author: BRYAN, Judge.

text:
    Susie M. PRICE v. MACON COUNTY GREYHOUND PARK, INC.
    2090881.
    Court of Civil Appeals of Alabama.
    Aug. 19, 2011.
    Certiorari Denied Jan. 13, 2012 Alabama Supreme Court 1101427.
    James R. Bowles, Tallassee, for appellant.

      Fred D. Gray and Stanley F. Gray of Gray, Langford, Sapp, McGowan, Gray, Gray & Nathanson, P.C., Tuskegee, for appellee.
   On Application for Rehearing

BRYAN, Judge.

The opinion of January 21, 2011, is withdrawn, and the following is substituted therefor.

Susie M. Price (“Price”), the plaintiff below, appeals from a summary judgment in favor of Macon County Greyhound Park, Inc. (“the Park”), the defendant below. We affirm.

On November 29, 2007, Price sued the Park, alleging that, on April 9, 2007, while she was an invitee on the Park’s premises, she had fallen as a result of some debris on the Park’s asphalt driveway and had suffered injuries. Based on those allegations, she stated claims of negligence and wantonness. Answering, the Park denied liability and asserted as an affirmative defense that the debris that had caused Price to fall was open and obvious.

On July 17, 2009, the Park moved for a summary judgment. The Park asserted that it was entitled to a summary judgment with respect to Price’s negligence claim because, the Park said, (1) the evidence did not establish that the Park had actual or constructive notice of the presence of the debris that had caused Price to fall before she fell and (2) the evidence established that the presence of the debris was open and obvious. The Park asserted that it was entitled to a summary judgment with respect to Price’s wantonness claim because, the Park said, the evidence did not establish that the Park had acted or failed to act with knowledge of the conditions and with a consciousness that its acting or failing to act would likely or probably result in Price’s injury.

Opposing the summary-judgment motion, Price asserted (1) that the evidence did establish that the Park had actual or constructive notice of the presence of the debris before she fell; (2) that, in the alternative, the Park affirmatively created the hazard that caused Price to trip and fall and, therefore, is presumed as a matter of law to have had notice of the presence of the hazard; (3) that the evidence did not establish that the presence of the debris was open and obvious; and (4) that the evidence did establish that the Park had acted or failed to act with knowledge of the conditions and with a consciousness that its acting or failing to act would likely or probably result in Price’s injury. As evidentiary support for her opposition to the Park’s motion, Price relied on her deposition testimony and the affidavit of J. Victor Price.

Price, who was approximately 57 years old when the accident occurred, testified as follows. From 2004 until April 9, 2007, she played bingo at the Park seven days a week. On April 9, 2007, she drove herself and two friends, Patrice Satterwhite and Patricia Rushing, to the Park. They arrived at the Park at approximately 5:30 p.m. when it was still light outside. Price stopped her automobile in the valet-parking area, and she and her friends got out of Price’s automobile and walked from her automobile to the front entrance of the Park’s building. Price was aware that a portion of the Park’s building was being remodeled or constructed. Consequently, Price was careful to look at the ground to make sure she did not step on anything as she walked from her automobile to the front entrance. Walking from her automobile to the front entrance, she did not see anything on the ground that would cause someone to trip and fall. After entering the building, Price, Satterwhite, and Rushing played bingo for approximately three hours and then exited the front entrance of the Park’s building at approximately 8:30 p.m. when it was dark outside. The area outside the front entrance of the Park’s building is not well lighted. Price, Satter-white, and Rushing walked from the front entrance to the valet-parking area, along the same route they had earlier walked when they entered the front entrance from the valet-parking area, and got into Price’s automobile. Price did not have any problem walking from the front entrance to her automobile in the valet-parking area. After getting inside her automobile, Price could not find her cellular telephone, and Satterwhite went back inside the Park’s building to see if she could find it. Price then found her cellular telephone, and the valet-parking attendant told her that she “could pull over a little bit to go back in and get [Satterwhite].” “So [she] pulled [her automobile] over a little bit....” Price then got out of her automobile to go inside to tell Satterwhite that she had found her cellular telephone. Price walked from her automobile toward the front entrance on a route that was “a little bit different” from the route she had earlier walked from her car to the front entrance and from the front entrance to her car; however, she tripped and fell on the asphalt driveway before she reached the sidewalk in front of the front entrance. While she was on the ground, she saw some loose pieces of asphalt. The largest piece of loose asphalt was “three inches large” and the smallest was the size of “a big marble.”

Although the route she was walking when she fell was in an area that was not well lighted, Price was walking normally, instead of looking at the ground, when she fell “because [she] had already done that one time already ... the same afternoon,” “[s]o I wouldn’t be expecting anything to be on the ground.” Finally, Price testified as follows:

“Q. [BY THE PARK’S COUNSEL:] All right. Do you know whether or not Macon County Greyhound Park knew that this piece of gravel that you fell on was out there prior to the time that you fell on it?
“A. I don’t think so.
“Q. Okay.
“A. They usually had people out there cleaning that off.
“Q. All right. And so do you believe that if Macon County Greyhound Park knew that this gravel was out there that they would have cleaned it up?
“A. Yes, sir.”
The affidavit of J. Victor Price stated:
“My name is J. Victor Price and I am over the age of 19 years and a resident citizen of the State of Alabama. Over the past several years, I have been a frequent visitor to Macon County Greyhound Park in Shorter, Alabama. I know of my own personal knowledge that the casino at Macon County Greyhound Park was undergoing extensive construction and renovation in 2007, including the date of April 9, 2007. During this period of time, it was not unusual to see loose gravel, rocks and clumped asphalt in the area where the asphalt parking lot abuts the concrete apron near the main entrance to the casino.”

Following a hearing, the trial court entered an order granting the summary-judgment motion on February 18, 2010, without stating its rationale for that ruling. Price timely appealed to the supreme court, which transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

“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 a 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 872 [ (Ala.2001) ] (citations omitted), quoted in American Liberiy Ins. Co., 825 So.2d at 790.”

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

Price first argues that the trial court erred in granting the Park’s summary-judgment motion with respect to her negligence claim because, she says, (1) the evidence established that the Park had created the hazard that caused her to trip and fall and, therefore, is presumed as a matter of law to have had notice of the presence of that hazard and (2) the evidence did not establish that the presence of that hazard was open and obvious.

Price cites Denmark v. Mercantile Stores Co., 844 So.2d 1189 (Ala.2002), in support of her argument that the Park is presumed as a matter of law to have had notice of the presence of the hazard that caused her to trip and fall. In Denmark, Genevieve Denmark, while a customer in a store owned by Mercantile Stores Co. (“Mercantile”), tripped over a roll of garment bags located on the floor in a display area of the store. The evidence indicated “that the roll of garment bags over which Denmark tripped was under the custody and control of Mercantile and had been placed in the display area by a Mercantile employee.” 844 So.2d at 1194 (some emphasis in original; some emphasis added). Reversing a summary judgment in favor of Mercantile, the supreme court stated:

“A store owner’s duty is well-established. That duty is ‘to exercise reasonable care to provide and maintain reasonably safe premises for the use of his customers.’ Maddox v. K-Mari Corp., 565 So.2d 14, 16 (Ala.1990). Consequently, injured ‘plaintiffs must prove that the injury was proximately caused by the negligence of [the store owner] or one of its servants or employees. Actual or constructive notice of the presence of the substance [or instrumentality that caused the injury] must be proven before [the store owner] can be held responsible for the injury.’ Id. Where, however, ‘ “ ‘the defendant or his employees have affirmatively created the dangerous condition, [the] plaintiff need not introduce evidence that [the] defendant had actual or constructive knowledge of the hazard. Under such circumstances, the courts presume notice.’ ” ’ Wal-Mart Stores, Inc. v. Rolin, 813 So.2d 861, 864 (Ala.2001) (emphasis added) (quoting Wal-Mart Stores, Inc. v. McClinton, 631 So.2d 232, 234 (Ala.1993), quoting in turn Joseph A. Page, The Law of Premises Liability § 7.11 at 169 (2d ed.1988)). See also Mims v. Jack’s Restaurant, 565 So.2d 609 (Ala.1990). This Court has held that where a shopper trips over merchandise protruding from a box that is part of a ‘barbeque grill display’ evidently arranged by store employees, the store owner’s knowledge of a hazardous condition is presumed. Rolin, 813 So.2d at 865.”

844 So.2d at 1192.

However, a significant distinction exists between Denmark and the case now before us. In Denmark, there was evidence indicating that the hazard that caused the plaintiffs fall, i.e., the roll of garment bags, was in the custody and control of the store and had been placed in the location where the plaintiff tripped over it by a store employee. In the case now before us, however, there is no comparable evidence establishing that the Park or someone acting under the direction and control of the Park created the hazard that caused Price’s fall. J. Victor Price’s testimony that it was not unusual to see clumped asphalt in the parking lot while the construction or remodeling work was being performed does not establish that the construction or remodeling work produced the clumped asphalt. Neither J. Victor Price nor any other witness testified that he or she had observed the construction workers tearing up the existing asphalt driveway or producing loose pieces of asphalt in any other way. For all that appears in the record, the loose pieces of asphalt that caused Price to fall could have resulted from the wear and tear on the driveway caused by traffic driving over it. Moreover, even if there was evidence indicating that the construction workers were tearing up the asphalt driveway or producing loose pieces of asphalt in some other way, there is no evidence indicating that the construction workers or anyone else acting under the direction and control of the Park placed the loose pieces of asphalt in the particular location where Price tripped and fell over them. “[T]he doctrine of res ipsa loquitur is not applicable to slip and fall cases.” Riverview Reg’l Med. Ctr., Inc. v. Williams, 667 So.2d 46, 48 (Ala.1995). Consequently, evidence establishing that Price tripped and fell over the loose pieces of asphalt on the Park’s premises does not establish that the Park or someone acting under the direction and control of the Park placed them in the particular location where she tripped and fell over them. See Dolgencorp, Inc. v. Hall, 890 So.2d 98 (Ala.2003). In Dolgencorp, a customer of a store was injured when the contents of a bottle of liquid drain cleaner spilled onto her face from a shelf in the store. After the accident, a bottle of liquid drain cleaner was found lying on the shelf; the top to the bottle was on the shelf beside the bottle. The shelf where the bottle was found was not the shelf where liquid drain cleaners were ordinarily kept. There was no direct evidence indicating that the store’s employees had placed the bottle on the shelf where it was found. The supreme court held that the mere fact that the bottle was on the shelf was insufficient to establish that the store’s employees had placed it there or knew that it was there:

“[T]he bottle of liquid drain cleaner was clearly not where it should have been. However, there is no evidence indicating that a store employee put the bottle on a high shelf next to the musical instruments or that an employee knew that the liquid drain cleaner was misshelved and that the cap to the bottle was loose or had been removed. Such a conclusion would be mere speculation and therefore insufficient to show negligence on the part of [the store]. Logan [v. Winn-Dixie, 594 So.2d 83 (Ala.1992) ].”

890 So.2d at 102. Accordingly, we conclude that Price failed to produce substantial evidence indicating that the Park created the hazard that caused her to fall and thus failed to make a prima facie showing that the Park is presumed to have had notice of that hazard.

Because she did not prove that the Park created the hazard that caused her to fall, Price was required to produce substantial evidence indicating that the Park had actual or constructive notice of that hazard before she fell. See Denmark, supra. However, Price has not argued on appeal that she produced such evidence. Consequently, she has waived that argument, see Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”), and the summary judgment with respect to Price’s negligence claim is due to be affirmed on the ground that she failed to produce substantial evidence indicating that the Park had actual or constructive notice of the hazard that caused her to fall. Moreover, because the summary judgment is due to be affirmed on that ground, Price’s argument that the hazard that caused her to fall was not open and obvious is moot. Accordingly, we affirm the summary judgment in favor of the Park with respect to Price’s negligence claim.

Price next argues that the trial court erred in granting the Park’s summary-judgment motion with respect to her wantonness claim. In Ex parte Essary, 992 So.2d 5, 9 (Ala.2007), the supreme court stated:

“ ‘Wantonness’ has been defined by this Court as the conscious doing of some act or the omission of some duty while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result. Bozeman v. Central Bank of the South, 646 So.2d 601 (Ala. 1994). To constitute wantonness, it is not necessary that the actor know that a person is within the zone made dangerous by his conduct; it is enough that he knows that a strong possibility exists that others may rightfully come within that zone. Joseph v. Staggs, 519 So.2d 952, 954 (Ala.1988). Also, it is not essential that the actor should have entertained a specific design or intent to injure the plaintiff, only that the actor is ‘conscious’ that injury will likely or probably result from his actions. Id. ‘Conscious’ has been defined as ‘ “perceiving, apprehending, or noticing with a degree of controlled thought or observation: capable of or marked by thought, will, design, or perception” ’; ‘ “having an awareness of one’s own existence, sensations, and thoughts, and of one’s environment; capable of complex response to environment; deliberate.” ’ Berry v. Fife, 590 So.2d 884, 885 (Ala.1991) (quoting Webster’s New Collegiate Dictionary 239 (1981) and The American Heritage Dictionary of the English Language 283 (1969), respectively).”

In the case now before us, Price did not present any evidence from which it can be inferred that the Park knew of the existing conditions, i.e., the presence of the particular debris that caused Price to fall in the location where she fell. Consequently, the trial court did not err in granting the Park’s summary-judgment motion with respect to Price’s wantonness claim.

APPLICATION GRANTED; OPINION OF JANUARY 21, 2011, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

      . Price’s principal brief states:
      "While it is true that Ms. Satterwhite noted that there was trash around the entrance when they arrived and exited the main entrance from the valet parking area, this was not the same place where Ms. Price fell and was a little further down."

      (Emphasis added.)


source: Caselaw Access Project

author: PER CURIAM. THOMAS, Judge,

license: Public Domain

text:
    Otha STEELE and Harold E. Steele v. Hugh O’NEAL, Lonnie Hill, and Anita Hill.
    2100259.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2011.
    Certiorari Denied Jan. 13, 2012 Alabama Supreme Court 1101451.

      Jerry Wayne Baker, Jr., Albertville, for appellants.

      John F. Porter III, Scottsboro, for ap-pellees.
   PER CURIAM.

Otha Steele and Harold E. Steele (“the Steeles”) appeal from a judgment of the Jackson Circuit Court granting Hugh O’Neal, Lonnie Hill, and Anita Hill a private easement by prescription over an unpaved roadway (“the roadway”) that crosses the Steeles’ property and denying the Steeles the monetary damages they had requested.

The Steeles own a parcel of property in Jackson County, and the roadway crosses a portion of that property. O’Neal owns a parcel of property that abuts the Steeles’ property; his only means of vehicular access to this property is by means of the roadway. The Hills own a parcel of property that adjoins O’Neal’s property; like O’Neal, the Hills can only access their property by the roadway.

On November 6, 2002, O’Neal filed a complaint alleging that Otha Steele and her husband, James Steele, had interfered with his use of the roadway. O’Neal requested a temporary restraining order (“TRO”), a preliminary injunction, and a permanent injunction enjoining Otha and James from interfering with his use of the roadway. In his complaint, O’Neal presented alternate theories to support his request for injunctive relief: (1) that the roadway was a public road and (2) that he had acquired a private easement by prescription by virtue of his and his predecessors in title’s use of the roadway for more than 20 years. On November 6, 2002, the trial court entered the TRO and set the matter for a hearing on November 18, 2002. After the hearing, the trial court entered a preliminary injunction enjoining Otha and James, or anyone acting on their behalf, from interfering with O’Neal’s use of the roadway and allowed O’Neal to erect a gate across the roadway. O’Neal was required to provide Otha and James with a key to the gate. The trial court also allowed O’Neal to use the roadway until January 1, 2003, to remove timber harvested on his property; however, O’Neal was responsible for repairing the roadway to restore it to the condition it was in before the timber was removed. On January 22, 2003, Lonnie Hill moved to intervene in the action, asserting that he was an adjoining landowner and that he had an interest in the use of the roadway.

Otha and James answered O’Neal’s complaint, denying all of its material allegations. On May 5, 2003, Otha and James filed a counterclaim against O’Neal and various fictitiously named defendants, claiming that O’Neal and others had trespassed on their property, had damaged timber, had caused damage to the land and roadways by flooding and erosion, and had diminished the value of the Steeles’ property. Otha and James requested $1 million in compensatory and punitive damages. O’Neal answered the counterclaim, denying all of its material allegations.

Approximately one year later, on May 18, 2004, Otha and James filed a third-party complaint against Lonnie Hill’s wife, Anita, and Mark Henley alleging that O’Neal, the Hills, and Henley had trespassed on their property; had damaged their land, fences, timber, roadway, and bridge; and had removed a gate that they had erected on the property. Otha and James again requested compensatory and punitive damages. They also filed an amended counterclaim on May 18, 2004, alleging that O’Neal, the Hills, and Henley had violated the trial court’s November 18, 2002, order by continuing to trespass on their property and had caused further damage to the property. On the same date, Otha filed a suggestion of death for James.

On January 7, 2005, Harold E. Steele, James and Otha’s son, filed a motion to intervene, alleging that he was a co-owner of the property across which ran the roadway. The trial court granted Harold’s motion on January 11, 2005. Harold answered O’Neal’s complaint, denying all of its material allegations. Harold also adopted the claims asserted by Otha in her counterclaim and third-party complaint.

On January 15, 2005, O’Neal and the Hills filed an amended complaint, claiming that the Steeles had violated the trial court’s preliminary injunction by interfering with O’Neal’s right to use the roadway to access his property; the Hills asserted that the Steeles had also interfered with their use of the roadway. O’Neal and the Hills requested that the trial court hold the Steeles in contempt for their violation of the preliminary injunction. O’Neal and the Hills also filed a motion seeking to broaden the scope of the preliminary injunction to explicitly apply to the Hills and Harold. The trial court, over the Steeles’ objection, granted that motion on February 4, 2005.

The trial of the matter took place on February 28, 2006. The trial court heard ore tenus evidence from numerous witnesses regarding the character and use of the roadway. The evidence adduced at trial tended to show the following.

The roadway, which is unpaved, has been in existence since at least 1911. Witnesses testified that in 1968, a public bridge on the main road over Big Coon Creek washed out. While that bridge was impassable, six or seven families used the roadway and its bridge to access their properties. A school bus and a mail-delivery vehicle also traveled on the roadway while the bridge was out. Larry Glass, who does not own any property accessible by the roadway, testified that in the 1970s, he often used the roadway to take his sons fishing.

J.D. Phillips; who formerly owned the property owned by O’Neal and the Hills, was unable to attend the trial because of ill health, and his deposition testimony was submitted into evidence. Phillips said that in 1972, he purchased the land that included the parcels now owned by the Hills and O’Neal. Phillips testified that he used the roadway crossing the Steeles’ property for at least 12 years to access his property. He said that he also used the roadway to haul timber from his property to the county road that intersects with the roadway. Phillips also said that he made improvements to the roadway.

Harold Steele said that his parents moved to their property in 1984, but it had been in the family for decades. Also in 1984, the Hills purchased their parcel of property from Phillips. Phillips took Lonnie Hill to the property by way of the roadway, crossing the Steeles’ property. Phillips told Hill that the roadway was the only way to access his property. Since 1984, the Hills have continuously used the roadway to access their property. They eventually built a cabin on the property and used the roadway to bring building materials to the site. In 1984, Lonnie Hill said, he installed a gate at the roadway’s entrance from County Road 53. He testified that, at that time, he gave James Steele a lock and key to the gate. Harold testified that from 1970 until Hill put up the gate, there had been a cable across the roadway’s entrance.

Larry Cheatwood and Geraldine Cheat-wood purchased a parcel of property from Phillips, and O’Neal purchased that parcel from the Cheatwoods in 1993. O’Neal testified that he used the roadway to access his property for hunting, harvesting timber, and “rig racing.” Hill provided O’Neal with a key to the gate at the. roadway’s entrance. O’Neal said that the utility company also had a key to the gate so that it could reach the Hills’ property to read the electric meter at the Hills’ cabin each month.

In 2002, O’Neal hired Thompson & Har-wood (“Thompson”) to harvest the timber on his property. To facilitate the hauling of timber, Thompson cleared the roadway, added rock to part of the roadway, and “smoothed it out” to make it passable for its logging trucks. No one at Thompson had any conversations with Otha, James, or Harold before making the improvements to the roadway. Todd Langston, who worked for Thompson at the time the improvements were made, testified that the only way to access O’Neal’s property was by the roadway.

When the timber harvesting began, the Hills and O’Neal began having trouble with Otha and James concerning the use of the roadway. James “reconfigured” the lock on the gate so that Thompson workers could not unlock it to access the roadway. O’Neal testified that he and Otha and James had agreed to allow the gate to stay open so that the timber harvesters could come and go. O’Neal also said that Thompson agreed to repair any damage that might occur on the roadway’s bridge and to grade the roadway. Despite the agreement, Otha and James continued to attempt to deny O’Neal, the Hills, and Thompson’s employees access to the roadway. Tacks and nails were placed on the roadway. Langston described discussions with Otha and James as “extremely difficult” and said that Otha and James would confront the workers and tell them they could not use the roadway. Eventually, O’Neal said, there were “some shots fired” from the county road, and Thompson had its employees stop work at the O’Neal property until the situation could be resolved.

Even after the preliminary injunction was issued in November 2002, Otha, James, and Harold continued in their efforts to prevent O’Neal and the Hills from using the roadway. Lonnie Hill testified to an incident that occurred in 2005. He explained that he was attempting to use the roadway to reach his property when Otha and a man he later learned was John Hallman blocked his way. Hallman told Hill the roadway was private and that he “best not go up it.” The confrontation resulted in a physical altercation between Hill and Hallman.

More than four years after the trial, on July 27, 2010, the trial court entered its judgment. In the judgment, the trial judge stated that she had “physically viewed the subject property.” The court determined that O’Neal and the Hills had established a private easement by prescription over the roadway, determined that O’Neal and the Hills had a right to use the roadway to access their properties, and permanently enjoined the Steeles and their successors in title from interfering with O’Neal and the Hills’ use of the roadway. The trial court denied all other claims by the parties. The Steeles filed a motion for new trial, which the trial court denied. The Steeles subsequently appealed to the Alabama Supreme Court. Our supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

On appeal, the Steeles argue that the trial court’s judgment should be reversed and the cause remanded based on the failure to join Jackson County as a party to the action because, the Steeles argue, Jackson County was an indispensable party to the action, which, they assert, involved the question whether the roadway was a public road.

Generally, a county is an indispensable party to an action seeking to determine whether a road is public or private. Boles v. Autery, 554 So.2d 959, 962 (Ala.1989). This, however, was an action to determine whether O’Neal and the Hills could use the roadway to access their otherwise landlocked properties. After Otha and James began preventing the adjacent property owners from using the roadway, O’Neal filed his complaint and asserted that he was entitled to use the roadway for one of two reasons; specifically, he stated that he “believe[d] that the county may have maintained at least a portion of the road in years past, thus making it a public road,” and, alternatively, that he had acquired a private easement by prescription in the roadway because he and his predecessors in title had used the roadway openly for more than 20 years. In an amended complaint, the Hills joined in asserting these allegations. The judgment entered in the case established that O’Neal, the Hills and their respective successors had a private easement by prescription over the roadway at issue. It contained no finding as to whether the roadway is a public road; thus, the judgment is not binding on the county.

In Melton v. Harbor Pointe, LLC, 57 So.3d 695, 700 (Ala.2010), our supreme court discussed the application of Rule 19(a), Ala. R. Civ. P., which pertains to the joinder of indispensable parties when join-der is feasible:

“This Court stated in J.R. McClenney & Son, Inc. v. Reimer, 435 So.2d 50, 52 (Ala.1983), that ““[indispensable parties’ are persons who not only have an interest in the controversy but an interest of such a nature that a final decree cannot be made without either affecting that interest or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience.” ’ (Quoting 1 Champ Lyons, Alabama Practice, Rules of Civil Procedure, at 389 (1973).) The Court further stated in Reimer:
‘There is no prescribed formula to be mechanically applied in every case to determine whether a party is an indispensable party or merely a proper or necessary one. This is a question to be decided in the context of the particular case. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968). The issue is one to be decided by applying equitable principles and, under the circumstances of this case, it would be inequitable to vacate this judgment on motion of the defendant, which has so blatantly ignored the rules under which its mortgagee bank could have so easily been made a party.’
435 So.2d at 52 (emphasis added).”

Our supreme court also has stated:

“Rule 19, Ala. R. Civ. P., provides for joinder of persons needed for just adjudication. Its purposes include the promotion of judicial efficiency and the final determination of litigation by including all parties directly interested in the controversy. Where the parties before the court adequately represent the absent parties’ interests and the absent parties could easily intervene should they fear inadequate representation, no reason exists why the trial court could not grant meaningful relief to the parties before the court. Also, joinder of absent parties is not absolutely necessary where determination of the controversy will not result in a loss to the absent parties’ interest or where the action does not seek a judgment against them.”

Byrd Cos. v. Smith, 591 So.2d 844, 846 (Ala.1991) (citations omitted; emphasis added). See also Gatlin v. Joiner, 31 So.3d 126, 132 (Ala.Civ.App.2009); and Morgan Plan Co. v. Bruce, 266 Ala. 494, 497-98, 97 So.2d 805, 808 (1957).

Moreover, this court has held:

“The court, when determining parties under Rule 19, should place emphasis on the practical and pragmatic considerations of each case. Provident Tradesmen[s ] Bank & Trust v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968); Lopez v. Martin Luther King, Jr. Hospital, 97 F.R.D. 24 (C.D.Cal.1983). A determination of whether an interest under Rule 19(a)(2) exists should be viewed from a practical standpoint and should turn on the particulars of the case. Lopez, supra.

Felder v. State, 515 So.2d 17, 18 (Ala.Civ.App.1987) (emphasis added).

“A defendant’s delay and its self-serving purpose for raising the issue have also been held to be proper considerations in determining whether a judgment is proper in the absence of a particular party. J.R. McClenney & Son, Inc. v. Reimer, 435 So.2d 50, 52 (Ala.1983). See also, Geer Bros., Inc. v. Walker, 416 So.2d 1045, 1050 (Ala.Civ.App.1982).”

Byrd Cos., 591 So.2d at 846.

In discussing Rule 19(b), Ala. R. Civ. P., which applies when joinder is not feasible, one treatise has stated that, after a trial on the merits,

“the pragmatic considerations set forth in Ala. R. Civ. P. Rule 19(b) as to whether to abort the lawsuit ‘weigh heavily in favor of preserving the judgment of the trial court or modifying it to protect the interests of the absentee and against dismissal unless there had been real prejudice to those not before the court.’ 7 Wright, et al., Federal Practice and Procedure: Civil (2d ed.), Civil 2d § 1609.”

1 Champ Lyons, Jr., and Ally W. Howell, Alabama Rules of Civil Procedure Annotated at 566 (4th ed.2004). Another treatise has stated that, “[bjecause the doctrine of indispensability is equitable in character, the court will not dismiss for nonjoinder when special circumstances would make it inequitable to do so.” 7 Charles A. Wright et al., Federal Practice and Procedure § 1611 at 169 (3d ed.2001).

In a case involving the issue of whether the failure to join an allegedly “indispensable party” required reversal, the Supreme Court of North Dakota affirmed the judgment of the trial court, echoing the rationale expressed in the quote above from Lyons and Howell, Alabama Rules of Civil Procedure Annotated:

“ ‘The purpose of the compulsory joinder rule is to protect an absent party from prejudice, to protect parties from harassment by successive suits, and to protect the courts from being imposed upon by multiple litigation. Cudworth v. Cudworth, 312 N.W.2d 331, 333 (N.D.1981). Although the failure to join an indispensable party may be raised for the first time on appeal, “[o]nce the trial has been concluded, the pragmatic considerations in Rule 19 weigh heavily in favor of preserving the judgment of the trial court ... and against dismissal unless there has been real prejudice to those not before the court.” Cudworth v. Cudworth, supra, 312 N.W.2d at 334. Dismissal of an action for nonjoinder of a party is an extreme remedy which should only be granted where a party is truly “indispensable.” Kouba v. Great Plains Pelleting, Inc., 372 N.W.2d 884, 887 (N.D.1985).’
“Erdmann v. Thomas, 446 N.W.2d 245, 249 (N.D.1989).”

In re Estate of Murphy, 554 N.W.2d 432, 438 (N.D.1996).

Courts have been struggling for decades with the issue of whether to reverse a judgment that does not affect the rights of a party that has been deemed “indispensable” after the entry of the judgment. In dissenting to the reversal of a judgment that confirmed the interest of the non-joined “indispensable” party, Judge Hutcheson of the United States Court of Appeals for the Fifth Circuit noted that “it seems to me a vain thing to reverse for the absence of parties a judgment whose rights it does not adversely affect.” Calcote v. Texas Pac. Coal & Oil Co., 157 F.2d 216, 224 (5th Cir.1946) (Hutcheson, J., dissenting).

In Lyons and Howell, Alabama Rules of Civil Procedure Annotated, it is noted that the reversal of the judgment in Davis v. Burnette, 341 So.2d 118 (Ala.1976), in which the trial court’s judgment appeared to be favorable to the interest of the absent party, “apparently required a second trial while an affirmance would end the matter and would perhaps have better served a purpose of compulsory joinder of preventing imposition on the courts. Accord, 7 Wright, et al., Federal Practice and Procedure: Civil (2d ed.), Civil 2d § 1609.” 1 Lyons and Howell, Alabama Rules of Civil Procedure Annotated at 566.

The record in this case indicates that the Steeles filed both a counterclaim and a third-party complaint in this action and did not join the county as a party. The record also indicates that the Steeles do not want anyone using the roadway across their property. Otha testified that she had never given O’Neal and the Hills permission to use the roadway. During cross-examination, she stated that it was her roadway. When the attorney questioning her replied that that was the question they were in court to determine, Otha said, “I know whose road it is.” After further questioning, Otha and the attorney representing O’Neal and the Hills had the following discussion:

“Q. [By the plaintiffs’ attorney]: So the road needs some work on it, doesn’t it?
“A.: No, it doesn’t need any work on it.
“Q.: The road doesn’t need any work on it?
“A.: No, sir. We’re not going to use it anymore. I need the field — my property more than I need the road.
“Q.: If Judge Holt says that Mr. O’Neal and Mr. Hill have the right to use that road, are you going to let them use the road?
“A.: No.
“Q.: No, you’re not?
“A.: No.
“Q.: You’re not going to do it?
“A.: No. I can’t. I can’t open my land up to the public—
“Q.: So—
“A.: —to the hunting community.
“Q.: So you’re not going to follow the Judge’s order?
“A.: I’ll have to appeal it.
“Q.: But if you appeal it and that Court says that they have a right to use the road, you—
“A.: Well, we’ll go somewhere else and appeal it.
“Q.: You’re not going to let these gentlemen—
“A.: I have to have my land. And I can’t open it up — You’ve seen what they done already.
“Q.: Yes, ma’am, I have; the road looks good.
“A.: Yes. But my farm looks bad. And I need the farm, I don’t need the road.”

This matter has been in litigation since November 2002. The Steeles had ample opportunity to join the county as a party to this action, and they failed to do so. Further, the record clearly demonstrates that the Steeles do not want the roadway to be declared a public road. It appears that the Steeles may be raising the issue of the county’s joinder as a delaying tactic and doing so singly for the purpose of gaining a second opportunity to try their case. At this stage in the litigation, to reverse the judgment — at the Steeles’ request — on the ground that the county is an indispensable party in what is clearly a private dispute, this court would be giving the Steeles that second opportunity, i.e., a second bite at the apple.

O’Neal and the Hills merely wanted the Steeles to stop blocking their access to their properties via the roadway. The trial court granted them the relief requested without having to make a determination that the roadway was a public road; thus, the relief requested was obtained without having to include the county as a party. No prejudice to the county has been shown. The judgment imposes no duties or responsibilities on the county, and it does not foreclose a later action regarding whether the roadway is a public road.

Accordingly, we conclude that, for the equitable and pragmatic reasons allowed by Rule 19, Ala. R. Civ. P., the trial court did not err in refusing to add Jackson County to this action as an indispensable party.

The Steeles contend that the trial court erred in determining that O’Neal and the Hills had presented substantial evidence demonstrating that they had established a private easement by prescription. As mentioned, the trial court heard ore tenus evidence in this case; thus, our standard of review is as follows.

“Because the trial court heard ore tenus evidence during the bench trial, the ore tenus standard of review applies. Our ore tenus standard of review is well settled. ‘ “When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.” ’ Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)).
“ ‘ “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). The rule applies to “disputed issues of fact,” whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala.1995). The ore tenus standard of review, succinctly stated, is as follows:
“ ‘ “[WJhere the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.” ’
“Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala. 2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)). However, ‘that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.’ Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 417 (Ala.1994).”

Kennedy v. Boles Invs., Inc., 53 So.3d 60, 67-68 (Ala.2010). “[T]he ore tenus presumption is further strengthened in a case involving a dispute over real property, where the trial judge views the land in question.” Hereford v. Gingo-Morgan Park, 551 So.2d 918, 920 (Ala.1989). “ ‘[W]here a trial judge takes a view of the subject property there must be a strong showing of error before reversal is proper.’ ” Miller v. Harris, 945 So.2d 1072, 1076 (Ala.Civ.App.2006) (quoting Bull v. Salsman, 435 So.2d 27, 30 (Ala.1983)).

In their brief to this court, the Steeles contend that the Hills and O’Neal failed to prove that they “possessed” the roadway to the exclusion of others or that their “claim of title” to the roadway was adverse, continuous, and uninterrupted for the 20 years before the action was filed. In Johnson v. Metro Land Co., 18 So.3d 962, 968 (Ala.Civ.App.2009), this court reiterated the well settled law regarding the establishment of a private easement by prescription:

“In Andrews v. Hatten, 794 So.2d 1184, 1186 (Ala.Civ.App.2001), this court indicated that, ‘[i]n order to establish [a private] easement by prescription, the claimant must use the property over which the easement is claimed, for a period of 20 years or more, in a manner adverse to the owner of the property, under a claim of right, and the use must be exclusive, continuous, and uninterrupted, with the actual or presumptive knowledge of the owner.’ ”

In Belcher v. Belcher, 284 Ala. 254, 257, 224 So.2d 613, 615 (1969), our supreme court affirmed a judgment holding that the owners of property adjacent to property traversed by the road at issue had a private easement by prescription in the road. Evidence in that case indicated that the property owners seeking the easement had used the road for more than 20 years to access their property. Belcher, 284 Ala. at 256, 224 So.2d at 614. As in this case, the road at issue in Belcher was the adjacent property owners’ only means of accessing their property by vehicle; they used the road to haul their belongings to and from their property, their children used the road to go to and from school, and their visitors used the road when they visited by car. 284 Ala. at 256-57, 224 So.2d at 614-15.

Likewise, in Fisher v. Higginbotham, 406 So.2d 888 (Ala.1981), our supreme court affirmed a judgment holding that a private easement by prescription had been established by owners of property adjoining another’s tract of property traversed by the road in question. Fisher, 406 So.2d at 888. The property owners seeking the easement, as well as their predecessors, had used the road for almost 50 years. Id. And again, as in this case, the road was the only means the property owners had to access their property. In affirming the judgment establishing the easement, our supreme court noted that the property owners seeking the easement had “produced evidence of similar use [as the use demonstrated in Belcher ] ... extending over several decades, and we cannot say that the decree of the trial court was plainly erroneous or manifestly unjust.” Id. at 889.

Here, the undisputed evidence indicates that, since at least 1972, Phillips and his successors have used the roadway continuously to access the properties now owned by the Hills and O’Neal. Other evidence indicated that the roadway had been in use since at least 1911. There is no indication in the record that anyone ever asked Otha, James, or Harold for permission to use the roadway; thus, the Hills’ and O’Neal’s use of the roadway was adverse to the Steeles’ title. See Fisher, supra. The evidence also demonstrates that the Steeles had actual knowledge that others were using the roadway to access the property that lay beyond theirs.

In Belcher, our supreme court discussed the meaning of “exclusivity” in the context of obtaining an easement as follows:

“[I]n Tiffany Real Property, Third Edition, Vol. 4, § 1199, ‘Necessity of exclusive user,’ [was defined] as follows:
“ ‘It is sometimes said that, in order to acquire a right of user by prescription, the user during the prescriptive period must be exclusive, but this appears to be so in a very limited sense, if at all. It means, it has been said, no more than that the claimant’s right must rest upon its own foundations and not depend upon a like right in any other person; it is not necessary that he should have been the only one who used or was entitled to use it, so long as he used it under a claim of right independently of others. For instance, the user of another’s land for purposes of passage, if continued for the prescriptive period, may operate to create an easement of a right of way, although the owner of the land also passes upon the same line or allows others to pass thereon, nor is it material, in this regard, that an exactly similar easement of passage in favor of another is already existent, or is in course of establishment.’ ”

Belcher, 284 Ala. at 257, 224 So.2d at 615.

In this case, Harold testified that a cable had been placed across the entrance to the roadway in the 1970s. No evidence was presented to dispute that claim. Lonnie Hill erected a gate at the entrance to the roadway in 1984, and he provided gate keys only to James Steele and, when O’Neal purchased his property, to O’Neal and the utility company so that they could use the roadway to access the O’Neal property. The locked gate indicates that the Hills and O’Neal intended the use of the roadway to be exclusive to the property owners along the roadway and their guests, regardless of whether others used the roadway to reach hunting and fishing destinations. The trial court’s judgment in this case is supported by substantial evidence, and, as was the case in Belcher and Fisher, we cannot say that the trial court’s judgment in this case was plainly erroneous.

The Steeles also contend that the trial court erred in failing to award them monetary damages for trespass and for the actual damage they claim was done to their property. In its judgment, the trial court did not specifically address the Steeles’ claim for monetary damages. After finding that the Hills and O’Neal had established a private easement by prescription and setting forth their rights accordingly, the trial court denied all other relief or claims of the parties. It is well settled that, in the absence of specific findings of fact, an appellate court will presume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. Baker v. Baker, 862 So.2d 659, 662 (Ala.Civ.App.2003); see also Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).

The record indicates that witnesses disagreed about the condition of the roadway after Thompson’s employees worked on it. Harold testified that the roadway was not in as good a condition as it had been before the summer of 2002. He denied that the roadway had been restored and said that where previously he had been able to drive “down through there with my car,” he “wouldn’t put any kind of car down through there” at the time of the trial. He later testified that he could not drive his small car down the roadway because of ruts, and he “assume[d]” one could not drive a mid-sized car on the roadway because, he said, the car would drag.

Harold acknowledged that he had not maintained the roadway since litigation began in this case in 2002. When Harold was shown photographs of the roadway taken in the fall of 2004, after Thompson had graded it, he admitted that in the photographs the roadway appeared to be in better condition than it had been in 2002, “if the [photographs] were real.” However, he denied that the photographs accurately depicted the roadway at the time of trial.

Harold also testified that the timber-harvesting company or “whoever” graded the roadway had pushed “dirt and stuff’ into a fence that ran beside the roadway. He also said that trees had been knocked into the fence and that the fence was in shambles. He said that before the roadway was graded, the fence had been good. Harold also claimed that a bulldozer had demolished a shed next to his barn while work on the roadway was being done. He also testified that a ditch that had drained water from the roadway into a creek was stopped up and that water now backs up in a field that had once been cultivated. Harold said that previously he had rented the field but that the people who leased it had told him they could no longer grow beans there because there was now too much water in the field.

Wayne Summers, who said he was “maybe [a] real distant” relative of the Steeles, testified that, with Otha’s permission, he had walked on the roadway “a couple of times a week” for several years, both before and after 2002. Summers said that he did not know of anyone other than the Steeles who used the roadway and that he was unfamiliar with anyone else who would have a need to use the roadway.

On direct examination, Summers said that, at the time of the trial, the roadway was in a worse condition than it had been before 2002. Before 2002, he said, there were places where the roadway held water, but, he added, the roadway had a rock bottom and a car could be driven on it. He testified that, currently, when it rains “you can’t drive a four-wheel truck down through there, probably.” He also said a field next to the roadway could no longer be cultivated because it was muddy. However, on cross-examination, Summers testified that, since 2004, brush had been cleared off the roadway and that it was wider than it had been, but otherwise, he said, it looked the same.

On the other hand, witnesses testifying on behalf of the Hills and O’Neal testified that the roadway had been improved since the Hills and O’Neal had been using it. O’Neal testified to improvements he had made to the roadway. Additionally, Mark Henley, who Thompson had hired to repair the roadway when it had finished harvesting timber on O’Neal’s property, testified to improvements he had made to the roadway. Henley said that he did the road work in January 2004. He said that he could see where water had been rushing across the roadway, so he cleaned out the ditch that ran beside the roadway and put down gravel “to keep the water going down the ditch.” Henley denied that he had knocked down any trees while working on the roadway. There was also no evidence presented indicating that Henley was responsible for damage to the Steeles’ fence and shed.

Todd Langston, who also worked for Thompson, said that when he first saw the roadway, it had standing water, brush on the side of the roadway was grown up and hanging over the roadway, and the roadway had rocks on it. Before timber harvesting began on O’Neal’s land, Langston said, Thompson improved the roadway so that logging trucks could use it. When the timber harvesting was completed, he said, Henley improved the roadway and left it in good condition. Langston testified that he wished that Thompson had had more time to do more work on the roadway, but, he said, the situation with Otha and James, described earlier, did not allow Thompson to finish improving the roadway in the manner it normally would have. There was no evidence presented indicating that Thompson had damaged the shed or the fence.

The evidence regarding the damage, if any, to the roadway was in dispute, as was evidence regarding whether work on the roadway had caused an influx of water onto the Steeles’ field. Harold testified that a ditch that had drained water from the roadway into a creek was stopped up, causing the water to back up; Henley testified that he had cleaned out the ditch and had repaired it so that water did not overflow the ditch. No evidence was presented as to who was responsible for the damage to the Steeles’ fence and shed. Moreover, we note that the trial court personally viewed the roadway at issue. Pursuant to the ore tenus standard of review applicable in this case, this court may not reweigh the evidence or sit in judgment of disputed evidence.

“ ‘When the evidence in a case is in conflict, the trier of fact has to resolve the conflicts in the testimony, and it is not within the province of the appellate court to reweigh the testimony and substitute its own judgment for that of the trier of fact.’ Delbridge v. Civil Serv. Bd. of Tuscaloosa, 481 So.2d 911, 913 (Ala.Civ.App.1985). ‘[A]n appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow.’ Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003) (citations omitted).”

Ex parte R.E.C., 899 So.2d 272, 279 (Ala. 2004).

Based upon the evidence in the record, we conclude that the trial court could have found that the Steeles had failed to prove that, to the extent any of their property, including the roadway, the field, the fence, and the shed, was damaged, the named defendants’ had caused that damage. The record supports the trial court’s judgment rejecting the Steeles’ claim for monetary damages.

The Steeles have not provided this court with any basis for reversal. For the reasons stated above, the judgment of the trial court is affirmed.

AFFIRMED.

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

THOMAS, J., dissents, with writing, which MOORE, J., joins.

THOMAS, Judge,

dissenting.

I respectfully dissent. I would reverse the judgment of the trial court and remand the cause for the joinder of Jackson County as an indispensable party to the action. The county is an indispensable party to an action seeking to determine whether a road is public or private. Boles v. Autery, 554 So.2d 959, 962 (Ala.1989).

“The trial court’s determination of whether the road was public or was private might affect not only the rights of the individual litigants but also the rights of members of the public to use the road, the duty of the county to maintain it, and the liability of the county for failure to maintain it. If the county is not joined as a party, then neither it nor other members of the public are bound by the trial court’s ruling. Accordingly, if the county and other persons are not bound, then the status of the road as public or private is subject to being litigated again, and the results of later litigation may be inconsistent with the results of the initial litigation.”

Boles, 554 So.2d at 961.

One of the theories advanced by Hugh O’Neal, Lonnie Hill, and Anita Hill in their complaint was that the roadway had been, and remained, a public road. Testimony was later introduced at trial regarding whether the roadway was a public road, and O’Neal and the Hills argued again in their posttrial brief that the roadway was a public road. Thus, the question whether the roadway was a public road was clearly before the trial court. Although the trial court found in favor of O’Neal and the Hills based on their alternate claim — that they had a private easement by prescription in the roadway — that determination necessarily implies a finding that the roadway is not a public road, allowing O’Neal and the Hills, along with Otha Steele and Harold Steele, to exclude the public from accessing the roadway. Because the question whether the roadway was a public road was at issue in the trial court, and because the trial court’s judgment affects the use of the roadway by the public, Jackson County was an indispensable party to the action. See Wilson v. Berry, 36 So.3d 559 (Ala.Civ.App.2009).

This court has routinely reversed judgments in cases between private parties where the question whether a roadway is public or private has arisen, holding that the county was an indispensable party to the action. See Allbritton v. Dawkins, 19 So.3d 241, 244 (Ala.Civ.App.2009) (holding that the county was an indispensable party to an action between private parties involving the question whether the plaintiffs had acquired a private easement or, alternatively, whether the roadway was a public road); Wilson, 36 So.3d at 561 (holding that the county was an indispensable party to an action between two private parties where there was evidence indicating that a roadway at issue was once public); Burnett v. Munoz, 853 So.2d 963, 966 (Ala.Civ.App.2002) (holding that the county was an indispensable party to an action between two private parties in which the public status of a roadway was in question); and Laney v. Garmon, 25 So.3d 478, 480 (Ala.Civ.App.2009).

The main opinion argues that Jackson County’s absence from the instant action should be excused based on equitable principles. However, equitable principles have generally been applied only where the issue of the absence of an indispensable party has been raised after the entry of the judgment, as is apparent from the cases relied on by the main opinion. In Byrd Cos. v. Smith, 591 So.2d 844 (Ala.1991), the Alabama Supreme Court declined to reverse a judgment for failure to join an indispensable party when the appellant had raised the issue for the first time on appeal even though it was aware of the absence of the party before the trial. 591 So.2d at 847. Byrd, in turn, cited J.R. McClenney & Son, Inc. v. Reimer, 435 So.2d 50 (Ala.1983), in which our supreme court, based on equitable principles, declined to reverse the denial of a Rule 60(b)(4), Ala. R. Civ. P., motion when the party had not alleged the absence of an indispensable party at trial and had not appealed the trial court’s judgment but instead had raised the issue for the first time in a Rule 60(b) motion filed after the time for appeal had expired. 435 So.2d at 52. Byrd also cited Geer Brothers, Inc. v. Walker, 416 So.2d 1045 (Ala.Civ.App.1982), in which this court declined, on equitable principles, to reverse a judgment for failure to join an indispensable party when the issue was raised for the first time in a postjudgment motion. 416 So.2d at 1050. As also noted in Geer Brothers, “when the issue of nonjoinder is raised for the first time after the trial has concluded, ‘considerations of judicial economy and fairness dictate that the court closely examine the merits of any assertion of nonjoinder to be certain that it really will have prejudicial effects.’ ” Id. (quoting 7 C. Wright & A. Miller, Federal Practice and Procedure § 1609 at 90 (1972)).

In the instant action, the Steeles raised the issue of the absence of Jackson County at the beginning of trial and again in their posttrial brief; thus, they raised the issue well before the entry of the judgment. Therefore, the Alabama cases cited by the main opinion for the proposition that we should not reverse the judgment in the instant action for the failure to join an indispensable party based on equitable principles are wholly inapposite.

Lastly, I cannot agree, as the main opinion asserts, that the judgment in this case is necessarily favorable to Jackson County. Although it is true that the judgment does not impose any additional duties on Jackson County, Jackson County would also represent the interests of the general public in the action — a general public that is excluded from using the roadway pursuant to the trial court’s judgment. Moreover, the exclusion of the general public from using the roadway creates the possibility that O’Neal, the Hills, and the Steeles may have to relitigate the status of the roadway in a future lawsuit brought by Jackson County or by a member of the general public, which is the very reason why Jackson County is an indispensable party to the instant action. See Boles, 554 So.2d at 961 (“[I]f the county and other persons are not bound, then the status of the road as public or private is subject to being litigated again, and the results, of later litigation may be inconsistent with the results of the initial litigation.”).

“The absence of a necessary and indispensable party necessitates the dismissal [by the trial court] of the cause without prejudice or a reversal with directions to allow the cause to stand over for amendment.” J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 850-51 (Ala.1981). Accordingly, I would reverse the judgment of the trial court and remand the cause to that court to join Jackson County as an indispensable party to the action. Because I would reverse the judgment and remand the cause for failure to join Jackson County as an indispensable party, I express no opinion on the remaining issues raised on appeal.

MOORE, J. concurs.

      . Harold Steele is the son of Otha Steele and James Steele. James Steele was a named defendant in the original complaint; he died during the pendency of the action.

      . Henley was hired by the timber-harvesting company to repair the roadway after its timber-harvesting operations on O'Neal’s property ended.

      . There is no explanation in the record for the lengthy delay in the entry of the judgment.


author: PITTMAN, Judge.

text:
    Angela D. FRANKLIN and Charles L. Franklin v. Walter MITCHELL d/b/a Southern Classic Construction.
    2091053.
    Court of Civil Appeals of Alabama.
    Sept. 2, 2011.
    Rehearing Denied Oct. 28, 2011.
    Certiorari Denied Jan. 13, 2012 Alabama Supreme Court 1110191.

      Clement J. Cartron, Huntsville, for appellants.
    Robert V. Wood, Jr., and Nicole L. Schroer of Wilmer & Lee, P.A., Huntsville, for appellee.
   PITTMAN, Judge.

Angela D. Franklin and Charles L. Franklin appeal from a summary judgment in favor of Walter Mitchell, a sole proprietor doing business as Southern Classic Construction. We affirm.

In June 2001, Mitchell agreed to build a new house for the Franklins for $143,500, according to plans and specifications supplied by the Franklins. Construction was complete, and the Franklins moved into the residence, in October 2001.

In April 2006, the Franklins noticed that the bathroom and kitchen floors in the house were soft and “sagging.” Charles Franklin entered the crawl space under the house to investigate, but he saw no damaged wood and no indication of what was causing the floors to sag. Franklin contacted Mitchell and inquired whether the flooring material could be defective. Mitchell acknowledged that, on an earlier occasion, he had received defective flooring material from the same manufacturer, and he gave Franklin the contact information for the flooring supplier. For the next eight months, Franklin attempted without success to deal with the flooring manufacturer’s representative.

In March 2007, the Franklins engaged a civil engineer and licensed home inspector, Dr. William Payne, to perform an inspection of the house. According to Payne’s March 7, 2007, home-inspection report, the sagging or softening of the subfloor was not a result of defective wood. Instead, the depressions in the subfloor were caused by a loss of strength in the decking because of the absorption of moisture from condensation on the air-conditioning boots and the floor decking. An air return located within 18 inches of the bathroom depression area was not properly sealed and was drawing moisture into the area. The depression in the kitchen floor was also the result of the decking’s having absorbed moisture. It appeared that air was leaking from the floor vents and the air return, and those leaks provided a constant source of moisture in the crawl space. Mold and mildew were visible on the decking and floor joists.

The Franklins immediately contacted Mitchell about the items enumerated on the home-inspection report. Mitchell told the Franklins that the one-year warranty on his work had expired, but he offered to have Southern Mechanical Heating & Air, Inc. (“SMHA”), the subcontractor that had installed the Franklin’s heating, ventilating, and air-conditioning (“HVAC”) system (and whose principal, Jim Mitchell, is his father) look at the Franklins’ HVAC system. Walter Mitchell admitted that he later told his father, Jim Mitchell, that “Charles [Franklin] is a good guy; I’ve known him; let’s fix it.”

In late March or early April 2007, Jim Mitchell and Robert Dempsey, an SMHA subcontractor, replaced the subfloor near the Franklins’ bathroom and braced the subfloor in front of the refrigerator. SMHA later undertook further repairs when an SMHA crew went into the Franklins’ crawl space to tape all the ducts, seal the air return, and insulate the boots. After they left, Charles Franklin inspected the crawl space to determine what repairs had been made. He was dissatisfied with the work that had been done. Specifically, he saw that not all the ducts had been taped and that there was no insulation on the boots. He also saw tape over mold and mildew. Franklin contacted Walter Mitchell and asked him to look at what he considered was faulty work that needed to be fixed. Walter Mitchell came to the premises, inspected the work that had been done under the Franklins’ house, and told Franklin that he was not obligated to do anything because the one-year warranty on his work had expired. He also stated that any repairs that had been attempted were gratuitous and had been undertaken only because he and Franklin were friends. Franklin later asked Jim Mitchell whether SMHA would be willing to turn the Franklins’ complaints over to its insurance company; Jim Mitchell indicated that SMHA would not report the complaints to its insurer. He also informed Franklin that the repairs were unnecessary, that the HVAC work was initially done correctly, and that he had undertaken the repairs only because his son Walter had asked him to do so.

Charles Franklin subsequently contacted an attorney to discuss filing a claim against Jim Mitchell and SMHA based on the alleged faulty repair work. According to Franklin, the attorney told him it would be necessary to get an expert opinion on the repair work and to pay the attorney a $5,000 retainer. Franklin stated that he could not afford to pay the attorney; instead, he began saving his money to get another home inspection by Payne.

On March 18, 2008, Payne submitted a second home-inspection report. The report concluded that the attempted repairs had not remedied the moisture problem. In addition, Payne found two additional construction defects: the brick veneer on the house had been improperly installed without flashing between the sheathing and the weep holes, and the piers under the brick hearth had been improperly constructed and installed. On April 21, 2008, Mid-South Testing and Engineering Company conducted an indoor air-quality assessment at the Franklins’ request. The assessment confirmed the presence of mold and mildew in the dwelling. The report noted that unless proper repairs were made to the HVAC ductwork in the crawl space, the interior of the house would be heavily affected by mold.

On February 11, 2009, the Franklins sued Walter Mitchell d/b/a Southern Classic Construction, asserting claims of negligent construction, subsequent negligent repairs, and breach of contract. Mitchell denied the allegations of the complaint and asserted several affirmative defenses, including the statute of limitations. Mitchell also filed a third-party complaint against three of the subcontractors on the Franklin construction project — SMHA, DH Masonry, and Frakes Insulation — asserting that if he was liable to the Franklins, then those subcontractors were liable to him.

Walter Mitchell moved for a summary judgment on the Franklins’ claims, contending that the Franklins’ negligence claim accrued, and the two-year statutory limitations period set out in § 6-2-38(l), Ala.Code 1975, began to run, in April 2006, when the Franklins first became aware of sagging floors in their bathroom and kitchen. Mitchell maintained that the Frank-lins’ negligence claim was, therefore, barred by the time the Franklins filed suit on February 11, 2009. On the claim of subsequent negligent repairs, Mitchell denied that he had performed, supervised, paid for, or provided any materials for the repairs that had been made on the Frank-lins’ property. Mitchell stated that he had not been present when the repairs were made. Mitchell asserted that SMHA and Dempsey were independent contractors over whom he had exercised no control or supervision. On the breach-of-contract claim, Mitchell argued that the Franklins’ claim had accrued in October 2001, when he completed his performance under the contract to build the Franklins’ house, and, thus, that the claim was barred by the six-year statute of limitations set out in Ala. Code 1975, § 6-2-34(9), when the Frank-lins filed suit on February 11, 2009.

The Franklins amended their complaint to add a claim of fraudulent concealment, asserting that, as a consequence of Walter Mitchell’s allegedly misleading statements that his warranty had expired, that he was not obligated to perform any repairs, and that the repairs that had been performed were gratuitous, the Franklins were under the false impression that they did not have a legal claim against Mitchell. The Frank-lins asserted that they thought their only recourse was to rely upon repairs that had been made by SMHA because they could not legally force Mitchell to remedy any construction defects. Accordingly, the Franklins alleged, they delayed legal action against Mitchell while they determined whether the repairs would cure the moisture problems in the crawl space.

The Franklins opposed Mitchell’s summary-judgment motion and filed their own motion for a summary judgment. Following a hearing on the motions, the trial court entered a summary judgment in favor of Walter Mitchell d/b/a/ Southern Classic Construction. The Franklins timely appealed to the Supreme Court of Alabama, which transferred the appeal to this court pursuant to § 12 — 2—7(6).

Standard of Review

Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). 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 § 12 — 21—12(d), Ala.Code 1975.

Discussion

The Franklins raise three issues on appeal. First, they argue that their negligence claim was not barred by the statute of limitations because, they say, the claim did not accrue, and the statute did not begin to run, until they received the home-inspection report in March 2007 and were made aware of what had caused their floors to sag. Accordingly, they insist that their February 11, 2009, complaint was timely filed. Second, they argue that Walter Mitchell was estopped from relying on a statute-of-limitations defense because, they say, by asserting that the one-year warranty on his work had expired, Mitchell fraudulently induced them to believe that the statute of limitations had already expired on any negligence claim they might have had against him. Third, they contend that the summary judgment on the subsequent-negligent-repairs claim was erroneous because, they contend, there were genuine issues of material fact regarding whether SMHA was Walter Mitchell’s apparent agent or agent by es-toppel, whether Mitchell had a nondelega-ble duty to repair, and whether Mitchell voluntarily undertook a duty to repair. The Franklins make no argument regarding the summary judgment on their breach-of-contract claim, having conceded in the trial court that the claim was barred by the six-year statute of limitations set out in Ala.Code 1975, § 6-2-34(9).

I. Accrual of the Negligence Claim

Section 6 — 2—38(¿) provides that

“[a]ll actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.”

A negligence action accrues “as soon as the claimant is entitled to maintain an action, regardless of whether the full amount of damages is apparent at the time of the first legal injury.” Koch v. State Farm Fire & Cas. Co., 565 So.2d 226, 231 (Ala.1990).

The Franklins contend that their negligence claim did not accrue in April 2006, when they first noticed the sagging floors in their house, because, they say, the sagging floors constituted a latent defect for which the cause was then unknown. The Franklins maintain that, without knowing the cause of the damage to their floors, they could not have known that they had an actionable injury. This court addressed, and rejected, essentially the same argument in CertainTeed Corp. v. Russell, 883 So.2d 1266 (Ala.Civ.App.2003). In that case, Carolyn Russell, an owner of a newly constructed house, noticed a black sooty residue that had begun to accumulate inside the house in January 1996. More than two years later, in September 1998, Russell sued CertainTeed Corporation, the manufacturer of ductwork insulation that, according to Russell’s complaint, had decomposed and had been dispersed throughout the house by the HVAC system. CertainTeed moved for a judgment as a matter of law (“JML”) on Russell’s claim under the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”), arguing that the claim was barred by the statute of limitations. The trial court denied the motion and subsequently entered a judgment on the jury’s verdict in favor of Russell on, among other claims, her AEMLD claim, but this court reversed that portion of the trial court’s judgment, repeating the following well established legal principles:

“Under Alabama law, a noncontract cause of action arises when the first indication of damage becomes apparent to the claimant. Our Supreme Court has stated the rule as follows:
“ ““ “If the act of which the injury is the natural sequence is of itself a legal injury to plaintiff, a completed wrong, the cause of action accrued and the statute begins to run from the time the act is committed, be the actual damage [then apparent] however slight, and the statute will operate to bar a recovery not only for the present damages but for damages developing subsequently and not actionable at the time of the wrong done; for in such a case the subsequent increase in the damages resulting gives no new cause of action. Nor does plaintiffs ignorance of the tort or injury, at least if there is no fraudulent concealment by defendant, postpone the running of the statute until the tort or injury is discovered.” ’ ” ’
“McWilliams v. Union Pac. Res. Co., 569 So.2d 702, 703-04 (Ala.1990) (quoting Garrett v. Raytheon Co., 368 So.2d 516, 519 (Ala.1979), quoting in turn Home Ins. Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 608, 285 So.2d 468, 473 (1973), quoting in turn, Kelley v. Shropshire, 199 Ala. 602, 75 So. 291, 292 (1917)).”

CertainTeed Corp. v. Russell, 883 So.2d at 1269-70 (emphasis added). This court concluded that “Russell’s AEMLD cause of action accrued when she observed the damage to her new house, even though she did not know ivhat had caused the damage.” 883 So.2d at 1270 (emphasis added).

In their appellate brief, the Franklins suggest that, “[t]o the extent that Certain-Teed held that a personal injury action acerue[s] when a claimant observe[s] damage to her new home, even though the claimant d[oes] not know what caused the damage,” CertainTeed is flawed, unsupported by authority, and should be overruled. Because CertainTeed applies well established Alabama law, and is supported by venerable authority dating back to 1917, we decline the Franklins’ invitation to overrule it.

The Franklins’ argument — that, without knowing the cause of their sagging floors (which they characterize as a latent injury), they could not have known that they had an injury that was actionable— appears to be based upon Ala.Code 1975, § 6-5-220(e), which outlines when a cause of action against architects, engineers, and builders accrues. The statutory scheme of which § 6-5-220 is a part has no application here because Walter Mitchell d/b/a Southern Classic was not a “builder” within the meaning of § 6-5-220(a). That section specifies that a builder is

“[a]ny individual, partnership, firm, or corporation that constructed, or performed or managed the construction of, an improvement, or any portion thereof, on or to real estate, and at the time of the construction was licensed as a general contractor in the State of Alabama.”

(Emphasis added.) Walter Mitchell testified that he was licensed as a “residential home builder,” see Ala.Code 1975, § 34-14A-2(10), by the Home Builders Licen-sure Board, see Ala.Code 1975, § 34-14A-3, but that he did not have a general contractor’s license.

II. Estoppel to Plead the Statute-of-Limitations Defense

The Franklins insist that Walter Mitchell was estopped from relying on a statute-of-limitations defense because, they say, by asserting that the one-year warranty on his work had expired, Mitchell fraudulently induced them induced them to believe that the statute of limitations had already expired on any negligence claim they might have had against him.

“When the plaintiff alleges the defendant should be estopped from raising the defense of the statute of limitations, as the plaintiffs do in this case, then the actions of the defendant come into question. In general, conduct which is sufficient to give rise to an estoppel against the pleading of the statute of limitations must amount to an affirmative inducement to the plaintiff to delay bringing the action.”

Moore v. National Sec. Ins. Co., 477 So.2d 346, 348 (Ala.1985); see also Seybold v. Magnolia Land Co., 376 So.2d 1083, 1085 (Ala.1979). “Vague assurances” do not amount to an affirmative inducement to delay filing suit. Moore, 477 So.2d at 348.

In Jim Walter Homes, Inc. v. Kendrick, 810 So.2d 645 (Ala.2001), Arthur Kendrick bought a house from Jim Walter Homes, Inc. (“JWH”), in 1992. Kendrick acknowledged that he knew in 1992 that the house had problems and was not of “good quality” as JWH had warranted it to be. 810 So.2d at 648. When Kendrick noticed defects in the house, he reported the defects to JWH and JWH undertook to repair the defects. Kendrick sued JWH in 1997, and JWH asserted a statute-of-limitations defense, arguing that Kendrick had been aware of problems with the house but had waited five years to file his complaint. Kendrick argued that JWH was estopped to assert the statute-of-limitations defense because it had been making repairs as he reported defects in the house. The supreme court rejected that argument, concluding that it was not supported by the evidence. The court stated:

“Evidence indicated that since 1992 JWH had been making repairs as Kendrick reported problems. However, no evidence indicated that JWH promised to repair the defects in Kendrick’s house in order to induce Kendrick not to sue JWH. The record shows that Kendrick did not threaten to sue JWH until October 1996. Kendrick testified that each time he reported a problem he relied on JWH’s stating to him that the problem would be fixed; however, the record contains no evidence indicating that JWH made, or that Kendrick relied upon, a promise to repair in return for a promise not to sue.”

810 So.2d at 651 (emphasis added). The same is true in the present case. The Franklins presented no evidence of an affirmative inducement — that is, that Walter Mitchell Classic promised to make repairs on the Franklins’ premises in return for the Franklins’ promise not to sue.

III. The Subsequent-Negligentr-Repairs Claim

The Franklins argue that the summary judgment on the subsequent-negligent-repairs claim was erroneous because, they say, there were genuine issues of material fact regarding whether SMHA was Walter Mitchell’s apparent agent or agent by estoppel, whether Mitchell had a nondelegable duty to repair, and whether Mitchell voluntarily undertook a duty to repair. Their argument is premised on the following undisputed facts: that Walter Mitchell informed the Franklins that he was not HVAC certified and that he was not trained in mold and mildew recognition and removal, that Mitchell performed no repairs, and that SMHA made repairs to the Franklins’ HVAC system at the request of Mitchell and for the benefit of Mitchell.

“Under Alabama law, the test of agency is the right of control, whether exercised or not. Brown v. Commercial Dispatch Publishing Co., 504 So.2d 245 (Ala.1987). For one to be an agent, the other party must retain the right to direct the manner in which the business shall be done, as well as the results to be accomplished, or, in other words, not only what shall be done, but how it shall be done. Id. at 246. ‘Control must be proven; and proof of control requires more than proof of a mere right to determine if the person claimed to be an agent is conforming to the requirements of a contract.’ Malmberg v. American Honda Motor Company, Inc., 644 So.2d 888 (Ala.1994).”

Glass v. Southern Wrecker Sales, 990 F.Supp. 1344, 1352 (M.D.Ala.1998). Although the record demonstrates that Walter Mitchell directed SMHA to “fix” the Franklins’ HVAC system, the Franklins presented no evidence, much less substantial evidence, indicating that Mitchell directed the manner in which SMHA should accomplish the repairs. Furthermore, the Franklins presented no evidence to contradict Mitchell’s assertions that he had not supervised, paid for, or provided any materials for the repairs and that he had not been present when the repairs were made. Therefore, the Franklins failed to establish that, when SMHA performed repairs on the Franklins’ premises, it was acting as Mitchell’s agent.

Moreover, no matter by whose agency, pursuant to what duty, or under what compulsion the repairs were performed, it is undisputed that the Franklins suffered no damages as a consequence of the allegedly negligent repairs. In deposition testimony, Charles Franklin stated unequivocally that, although the repairs did not solve the moisture problem, they did not make the problem worse. Because “[d]amages are an essential element of the tort of negligence,” Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330, 335 (Ala. 2006), the trial court did not err in entering a summary judgment in favor of Walter Mitchell on the subsequent-negligent-repairs claim.

Conclusion

The Franklins did not file their complaint within two years of the accrual of their. negligent-construction claim. They failed to present substantial evidence demonstrating either that the delay in filing the complaint was attributable to a fraudulent concealment of their cause of action by Walter Mitchell, or that they suffered any damages as a result of allegedly negligent repairs to their HVAC system. Accordingly, we affirm the trial court’s judgment in all respects.

AFFIRMED.

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

      . Apparently, a boot is the housing for an air vent.

      . Notwithstanding the fact that the trial court did not expressly rule on Walter Mitchell’s third-party claims, the judgment appealed from is final. The third-party claims, being dependent upon the liability of Mitchell to the Franklins, were necessarily denied when the trial court entered a judgment in favor of Mitchell and against the Franklins.


text:
    Harold F. PARKER III v. Sherri O. PARKER.
    2100634.
    Court of Civil Appeals of Alabama.
    Jan. 6, 2012.

      John M. Lassiter, Jr., Mobile, for appellant.
    Submitted on appellant’s brief only.
   BRYAN, Judge.

Harold F. Parker III (“the father”) appeals from a judgment entered in a postdi-vorce proceeding insofar as it denied his request that the Mobile Circuit Court (“the trial court”) modify the judgment divorcing him from Sherri 0. Parker (“the mother”) to require the mother to pay child support. We reverse and remand.

The father and the mother were divorced by a judgment (“the divorce judgment”) entered by the trial court on July 25, 2006. The divorce judgment awarded the father primary physical custody of the parties’ minor child (“the child”) and awarded the mother visitation. The divorce judgment did not order the mother to pay child support.

On April 13, 2010, the father instituted a postdivorce proceeding requesting that the trial court modify the divorce judgment by, among other things, ordering the mother to pay child support. Following a bench trial at which it received evidence ore ten-us, the trial court, on January 5, 2011, entered a judgment. Although the judgment did not expressly rule on the father’s request for child support, it stated that “any matter not otherwise specifically addressed by this Order shall be deemed denied.” On January 10, 2011, the father challenged the trial court’s failure to modify the divorce judgment to require the mother to pay child support in a Rule 59(e), Ala. R. Civ. P., postjudgment motion. At the hearing on his postjudgment motion, the father argued that he had proved that a material change had occurred in the needs of the child and in the mother’s ability to pay child support since the entry of the divorce judgment and, therefore, that he was entitled to a judgment modifying the divorce judgment to require the mother to pay child support. On February 24, 2011, the trial court entered an order denying the father’s post-judgment motion. The father then timely appealed to this court.

Because the trial court received ore tenus evidence, our review of its judgment is governed by the following principles:

“ ‘ “ ‘[Wjhen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Phil-pot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘“The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Wattman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

The father argues that the trial court erred in denying his request that it modify the divorce judgment to require the mother to pay child support because, he says, he proved that a material change had occurred in the needs of the child and in the mother’s ability to pay child support since the entry of the divorce judgment.

“An award of child support may be modified only upon proof of a material change of circumstances that is substantial and continuing. Browning v. Browning, 626 So.2d 649 (Ala.Civ.App.1993). The parent seeking the modification bears the burden of proof. Cunningham v. Cunningham, 641 So.2d 807 (Ala.Civ.App.1994). Whether circumstances justifying modification of support exist is a matter within the trial court’s discretion. Id. We will not disturb the trial court’s decision on appeal unless there is a showing that the trial court abused that discretion or that the judgment is plainly and palpably wrong. Id.; Douglass v. Douglass, 669 So.2d 928, 930 (Ala.Civ.App.1995).”

Romano v. Romano, 703 So.2d 374, 375 (Ala.Civ.App.1997). “The standard for determining changed circumstances is the increased needs of the child and the ability of the parent to respond to those needs.” Campbell v. Tolbert, 656 So.2d 828, 829 (Ala.Civ.App.1994).

In Daniels v. Daniels, 4 So.3d 479, 482-83 (Ala.Civ.App.2007), this court stated:

“Under Rule 32(B)(5), Ala. R. Jud. Admin., a trial court ‘shall’ impute income to a parent and calculate his or her child-support obligation based upon that parent’s potential income if ‘the court finds that [the] parent is voluntarily unemployed or underemployed.’ This court, noting that the language of Rule 32 is mandatory, has held that when a trial court finds a parent to be voluntarily unemployed or underemployed, it is required to impute income to that parent. T.L.D. v. C.G., 849 So.2d 200, 206 (Ala.Civ.App.2002). The determination of whether a parent paying child support is voluntarily underemployed or unemployed is discretionary with the trial court. Mitchell v. Mitchell, 723 So.2d 1267 (Ala.Civ.App.1998). ‘A determination that a parent is voluntarily unemployed or underemployed “is to be made from the facts presented according to the judicial discretion of the trial court.” ’ Berryhill v. Reeves, 705 So.2d 505, 507 (Ala.Civ.App.1997) (quoting Winfrey v. Winfrey, 602 So.2d 904, 905 (Ala.Civ.App.1992)). Under Rule 32(B)(5), Ala. R. Jud. Admin.,
‘“[i]n determining the amount of income to be imputed to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earning level of that parent, based on that parent’s recent work history, education, and occupational qualifications, and on the prevailing job opportunities and earning levels in the community.’ ”

In the case now before us, the following facts were established by undisputed evidence. The child was 9 years old when the parties divorced and 13 years old when this postdivorce proceeding was tried. Before the entry of the divorce judgment, the mother and the father had agreed that the mother would not have to pay child support, and the divorce judgment incorporated that agreement. The parties had agreed that the mother would not have to pay child support because she had no job training and had not been employed during the marriage and the father thought that he could support the child without assistance from the mother. Since the parties’ divorce, the cost of supporting the child had increased due to the child’s increase in age from 9 years old to 13. During 2010, the mother worked at a motel for a while, then worked at a convenience store for a while, and finally worked at a gas station for a while. She worked approximately 30 hours per week at each of those jobs. She earned $7.25 per hour at the motel, $7.50 per hour at the convenience store, and $7.25 per hour at the gas station. She voluntarily quit the job at the gas station approximately two weeks before the trial because “the management” used “foul language.” She was actively looking for a job when this proceeding was tried. The mother was living with her parents and was spending approximately $75 per month on cigarettes. She admitted that she could pay some amount of child support instead of smoking. When asked if she was willing to pay child support, the mother’s answer was “[w]hatever the Court allows.”

The evidence regarding the termination of the mother’s jobs at the motel and convenience store was in conflict. The mother testified that she was laid off from those two jobs, whereas the child testified that the mother had told him that she had quit those jobs “because they were being stupid.” However, as noted above, the evidence was undisputed that the mother had voluntarily quit the job at the gas station approximately two weeks before trial because “the management” used “foul language.”

Because the undisputed evidence established that the mother had voluntarily quit her job at the gas station approximately two weeks before trial because “the management” was using “foul language,” we conclude that the undisputed evidence established that the mother was voluntarily unemployed within the meaning of Rule 32(B)(5), Ala. R. Jud. Admin. Consequently, we conclude that the trial court exceeded its discretion in impliedly finding that the mother was not voluntarily unemployed. Moreover, the undisputed evidence established that there had been a material change in the needs of the child since the entry of the divorce judgment. Furthermore, the undisputed evidence established that there had been a material change in the ability of the mother to respond to the child’s needs since the entry of the divorce judgment because, although she had had no job training and had been unemployed during the marriage, the mother had held three jobs during 2010 and had voluntarily quit the last of those jobs approximately two weeks before the trial of this case. Accordingly, we conclude that the trial court exceeded its discretion in denying the father’s request that it modify the divorce judgment to require the mother to pay child support. Accordingly, we reverse the judgment of the trial court and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    Thomas KING v. Jacklyn KING.
    2100480.
    Court of Civil Appeals of Alabama.
    Jan. 6, 2012.
    William D. Cornelius IV, Tuscumbia, for appellant.
    Submitted on appellant’s brief only.
   PER CURIAM.

Thomas King (“the former husband”) appeals from a judgment of the Colbert Circuit Court denying his Rule 60(b), Ala. R. Civ. P., motion. We dismiss the appeal as untimely.

On January 3, 2008, Jacklyn King (“the former wife”) filed a complaint seeking a divorce from the former husband. That same day the former husband answered the divorce complaint and the parties filed a settlement agreement in the trial court. On January 20, 2008, the parties filed an amended agreement, which listed an additional asset and incorporated and adopted all other provisions of the previously filed settlement agreement. On February 2, 2008, the trial court entered a judgment divorcing the parties that incorporated the parties’ amended agreement.

On January 12, 2009, the former husband filed a Rule 60(b) motion. The hearing on that motion was continued numerous times. On August 10, 2009, before the trial court had ruled on the former husband’s Rule 60(b) motion, the former husband filed what he styled as a “Motion to Vacate or Set Aside Previously Entered Order and Set this Cause for Evidentiary Hearing,” in which he requested that the trial court vacate its February 2, 2008, divorce judgment because, he alleged, the divorce judgment was ambiguous and the former wife had fraudulently induced him into executing the settlement agreement incorporated into the divorce judgment. The “Motion to Vacate or Set Aside Previously Entered Order and Set this Cause for Evidentiary Hearing” was, in effect, another Rule 60(b) motion in which the former husband specifically outlined the grounds upon which he argued that the trial court should grant relief from the February 2, 2008, divorce judgment. On August 26, 2009, the former wife filed a motion for contempt against the former husband. The trial court conducted a hearing on October 5, 2010, regarding the former husband’s motions and the former wife’s motion for contempt. Following the hearing, the trial court entered an order on October 19, 2010, finding the former husband in contempt and denying the former husband’s motion to set aside the divorce judgment pursuant to Rule 60(b).

On November 16, 2010, the former husband filed a motion styled as a “Motion for New Trial/Reconsideration,” requesting that the trial court reconsider its denial of his 60(b) motion. The trial court purported to deny the “Motion for New Trial/Reconsideration” on February 10, 2011. Subsequently, on February 22, 2011, the former husband filed a notice of appeal to this court.

It is well settled that
“[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); see also Williams v. Williams, 70 So.3d 332, 334 (Ala.Civ.App.2009) (dismissing an appeal as untimely because of the appellant’s failure to timely appeal from the denial of his first postjudgment motion); Wadsworth v. Markel Ins. Co., 906 So.2d 179, 182 (Ala.Civ.App.2005) (same); Reeves v. State, 882 So.2d 872, 874 (Ala.Civ.App.2003) (same); and Moser v. Moser, 839 So.2d 664, 665 (Ala.Civ.App.2002) (same).

In this case, the trial court denied the former husband’s Rule 60(b) motion on October 19, 2010. The former husband did not file a notice of appeal until February 22, 2011, which was more than 42 days after the denial of his Rule 60(b) motion. See Rule 4(a), Ala. R.App. P. The subsequent postjudgment motion asking the trial court to “reconsider” its denial of the Rule 60(b) motion did not suspend the time for filing a notice of appeal. See Ex parte Keith, 771 So.2d at 1022. Thus, the former husband failed to timely appeal the denial of his Rule 60(b) motion.

Accordingly, because the February 22, 2011, notice of appeal, which was filed more than 42 days after the October 19, 2010, denial of the former husband’s Rule 60(b) motion, was untimely, we dismiss this appeal.

APPEAL DISMISSED.

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