dr. Barbour expressed the opinion that Mr. McGhee had sustained a seven (7%) percent impairment to the right upper extremityf. Dr. Barbour assigned McGhee] restrictions of no heavy gripping, no repetitive gripping and no repetitive lifting over fifteen (15) pounds with the right arm.
“16. Dr. Stephen Slobodian began treating Mr. McGhee on January 28, 2005. He ordered an MRI on February 10, 2005[,] which objectively demonstrated clear evidence of an injury to the right side of the brain.
“17. ... Dr. Slobodian placed Mr. McGhee at maximum medical improvement on September 22, 2005[. Dr. Slo-bodian] assigned a total nine (9%) percent impairment to the body as a whole, which consisted of a combination of the five (5%) percent assigned to him as a result of the closed head injury and the seven (7%) assigned by Dr. Barbour pertaining to the right arm injury.
“18. In addition, Dr. Slobodian testified that Mr. McGhee will have lifetime difficulties with cognitive functioning as a result of his closed head injury, and that he will not be able to think as well beforehand, will not be able to follow directions as well and will have trouble with calculations. Additionally, Dr. Slo-bodian noted that Mr. McGhee was suffering from severe depression, for which he referred him to Dr. John Hutcheson.
“20. Dr. Hutcheson evaluated Mr. McGhee at the specific request of Dr. Slobodian because of his expertise in treating patients with closed head injuries. [Dr. Hutcheson] stated that Mr. McGhee suffered from a severe depression and that, as a result of that depression, he did not believe that Mr. McGhee was capable of returning to gainful employment.
“21. Dr. Hutcheson further testified that the recognized pattern is that Mr. McGhee’s condition will worsen instead of improving as he gets older.
“28. ... McGhee offered vocational testimony from an expert retained by him, Mr. Joseph Miller. Mr. Miller testified that as a result of Mr. McGhee’s injuries, the restrictions assigned to him by the various treating physicians, Mr. McGhee’s past work experience, age, educational level and vocational aptitudes, ... it is his opinion that Mr. McGhee is one hundred (100%) percent totally disabled from the vocational standpoint. Mr. Miller has had extensive experience working with patients with closed head injuries, of which the court takes note and finds particularly relevant to this case. Pertinent to that, the matters testified to by Dr. Slobodian regarding Mr. McGhee’s inability to concentrate, problems with processing information, forgetfulness, and temper outbursts consistent with personality changes from the closed head injury all constitute significant obstacles toward any other attempts to return Mr. McGhee to gainful employment. When all of this is coupled with the opinions of Dr. John Hutcheson regarding Mr. McGhee’s severe depression, Mr. Miller was clearly of the opinion that Mr. McGhee is one hundred (100%) percent vocationally disabled. The court finds this testimony in keeping with the totality of the evidence in this case, and specifically adopts that opinion.”

In its judgment, the trial court also stated that it considered the expert testimony of Tom Christianson, a vocational-rehabilitation counselor. Christianson identified several jobs that he believed McGhee could perform. However, the trial court found the testimony of Joseph Miller, McGhee’s vocational expert, to be more convincing than Christianson’s testimony. Although the record contains some evidence suggesting that McGhee is less than permanently and totally disabled, “a trial court’s findings of fact based on conflicting evidence are conclusive on this court if they are supported by substantial evidence.” Landers, 14 So.3d at 146. Given the evidence before the trial court, the trial court’s finding that McGhee is permanently and totally disabled is supported by substantial evidence. That is, a fair-minded person in the exercise of impartial judgment could reasonably infer that McGhee is permanently and totally disabled. Ex parte Trinity Indus., Inc., supra. Accordingly, the trial court did not err in its determination of McGhee’s degree of disability. § 25-5-81(e), Ala.Code 1975.

G.A. West also argues that the trial court erred in determining that McGhee did not willfully violate a safety rule by failing to have his safety lanyard securely attached when he fell. McGhee was in the process of disconnecting his lanyard from one location and attaching it to another location when he fell. A finding of willful misconduct precludes an injured employee from recovering under the Act. Section 25-5-51, Ala.Code 1975, provides, in pertinent part, that “no compensation shall be allowed for an injury ... caused by the willful misconduct of the employee ... [or caused by] his or her willful failure or willful refusal to use safety appliances provided by the employer....” Willful misconduct is an affirmative defense. Ex parte Bowater, Inc., 772 So.2d 1181, 1181-82 (Ala.2000).

G.A. West also argues that McGhee refused to undergo vocational rehabilitation or to accept reasonable accommodation. Section 25-5-57(a)(4)(d), Ala.Code 1975, provides, in pertinent part, that “[a]ny employee whose disability results from an injury or impairment and who shall have refused to undergo ... vocational rehabilitation or to accept reasonable accommodation shall not be deemed permanently and totally disabled.”

G.A. West did not plead either the defense of willful misconduct or the defense of refusal of vocational rehabilitation or reasonable accommodation. At the beginning of the trial, counsel for G.A. West stated that he would be presenting those defenses during the trial. At that time, counsel for McGhee objected to the trial of those issues, stating:

“As far as refusing employment, the first I’ve heard of that ... is one minute ago when [counsel for G.A. West] just identified it to you as a possible issue.
“... As far as [a possible] violation of the safety rules, [the] first I heard of that was six days ago when [counsel for G.A. West] called me about making arrangements to take the deposition of Mr. Billy Black who was the safety director on the job site. We made arrangements and took his deposition. However, I have had no prior knowledge of that as being a defense in this case and have had no opportunity to try to explore that possibility. There’s an individual named Mr. Mack Morris who was [McGhee’s] supervisor on the job that I was able to contact last night, who I was able to speak with. He said he was a superintendent on a job in Mobile and was not able to be here at trial today. As Your Honor pointed out ... this case [has] been pending almost three years. This issue has never been raised by [G.A. West].”

The trial court decided to try the issues of willful misconduct and refusal of vocational rehabilitation or reasonable accommodation over the objection of McGhee’s counsel.

G.A. West contends that its complaint placed McGhee on notice of the issues of willful misconduct and refusal of vocational rehabilitation or reasonable accommodation. However, G.A. West’s complaint broadly alleged that a dispute had arisen regarding whether G.A. West owed McGhee any additional benefits under the Act and sought a judgment “resolvfing] all controversies in this action in [G.A. West’s] favor.” McGhee was unaware that G.A. West would be asserting the willful-misconduct defense until shortly before trial. McGhee first discovered that G.A. West would be asserting the defense of refusal of vocational rehabilitation or reasonable accommodation on the day of the trial. At the time of the trial, the case had been pending for approximately 32 months. Given those facts, we conclude that McGhee would be substantially prejudiced if we were to reverse the judgment of the trial court based on either of those two issues. Accordingly, we do not address those issues further.

G.A. West also argues that, pursuant to § 25-5-77(b), Ala.Code 1975, the trial court erred in awarding benefits because, G.A. West says, McGhee refused to accept reasonable medical treatment. However, G.A. West did not present this argument to the trial court. “[An appellate court] cannot consider arguments advanced for the purpose of reversing the judgment of a trial court when those arguments were never presented to the trial court for consideration or were raised for the first time on appeal.” State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.2005). Therefore, we do not address that argument further.

We reverse the judgment of the trial court insofar as it determined McGhee’s average weekly earnings to be $1,328.25. In all other respects, we affirm the judgment of the trial court.

APPLICATION FOR REHEARING GRANTED; OPINION OF JULY 17, 2009, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

MOORE, J., recuses himself.


author: THOMAS, Judge.

text:
    Kenneth SMITH v. Michael W. DAVIDSON.
    2081188.
    Court of Civil Appeals of Alabama.
    April 2, 2010.
    Rehearing Denied July 9, 2010.
    Certiorari Denied Sept. 10, 2010 Alabama Supreme Court 1091454.

      Kenneth Smith, pro se.
    Joel P. Jaqubino of Wolfe, Jones, Wolfe, Hancock & Daniel, LLC, Huntsville, for appellee.
   THOMAS, Judge.

Kenneth Smith appeals from the judgment of the Madison Circuit Court in favor of Michael W. Davidson on Davidson’s claims against Smith and dismissing Smith’s claims against Davidson. We affirm.

Facts and Procedural History

Smith leased a parcel of commercial property from Davidson. On June 13, 2007, Smith sued Davidson, alleging in his complaint claims of breach of contract, conversion, intentional interference with contractual rights, and wrongful eviction. Smith also moved the trial court to enter a temporary restraining order and a preliminary injunction against Davidson; the trial court denied Smith’s motion. On the same day, Davidson sued Smith, claiming breach of contract, requesting a declaratory judgment, and requesting that a lien be placed on the commercial property. The trial court consolidated the two actions.

In September 2007, Davidson served Smith with a set of interrogatories and requests for production. Among the documents that Davidson requested that Smith produce were Smith’s federal and state income-tax returns for years 2000 through 2006, Smith objected to the production of his tax returns on the basis that his personal tax returns were irrelevant and immaterial to the actions and that Davidson’s request constituted an unwarranted intrusion into Smith’s personal affairs. Davidson sent letters to Smith on October 31, 2007, December 11, 2007, June 5, 2008, and September 29, 2008, requesting that Smith supplement his responses to Davidson’s interrogatories and produce the requested tax returns. In November 2008, Davidson moved the trial court to compel Smith to produce his tax returns. The trial court granted Davidson’s motion to compel, ordering Smith to produce the requested tax returns within 15 days. Smith did not produce the requested tax returns.

Davidson also attempted to take Smith’s deposition. Davidson scheduled depositions for October 10, 2008, October 23, 2008, October 28, 2008, and November 10, 2008; Smith failed to appear for any of the scheduled depositions. Davidson moved the trial court to sanction Smith for his failure to appear at the depositions and to compel Smith to comply with Davidson’s discovery requests. The trial court, on November 13, 2008, entered an order requiring Smith to make himself available for deposition within the following 48 hours. Davidson scheduled another deposition for November 17, 2008, and Smith again failed to appear.

On November 17, 2008, Davidson moved the trial court to dismiss Smith’s action because of Smith’s failure to comply with Davidson’s discovery requests and the trial court’s orders. The trial court reserved ruling on Davidson’s motion based on Smith’s counsel’s representation to the trial court that Smith’s noncompliance had been due to a medical issue. The trial court ordered Smith to submit to the court proof of the circumstances surrounding Smith’s failure to appear for his deposition and to contact Davidson to reschedule Smith’s deposition.

On December 1, 2008, Smith responded to Davidson’s motion to dismiss. In Smith’s response, Smith alleged that the depositions scheduled to occur on October 10 and October 23 had been rescheduled due to scheduling conflicts and that the depositions scheduled to occur on October 28 and November 10 had had to be rescheduled because Smith had been in the hospital. Smith also alleged that on the morning of November 17, 2008, he had suffered complications from his earlier hospitalization that required him to return to the hospital for treatment. Smith’s counsel also alleged that she had become ill and had been unable to work from November 18, 2008, through December 1, 2008.

Earlier on the same day that Smith had submitted his response to Davidson’s motion to dismiss, the trial court had held its scheduled trial on Smith’s and Davidson’s actions. Neither Smith nor his attorney were present. Based on an affidavit submitted by Davidson, the trial court, on December 2, 2008, entered a judgment in favor of Davidson on his claims against Smith and dismissed Smith’s claims against Davidson.

On January 1, 2009, Smith moved the trial court to vacate its judgment, alleging that he did not have notice of the trial date and that neither Smith nor his counsel were physically able to appear at the trial because Smith had been recovering from surgery and his counsel had been severely ill. The trial court granted Smith’s motion and vacated its December 2, 2008, judgment. In its order vacating its December 2, 2008, judgment, the trial court ordered Smith to comply with all Davidson’s outstanding discovery requests by March 5, 2009, and stated that Smith’s failure to comply with the discovery requests would be considered a willful and contumacious act that would subject Smith to further sanctions, up to and including a dismissal of his action pursuant to Rule 41(b), Ala. R. Civ. P.

Davidson scheduled Smith’s deposition for March 3, 2009. Smith appeared for the deposition, but he produced only his 2005 tax return. Smith alleged in his deposition that the tax returns for the remaining years were unavailable. In response to Smith’s failure to produce his tax returns, Davidson moved the trial court to dismiss Smith’s action for Smith’s failure to comply with Davidson’s discovery requests and the trial court’s orders. Smith responded to Davidson’s motion, alleging that Smith’s tax returns for the remaining years that Davidson had requested were unavailable.

On March 30, 2009, the trial court entered a judgment reinstating its December 2, 2008, judgment, dismissing Smith’s claims and finding in favor of Davidson on his claims against Smith. The judgment also ordered Smith to pay $750 to Davidson’s attorney as a sanction. The trial court based its judgment on Smith’s “refusal to comply with the discovery rules and [the trial court’s] orders.” Smith filed a postjudgment motion requesting that the trial court vacate its judgment. Smith’s postjudgment motion was denied by operation of law, and Smith timely appealed to the Alabama Supreme Court. That court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Issue

Smith presents one issue on appeal: whether the trial court’s judgment in favor of Davidson as a sanction for Smith’s failure to comply with Davidson’s discovery requests and the trial court’s orders was supported by sufficient evidence.

Standard of Review

“It is well settled that the decision whether to enter a Rule 41(b) dismissal is within the sound discretion of the trial court, and such a dismissal will be reversed only if the trial court exceeded its discretion. Atkins v. Shirley, 561 So.2d 1075, 1077 (Ala.1990); Riddlesprigger v. Ervin, 519 So.2d 486, 487 (Ala.1987); State ex rel. S.M. v. A.H., 832 So.2d 79, 80 (Ala.Civ.App.2002); and Coulter v. Stewart, 726 So.2d 726, 728 (Ala.Civ.App.1999). However, because dismissal with prejudice is a drastic sanction, it should be applied only in extreme situations. Smith v. Wilcox County Bd. of Educ., 365 So.2d 659, 661 (Ala.1978). Therefore, this court will carefully scrutinize orders dismissing an action with prejudice and occasionally will find it necessary to set them aside. Id. In reviewing the trial court’s dismissal of an action, we must determine whether the ruling is supported by the evidence contained in the record. Nash v. Cosby, 597 So.2d 209, 210 (Ala.1992); Atkins v. Shirley, 561 So.2d at 1077; and Riddlesprigger v. Ervin, 519 So.2d at 487.”

Blake v. Stinson, 5 So.3d 615, 617-18 (Ala.Civ.App.2008). Moreover, “ ‘[t]he decision concerning the appropriate sanction for failure to comply with a pretrial order ... is within the trial court’s discretion,’ and we review such decisions to determine whether the trial court exceeded its discretion.” Cobb v. Fisher, 20 So.3d 1253, 1257 (Ala.2009) (quoting Vesta Fire Ins. Corp. v. Milam & Co. Constr., Inc., 901 So.2d 84, 105 (Ala.2004)).

Analysis

Smith argues that the trial court exceeded its discretion by dismissing his action and entering a judgment in favor of Davidson as a sanction because, Smith argues, the evidence in the record is not sufficient to support the trial court’s determination that he willfully failed to comply with Davidson’s discovery requests or the trial court’s orders. Rule 41(b) provides that “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant.” In addition, Rule 37(b)(2)(C), Ala. R. Civ.App., provides that if a party fails to obey an order to provide or permit discovery, the trial court may enter an order “dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.” The Alabama Supreme Court has stated that, for a trial court to enter an order dismissing a party’s action or to enter a default judgment against a party,

“[t]he [party’s] conduct must mandate dismissal. We have held that ‘willfulness’ on the part of the noncomplying party is a key factor supporting a dismissal. If one party has acted with willful and deliberate disregard of reasonable and necessary requests for the efficient administration of justice, the application of even so stringent a sanction as dismissal is justified and should not be disturbed.”

Iverson v. Xpert Tune, Inc., 553 So.2d 82, 87 (Ala.1989) (citations omitted).

‘“In Alabama, and many federal courts, the interest in disposing of the litigation on the merits is overcome and a dismissal may be granted when there is a clear record of delay, willful default or contumacious conduct by the plaintiff. Smith v. Wilcox County Bd. of Educ., 365 So.2d at [659] 661 [ (Ala.1978) ]. See, e.g., Boazman v. Econ. Laboratory, Inc., 537 F.2d 210 (5th Cir.1976); Pond v. Braniff Airwaysl Inc.], 453 F.2d 347 (5th Cir.1972). Willful default or conduct is a conscious or intentional failure to act. Welsh v. Automatic Poultry Feeder Co., 439 F.2d 95 (8th Cir.1971). “Willful” is used in contradistinction to accidental or involuntary noncompliance. No wrongful motive or intent is necessary to show willful conduct.’
“Selby v. Money, 403 So.2d 218, 220-21 (Ala.1981); see also Burton v. Allen, 628 So.2d 814, 815 (Ala.Civ.App.1993).”

HICA Educ. Loan Corp. v. Fielding, 953 So.2d 1261, 1263 (Ala.Civ.App.2006). Thus, in order to dismiss Smith’s action and to enter a judgment in favor of Davidson on his claims, the trial court must have had evidence from which it could infer that Smith’s failure to comply with Davidson’s discovery requests and the trial court’s orders was the result of Smith’s conscious or intentional failure to act, not his accidental or involuntary noncompliance.

Smith cites Weatherly v. Baptist Medical Center, 392 So.2d 832 (Ala.1981), and Johnson v. Citizens Bank, Inc., 778 So.2d 828 (Ala.Civ.App.2000), in support of his argument that his inability to produce the requested tax returns does not support the trial court’s determination that he acted willfully. However, both Weatherly and Johnson can be distinguished from this case.

In Weatherly, the circuit court dismissed the plaintiffs action for his failure to answer interrogatories. Weatherly, 392 So.2d at 834. The Alabama Supreme Court reversed, noting that “[f]rom all indications of the record, the 80-year-old plaintiff, housed in a nursing home and beset with infirmities, was physically and mentally unable to answer the interrogatories” and that “[t]he actions of the plaintiffs attorney indicate his good faith efforts to obtain the information sought by the defendant.” Id. at 837. The actions of the plaintiffs attorney had included seeking the assistance of the plaintiffs son, seeking to obtain the plaintiffs medical records to gather the requested information, and seeking an extension of time to answer the interrogatories. Id.

In Johnson, this court reversed the circuit court’s dismissal of the plaintiffs action when there had been a four-month delay in the plaintiffs answering the defendant’s interrogatories. Johnson, 778 So.2d at 831. This court, in holding that Johnson’s conduct had not been willful, noted:

“Johnson’s attorney was injured in a motor-vehicle accident and, because of his injuries, missed work. Johnson’s attorney had not been able to consistently communicate with Johnson, because of the accident and because of the nature of Johnson’s job. This is not a case where the plaintiff intentionally refused to answer interrogatories or failed to appear for a hearing. Additionally, Johnson’s attorney did file the answers before he knew that the defendants had asked for sanctions and before he knew that the case had been dismissed. Also, the defendants themselves delayed discovery when they cancelled depositions for a second time, on the day before the rescheduled depositions were to be held.”

Id. at 830-31.

In this case, Davidson first requested Smith’s personal federal and state income-tax returns in September 2007. Smith responded to the request, alleging that the tax returns were irrelevant and immaterial to the actions. Smith did not allege that the tax returns were unavailable. Davidson then sent Smith four letters over the course of the next year requesting that Smith produce the requested tax returns. Smith did not produce the returns, and he did not allege that the returns were unavailable. In November 2008, Davidson moved the trial court to compel Smith to produce the requested tax returns. Smith did not allege in response to Davidson’s motion to compel that the tax returns were unavailable. The trial court granted Davidson’s motion to compel, and in its order the trial court warned Smith that

“failure to supply full and complete information pertaining to the discovery requests may result in the dismissal of [his] claims in these actions and the awarding of a default judgment for the relief claimed by Mr. Davidson.”

However, Smith failed to produce the tax returns as required by the trial court’s order. After Smith failed to appear for the December 1, 2008, trial, the trial court entered a judgment in favor of Davidson on his claims against Smith and dismissed Smith’s claims. The trial court, on Smith’s motion, later vacated its judgment and, in its order, ordered Smith to comply with all Davidson’s outstanding discovery requests and to appear for a deposition by March 5, 2009. The trial court again warned Smith that Smith’s “failure to comply would result in a finding of willful and contumacious noncompliance and would subject Smith to further sanctions, including a Rule 41(b) dismissal.”

Smith appeared for the March 2009 deposition and produced his tax return for 2005 but not for any of the other requested years. In his deposition, Smith alleged for the first time — more than one and a half years after the time Davidson first requested Smith’s tax returns — that the remaining tax returns were unavailable.

There is no evidence in the record indicating that Smith had made good-faith efforts to comply with Davidson’s discovery requests or the trial court’s orders to produce the requested tax returns. There is also no evidence indicating that Smith had ever applied for an extension of time to produce the tax returns or that he had moved the trial court for a protective order. Moreover, Smith waited for a year and a half before first alleging that some of the tax returns were unavailable. This case does not present a situation similar to the one in Weatherly, in which there was evidence of sincere, albeit unsuccessful, attempts to provide the requested information to the requesting party. Nor is there evidence in the record, as there was in Weatherly and Johnson, indicating that Smith or Smith’s attorney suffered from prolonged physical or mental infirmities to the extent that it would have prevented them from either producing the requested tax returns or alleging, at a much earlier date, that the tax returns were unavailable.

Based on Smith’s repeated failure to comply with Davidson’s discovery requests and the trial court’s orders and the lack of evidence demonstrating that Smith made any good faith efforts to comply, the trial court could have determined that Smith had willfully, as opposed to accidentally or involuntary, failed to comply with Davidson’s discovery requests and the trial court’s repeated orders to produce his tax returns. Moreover, the trial court had repeatedly warned Smith that Smith’s failure to comply would result in the dismissal of his case and a judgment in favor of Davidson. Thus, it was within the trial court’s discretion to dismiss Smith’s claims and to enter a judgment against Smith in Davidson’s action. See Tri-Shelters, Inc. v. A.G. Gaston Constr. Co., 622 So.2d 329, 330 (Ala.1993) (affirming a trial court’s default judgment as a sanction for a party’s willful failure to answer interrogatories), and Neal v. American Tel. and Tel. Co., 454 So.2d 975, 977 (Ala.1984) (affirming a trial court’s dismissal of an action as a sanction for a party’s willful failure to attend a deposition).

The Alabama Supreme Court has “stressed the great deference afforded a trial court’s imposition of sanctions for a willful failure to respond to discovery requests.” Tri-Shelters, Inc., 622 So.2d at 330 (citing Napier v. McDougal, 601 So.2d 446 (Ala.1992)). Because there is evidence in the record to support the trial court’s determination that Smith’s failure to comply with Davidson’s discovery requests and the trial court’s orders was willful, we will not disturb the trial court’s judgment on appeal.

AFFIRMED.

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

      . Kimberly Cummings and Grown Folks Huntsville, Inc., were also named as plaintiffs in Smith’s action and as defendants in Davidson's action. Cummings has not appealed from the trial court’s judgment. Davidson moved to dismiss Grown Folks’s appeal because Smith, acting pro se, was not authorized to represent Grown Folks. This court granted Davidson’s motion and dismissed Grown Folks’s appeal. See Stage Door Dev., Inc. v. Broadcast Music, Inc., 698 So.2d 787, 787 (Ala.Civ.App.1997) ("One who is not an attorney may not appear as an advocate on behalf of a corporation.”).

      . The trial court amended its judgment on April 3, 2009, to correct a clerical error concerning the date of its previous judgment. See Rule 60(a), Ala. R. Civ. P.


author: PITTMAN, Judge.

text:
    Joel Lynn SUMMERS v. Cayce Lane SUMMERS.
    2080457.
    Court of Civil Appeals of Alabama.
    April 30, 2010.
    Rehearing Denied Aug. 6, 2010.
    Certiorari Denied Sept. 10, 2010 Alabama Supreme Court 1091584.

      Lindsey Mussleman Davis of Holt, Mus-sleman, Kelley & Morgan, Florence, for appellant.
    Cindy S. Schuessler, Florence, for appel-lee.
   PITTMAN, Judge.

Joel Lynn Summers (“the father”) appeals from a judgment of the Lauderdale Circuit Court that divorced him from Cayce Lane Summers (“the mother”), ordered him to pay $760 per month as child support, awarded the mother primary physical custody of the child born of the marriage, fashioned a division of the couple’s marital assets, and declined to sanction the mother in response to the father’s allegations that she suborned perjury during trial. We affirm in part, reverse in part, and remand with instructions.

The record shows that the parties married in 2000 after having lived together for approximately two years. In 2007, the father filed simultaneously a petition for protection from abuse and a complaint in which he sought a divorce, temporary custody of the parties’ minor child pending a hearing, and an equitable division of the marital estate. After several procedural delays, the case was tried in 2008 on one day in June, two days in August, and one day in November. That trial featured the testimony of the mother, the father, relatives of both parties, and a psychiatrist who had treated the mother. The trial court entered its judgment in December 2008 and denied the father’s postjudgment motion in January 2009, after which the father timely appealed to this court.

The father asserts four primary contentions on appeal, the first being that the trial court erred in failing to sanction the mother for her alleged subornation of perjured testimony. At the June hearing, a witness called by the mother testified that, within the first few years after the parties were married, the father had given the witness cocaine in exchange for sexual favors. In rebuttal, the father brought to the August hearings his own witness, a private detective he had hired to gather information about the mother’s witness. That detective produced at trial a tape recording on which the mother’s witness could be heard admitting to having testified falsely in this case in exchange for money at the mother’s request. The father also adduced an unverified, handwritten document purporting to be the witness’s formal confession of his perjury; the document described an “older, dark-haired” woman as the one who had paid the witness. However, the father made no attempt to adduce evidence showing that the mother (who, incidentally, has blonde hair) knew that the testimony was false when given, much less demonstrating that the mother suborned the allegedly perjured testimony. Given the evidence before it, the trial court had no logical basis for deciding whether the witness’s testimony, the witness’s audiotaped claim, the unverified “confession,” or none of them, represented the truth.

As the father notes, perjury and the subornation of perjury are crimes in Alabama, see Ala. Code 1975, §§ 13A-2-23 and 13A-10-101 et seq. However, the determination whether a party is due to be sanctioned is within the discretion of the trial court, Shonkwiler v. Kriska, 780 So.2d 703, 706 (Ala.Civ.App.2000), and a party can be punished for criminal contempt of court in the manner sought by the father “only upon an adjudication based upon proof of guilt beyond a reasonable doubt.” Id. Given the equivocal evidence presented to the trial court, we cannot conclude that the trial court acted outside its discretion by failing to sanction the mother for subornation of perjury in its final judgment.

The father’s second contention is that the trial court erred in awarding custody of the parties’ minor child to the mother in view of the “best interests” test, the mother’s lengthy and freely admitted history of substance abuse and mental-health problems, the mother’s alleged procurement of perjured testimony (which we have already discussed), and the issuance of a protection order entered against the mother earlier in the proceedings. The mother admitted that she had taken a variety of prescribed painkillers and antidepressants as well as illegal drugs beginning in her teen years; that drug abuse persisted through two miscarried pregnancies during the parties’ marriage up to the time she became pregnant with the child whose custody is at issue in this appeal. Aside from those admissions, pertinent evidence was provided primarily in the form of trial testimony in which the mother and the father flatly contradicted each other’s accounts in large measure.

Our standard of review as to the trial court’s custody determination is deferential:

“ ‘A trial court’s custody determination following the presentation of ore tenus evidence is presumed correct, and that judgment will not be set aside on appeal absent a finding that the trial court abused its discretion or that its determination is so unsupported by the evidence as to be plainly and palpably wrong.’ Steed v. Steed, 877 So.2d 602, 604 (Ala.Civ.App.2003). ‘This court may not substitute its judgment for that of the trial court.’ Somers v. McCoy, 777 So.2d 141, 142 (Ala.Civ.App.2000). ‘The controlling consideration in child-custody matters is always the best interests of the child.’ Patrick v. Williams, 952 So.2d 1131, 1140 (Ala.Civ.App.2006).”

McCartney v. McCartney, 11 So.3d 213, 220-21 (Ala.Civ.App.2007). Moreover, when a trial court hears conflicting testimony, we must review the evidence in a light that favors the prevailing party. McClellan v. McClellan, 959 So.2d 658, 661 (Ala.Civ.App.2006).

The factors the trial courts must consider in determining the best interests of a child are many; they include, but are not limited to, the child’s needs; the home environments offered by the parties; the characteristics of the parties, including their character and mental health; the relationships between each parent and the child; and “any other relevant matter the evidence may disclose.” Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981). Finally, when the trial court does not provide specific findings of fact, as in this case, we will assume that the trial court made those findings that would be necessary to support its judgment so long as such findings would not be clearly erroneous. See, e.g., Kelly v. Kelly, 981 So.2d 423, 426 (Ala.Civ.App.2007).

Aside from the mother’s admitted past problems with drugs and depression, nearly every factor brought into evidence that the trial court might have weighed in making its custody determination was presented in the form of disputed testimony. The father testified, and the mother admitted, to her having had flares of temper in years past that might have been caused by her prescription drugs. The mother testified, however, that she had improved, and she added that the father had been subject to violent outbursts as well. Each party accused the other of domestic violence, drug or alcohol problems, and other incidents of bad conduct.

Both parents, and family members called as witnesses by both parents, testified that the parents were loving and attentive toward the child. The mother testified that she had essentially conquered her problems with prescription drugs, and at the time of trial she was attending college in order to improve her earning capacity. The father was earning over $60,000 per year, but he admitted that he often worked 6 10-hour days per week, limiting the time he could spend with the child.

With respect to the protection order entered against the mother early in these proceedings, the circumstances accompanying the issuing of that order would have been another factor for the trial court to consider in its custody determination. The sharp conflicts in the parties’ testimony made the trial court’s task a pure matter of judging the credibility of witnesses, because the mother and the father contradicted each other as to which party presented the greater threat of domestic violence. In that regard, the father’s own representations to the court may have influenced the trial court’s estimation of his credibility. In applying for an ex parte protection-from-abuse order, the father filed a completed “Protection from Abuse Statistic Form” on which he alleged that there were “pending criminal charges related to this action” (emphasis added). In fact, the pending criminal charges were filed by the father’s sister in connection with a flstfight that the sister later admitted to having initiated with the mother. Later, in making an accusation that the mother had “stabbed” the father in the leg with a knife, in documents filed with the court and in testimony, the father alternately referred to the incident as a “stabbing” and as her having thrown a knife that had stuck in his leg, but he never attempted to show the presence of a bodily scar or evidence of an attempt to seek first aid. Further, and perhaps most significantly, the father had contacted the local Department of Human Resources (“DHR”) and caused them to investigate whether the mother was an unfit parent. Upon completion of its investigation, DHR determined that no intervention was indicated.

It is the province of the trial courts to estimate the credibility of witnesses, and if a trial court concludes that a witness was willfully untruthful, that court may disregard any or all of that witness’s testimony. Cochran v. Cochran, 5 So.3d 1220, 1233-34 (Ala.2008). Further, the trial court’s findings of fact will not be disturbed if the judgment based on the findings is supported by the evidence. A.M. v. J.S., 46 So.3d 957, 965 (Ala.Civ.App.2009). The evidence in the record, if viewed in a light favoring the mother, supports the trial court’s custody determination in this case. Given the deferential standard that applies to our review, we cannot reverse that determination.

The father also contends that the trial court erred in its property division. The trial court awarded the mother all of the personal property she requested, including items the father considered “disputed.” Further, the trial court awarded the mother a parcel of undeveloped real property unencumbered by a mortgage and awarded the father the marital residence, which is encumbered by its own mortgage debt as well as by the remaining debt on the undeveloped property awarded to the mother. The father had owned the residence for several years preceding the marriage, and he purchased the undeveloped property during the marriage. The father asserts that, on balance, the trial court’s division of property was inequitable.

The standard of appellate review of property determinations in divorce cases is also deferential. A trial court’s judgment regarding the division of property based on evidence presented ore tenus is presumed correct. See, e.g., Jenkins v. Jenkins, 781 So.2d 986, 988 (Ala.Civ.App.2000). Property-division issues are within the trial court’s broad discretion, and a judgment must be plainly and palpably outside the scope of that discretion before the judgment can be disturbed on appeal. McClelland v. McClelland, 841 So.2d 1264, 1271 (Ala.Civ.App.2002) (citing cases). Further,

“[e]ach case is decided on its own peculiar facts and circumstances. Criteria which should be considered by the trial court when awarding alimony and dividing property include the length of the parties’ marriage, their ages, health, station in life, and future prospects; the source, value, and type of property owned; the standard of living to which the parties have become accustomed during the marriage and the potential for maintaining that standard; and, in appropriate situations, the conduct of the parties with reference to the cause of divorce.”

Currie v. Currie, 550 So.2d 423, 425 (Ala.Civ.App.1989). Ultimately, “ ‘ “[property divisions are not required to be equal, but must be equitable in light of the evidence, and the determination as to what is equitable rests within the sound discretion of the trial court.” ’ ” Ex parte Drummond, 785 So.2d 358, 361 (Ala.2000) (quoting Morgan v. Morgan, 686 So.2d 308, 310 (Ala.Civ.App.1996), quoting in turn Duckett v. Duckett, 669 So.2d 195, 197 (Ala.Civ.App.1995)). And, as noted above, when the trial court is presented with conflicting ore tenus evidence, as it was in this case, “we must ‘ “ ‘view the evidence in a light most favorable to the prevailing party.’ ” ’ ” McClellan, 959 So.2d at 661 (quoting Diggs v. Diggs, 910 So.2d 1274, 1275 (Ala.Civ.App.2005), quoting in turn other cases).

In this case, the mother had not been employed outside the home since giving birth to the couple’s child, and at the time of trial she was only beginning to develop job skills. At the same time, the trial court heard disputed testimony tending to prove that, at various times between the father’s initiation of these proceedings and the time of trial, the father had harassed the mother in various ways, including allegedly killing her dogs. The father’s earning capacity, which was substantial, was demonstrated in his own exhibits. Assuming, as we must, that the trial court’s determination of credibility favored the mother, we cannot conclude that the trial court’s property division in this case was plainly and palpably outside the scope of the trial court’s discretion.

Finally, the father contends that the trial court erred in its calculation of child support. The trial court ordered the father to pay $760 per month as child support, retroactive to the date the father initially filed his complaint for a divorce. Since the father had been paying less than that amount from the time the parties had separated, the trial court determined that the father owed the mother an arrearage of $3,510 that had accrued at the time the judgment was entered. The trial court did not provide any findings of fact as to child support in its judgment, nor did the trial court refer to Rule 32, Ala. R. Jud. Admin., or indicate how it had calculated its award of child support.

“We have routinely reversed judgments based upon failures by trial judges to complete CS-42 forms when we cannot discern the basis for [a] child-support award from the record.” Farnell v. Farnell, 3 So.3d 203, 206 (Ala.Civ.App.2008). A trial court may deviate from the guidelines of Rule 32 only if that court makes written findings of fact, based on evidence presented to it, to support the deviation. Id. In this case, the documentary evidence as to the father’s earnings consisted of, among other things, his most recent payroll notice and a Form CS-42 he had completed. The father’s CS^2 form suggested an annual income of $60,000, while the payroll notice suggested an annual income potential of nearly $80,000, based on hourly earnings and overtime indicated in that payroll notice.

The amount at which the trial court arrived — $760—would be consistent with Rule 32, Ala. R. Jud. Admin., based the father’s claim of income near $60,000, if the trial court had used the guidelines under that rule that went into effect for cases filed after January 1, 2009. Under the preface relating to the scope of that rule as amended, however, this case is governed by Rule 32 as it read immediately before the 2009 amendment. Under the earlier version of Rule 32 that applies to this case and the guidelines chart then in effect, if the father’s income was $60,000, his child-support obligation would be $652, the amount shown in his proffered CS-42 form. If the trial court imputed a higher income to the father, his child-support obligation under the version of Rule 32 that applies in this case could range up to $804. Clearly, we have insufficient information in the record to enable us to determine how the trial court arrived at its child-support award, and we must reverse the judgment as to that award and remand this case for the trial court to provide findings of fact or its computations that support the child-support obligation it has determined. Because the trial court’s determination of the father’s child-support arrearage was based on the $760 monthly child-support award, that aspect of its judgment is also reversed and remanded for further proceedings.

Based on the facts and authorities discussed above, the trial court’s judgment is affirmed as to its custody determination, its division of marital property, and as to the matter of the mother’s alleged subornation of perjury. As to the trial court’s award of child support, which of necessity determines the child-support arrearage to be charged to the father, the judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

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


text:
    Jim KING d/b/a King Home Services v. Roseann RIEDL and Bryan A. Riedl.
    2081172.
    Court of Civil Appeals of Alabama.
    Aug. 6, 2010.
    Rehearing Denied Sept. 24, 2010.

      Cheryl Baswell-Guthrie of Baswell-Guthrie, P.C., Huntsville, for appellant.
    Charles A. Ray IV of Maples & Ray, P.C., Huntsville, for appellees.
   THOMAS, Judge.

This is an appeal of a summary judgment entered by the Madison Circuit Court concerning the application of § 34-14A-14, Ala.Code 1975. We affirm.

Facts and Procedural History

Roseann Riedl and Bryan A. Riedl (“the Riedls”) entered into a contract with Jim King d/b/a King Home Services (“King”) to make improvements to the Riedls’ house in Brownsboro. The improvements entailed work throughout the entire property, including work to the yard and demolition and installation work to the house. The Riedls paid King a total of $14,075 for some, but not all, of the work specified in the contract. King was not at any time a licensee of the Alabama Home Builders Licensure Board.

The Riedls were unsatisfied with the work contracted for and performed by King. Consequently, Roseann filed a small-claims complaint in the small-claims division of the Madison District Court, alleging that King had damaged her house (“the district-court action”). Roseann sought compensation for repair work performed by other parties. In response, King filed an action in the Madison Circuit Court against the Riedls, alleging claims of breach of contract, unjust enrichment, restitution, and misrepresentation (“the circuit-court action”). In the district court, King requested that the district-court action be consolidated with the circuit-court action. After the Riedls also requested consolidation, the district-court action was transferred to the circuit court, and the two actions were consolidated.

The Riedls filed a motion for a summary judgment in the circuit court, asserting that King lacked standing to institute the circuit-court action because he was an unlicensed home builder. In response, King claimed that he did not need a license in order to enforce his contract with the Riedls. After a hearing, the circuit court entered a summary judgment in favor of the Riedls, dismissing all King’s claims against them. As to the Riedls’ remaining claims against King, the circuit court transferred those claims back to the district court because they were for an amount less than $3,000. King filed an appeal of the summary judgment entered in the circuit-court action, which was transferred from our supreme court to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Issues

King presents two issues on appeal: whether King violated § 34-14A-14 by pei-forming more than $10,000 worth of work without a residential home builders’ license and whether the summary judgment as to King’s noncontractual claims was proper.

Standard of Review

“An order granting or denying a summary judgment is reviewed de novo, applying the same standard as the trial court applied. American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 811 (Ala.2004). In addition, ‘[t]his court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.’ Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003). Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So.2d 812, 815 (Ala.1995).”

Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1034-35 (Ala.2005).

Analysis

I. Breach-of-Contract Claim

Section 34-14A-5, Ala.Code 1975, requires all home builders to be licensed by the Alabama Home Builders Licensure Board. A residential home builder is defined by § 34-14A-2(10), Ala.Code 1975, as follows:

“(10) Residential home builder. One who constructs a residence or structure for sale or who, for a fixed price, commission, fee, or wage, undertakes or offers to undertake the construction or superintending of the construction, or who manages, supervises, assists, or provides consultation to a homeowner regarding the construction or superintending of the construction, of any residence or structure which is not over three floors in height and which does not have more than four units in an apartment complex, or the repair, improvement, or reimprovement thereof, to be used by another as a residence when the cost of the undertaking exceeds ten thousand dollars ($10,000). . Nothing herein shall prevent any person from performing these acts on his or her own residence or on his or her other real estate holdings. Anyone who engages or offers to engage in such undertaking in this state shall be deemed to have engaged in the business of residential home building.”

(Emphasis added.) Thus, whether a license is required depends on the cost of the undertaking.

King argues that the cost of the undertaking in the present case was less than $10,000 because, he contends, work done to the Riedls’ porch, “doggie doors,” and fence should not be included in calculating the cost of the undertaking. King further argues that the Riedls had full control over the subcontractors and, thus, that he is exempted from obtaining a license by § 34-14A-6(5). Also, King contends that he did not have sufficient control over the subcontractors and materials for the amounts paid to those subcontractors and for those materials to contribute toward the cost of the undertaking. Finally, King argues that he was compensated for his work by periodic payments of less than $10,000 each, and, thus, he argues, he was not required to have a license.

Two of King’s arguments are raised for the first time on appeal: King’s argument that work done to the porch, “doggie doors,” and fence should be considered separately from work performed on the house in calculating the total cost of the undertaking and his argument that he did not have sufficient control over the subcontractors and, thus, falls within an exemption to the licensing scheme as outlined in § 34-14A-6(5). Arguments not presented to the trial court are not proper arguments for appeal. Crews v. McLing, 38 So.3d 688, 696 (Ala.2009); Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). Accordingly, we consider all the work performed by King to be work performed on a house, which requires a license if the cost of the undertaking is greater than $10,000.

King argues that there remains a genuine issue of fact regarding whether the cost of the undertaking was more than $10,000. The Riedls note that King’s admission that the costs of the undertaking exceeded $10,000 in his response to an interrogatory is in conflict with his affidavit filed in response to the Riedls’ motion for a summary judgment. King’s contradictory assertions in his response to an interrogatory and in his affidavit filed in response to the motion for a summary judgment do not create a genuine issue of a material fact regarding the cost of the undertaking. The Riedls’ seventh interrogatory to King stated:

“Regarding the contract alleged to have been breached by [the Riedls] within [King’s] Complaint, provide the total amount to be paid for said work and services under the terms of said contract, including any and all estimated or fixed costs for materials provided.”

King answered that the cost of the undertaking, under the terms of the contract, was “[i]n excess of $10,000.00.” However, King submitted affidavit testimony in opposition to the motion for a summary judgment that stated that “at no time was I contracted to receive in excess of $10,000.00 as payment for my services.” This contradiction cannot be used to create a genuine issue of material fact. Wilson v. Teng, 786 So.2d 485, 497 (Ala.2000) (“[Our supreme court] has held that ‘a party is not allowed to directly contradict prior sworn testimony to avoid the entry of a summary judgment.’ ” (quoting Continental Eagle Corp. v. Mokrzycki, 611 So.2d 313, 317 (Ala.1992))).

King further argues that his payments to subcontractors and for certain materials were under the control of the Riedls to an extent that those expenditures should not contribute to the cost of the undertaking. King relies on Dabbs v. Four Tees, Inc., 36 So.3d 542, 552 (Ala.Civ.App.2008), in which this court determined whether the cost of an undertaking should be reduced by the amount paid to other parties for the work performed. In so doing, the Dabbs court cited Thomas Learning Center, Inc. v. McGuirk, 766 So.2d 161 (Ala.Civ.App.1998), a case in which a plurality of this court determined that, “if the contractor retains control over subcontractors or over purchases passing through his accounts, then the owner’s payments for those expenditures add to the ‘cost of the undertaking.’ ” 766 So.2d at 168. We must therefore determine whether King presented substantial evidence demonstrating that he did not “re-taint ] control over subcontractors or over purchases passing through his accounts.” Id.

King argues on appeal that payments made through him for the countertop and carpet were ultimately controlled by the Riedls. Contrary to his argument on appeal, however, the evidence submitted in support of and in opposition to the motion for a summary judgment does not indicate that King was hired to install carpet or to install the countertop. King produced no evidence indicating that the payments he received were intended to pay for either of those tasks, or for the materials involved in those tasks. The evidence indicates that King provided “turn key” construction and supervision to the Riedls for an amount over $10,000.

The Riedls made periodic payments to King as he worked on the property, which, King contends, represent separate transactions. Thus, King argues, the contracted amount never exceeded $10,000. We have rejected this argument before, albeit in a case concerning a licensing statute pertaining to general contractors that is similar to § 34-14A-14. McGuirk, 766 So.2d at 164-65. In that case, a contractor attempted to classify his payment to his architect as a separate fee, which would lower the cost of the undertaking and exempt the contractor from the requirement to obtain a license. Id. This court rejected the argument by stating: “[A] contrary holding would encourage unscrupulous contractors to avoid the requirements of the licensing statute by designating payments to subcontractors and suppliers incident to ‘separate contracts.’ ” Id. at 169. Similarly, allowing King to avoid licensure requirements by classifying a series of periodic payments as pertaining to separate contracts would render the residential home builder licensing statute meaningless. Thus, we conclude that there is no genuine issue of material fact on this issue and that the cost of the undertaking was over $10,000.

King violated § 34-14A-14 because he performed work, under his direct control and supervision, for more than $10,000. A residential home builder who fails to maintain a license with the Alabama Home Builders Licensure Board is statutorily barred from bringing or maintaining “any action to enforce the provisions of any contract for residential home building which he or she entered into in violation of this chapter.” § 34-14A-14; Milloy v. Woods, 23 So.3d 48, 51-52 (Ala.Civ.App.2009) (stating that an unlicensed residential home builder cannot bring a breach-of-contract claim). King admitted that he was not a licensed residential home builder before, during, or after the construction work on the Riedls’ house. Furthermore, the cost of the undertaking was more than $10,000. Therefore, King violated § 34-14A-14, and, thus, he has no standing to bring his breach-of-contract claim.

II. Noncontractual Claims

Because King could not bring an action to enforce his contract with the Riedls, King cannot use other theories of recovery to circumvent § 34-14A-14. King asserted theories of recovery including unjust enrichment, restitution, and intentional and/or negligent misrepresentation. The issue whether an unlicensed home builder can sue based on theories other than breach of contract when all the claims arose from work performed in violation of § 34-14A-14 is one of first impression. However, there is caselaw disallowing, such claims in actions concerning the statutory licensing scheme pertaining to general contractors codified at § 34-8-1 et seq., Ala.Code 1975. Because the intent and design of those statutes are similar to the intent and design of the licensing statutes pertaining to residential home builders, we incorporate the reasoning of those cases into our analysis:

“Related claims based on causes of action other than contract, including negligence, also cannot be pursued if they arise out of the performance of the illegal contract. White v. Miller, [718 So.2d 88,] 90 [ (Ala.Civ.App.1998) ]; see also Architectural Graphics and Const. Services, Inc. v. Pitman, 417 So.2d 574, 576 (Ala.1982) (Tf a suit to enforce the contract is foreclosed to an unlicensed contractor, so must be a suit by the same unlicensed contractor to collect on a note secured by a mortgage given in consideration of that contract.’); Cochran v. Ozark Country Club, Inc., 339 So.2d 1023 (Ala.1976) (same for work, labor, and materials furnished); Tucker v. Trussville Convalescent Home, Inc., 289 Ala. 366, 267 So.2d 438 (1972) (same for an action to establish a mechanic’s lien).”

IPSCO Steel (Alabama), Inc. v. Kvaerner U.S., Inc., (No. Civ.A.01-0730-CG-C, May 25, 2005) (S.D.Ala.2005) (not reported in F.Supp.2d). This court has held that a “contractor cannot circumvent the licensing statute by asserting [alternative claims] when the facts surrounding his claims are grounded in contract.” White v. Miller, 718 So.2d 88, 90 (Ala.Civ.App.1998) (affirming a summary judgment in favor of a homeowner on fraud and deceit claims asserted by an unlicensed contractor). As explained in Architectural Graphics and Construction Services, Inc. v. Pitman, 417 So.2d 574, 576 (Ala.1982), this rule has prevented recovery in an action for work, labor, and materials furnished, in an action to establish a mechanic’s lien, and in an action based on a promissory note. King’s claims all arose from work he performed in violation of § 34-14A-14. Therefore, King cannot circumvent the purpose and intent of the statute by asserting noncontractual claims.

Conclusion

Because King contracted to perform work costing more than $10,000 without obtaining a license from the Alabama Home Builders Licensure Board, he cannot sue alleging breach of contract. Also, King cannot pursue his non-contractual claims because they arose out of the performance of the contract. Therefore, the decision of the circuit court is due to be affirmed.

AFFIRMED.

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

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

      . King argues that the circuit court improperly transferred the district-court action back to the district court. Section 12-12-31(a), Ala. Code 1975, gives the district court exclusive jurisdiction when the matter in controversy does not exceed $3,000. Although we are unsure whether the actions should have been initially consolidated in the circuit court, neither party argues that the circuit court lacked the authority to consolidate the actions. The claims asserted in district-court action, however, could not be litigated in the circuit court; the circuit court, therefore, properly transferred the district-court action back to the district court. § 12-11-9, Ala.Code 1975.