source: Caselaw Access Project

author: MOORE, Judge. BRYAN, Judge,

license: Public Domain

text:
    Timothy Leon BLAKLEY and Angela Machelle Blakley v. Terrence Maurice JOHNSON and M & M Trucking, Inc.
    2090507.
    Court of Civil Appeals of Alabama.
    Oct. 29, 2010.
    Rehearing Denied Dec. 17, 2010.
    Certiorari Denied Sept. 9, 2011 Alabama Supreme Court 1100384.

      Jerry N. Quick, Pinson, for appellants.
    Deborah Alley Smith, Aubrey J. Holloway, and Abbott M. Jones of Christian & Small LLP, Birmingham, for appellees.
   MOORE, Judge.

Timothy Leon Blakley and his wife, Angela Machelle Blakley, appeal from a judgment entered on a jury verdict in favor of Terrence Maurice Johnson and M & M Trucking, Inc. We affirm.

Procedural Background

On September 26, 2008, the Blakleys sued Johnson and Johnson’s employer, M & M Trucking, asserting claims of negligence and wantonness. The Blakleys’ claims were based on injuries sustained by Timothy in a May 11, 2007, motor-vehicle accident involving Timothy, who was driving a logging truck, Johnson, who was driving a tanker truck, and a “green car” that left the scene of the accident. The Blakleys sought compensatory and punitive damages; they also demanded a jury trial. Johnson and M & M Trucking answered the complaint, denying all claims for relief and asserting various affirmative defenses, including contributory negligence.

On August 26, 2009, the case was tried before a jury. At the close of the Blak-leys’ case-in-chief and again at the close of all the evidence, Johnson and M & M Trucking moved for a judgment as a matter of law (“JML”). The trial court denied the motion as to the negligence claim, but it subsequently indicated that it would not submit the Blakleys’ wantonness claim to the jury.

At the close of all the evidence, the Blakleys moved for a JML in their favor. They relied on their previously filed written motion for a JML. The trial court denied the Blakleys’ motion. At that same time, the Blakleys objected to certain of the trial court’s jury instructions.

On August 27, 2009, the jury returned a verdict in favor of Johnson and M & M Trucking, and, on that same date, the trial court entered a judgment on that verdict. On September 23, 2009, the Blakleys moved for a new trial. See Rule 59, Ala. R. Civ. P. After a November 13, 2009, hearing, the trial court denied the Blak-leys’ postjudgment motion on that same date.

The Blakleys timely appealed to the Alabama Supreme Court. That court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Evidentiary Background

State Trooper Dewayne Allums was an eyewitness to the accident in question. He testified that, on May 11, 2007, he was driving south on Interstate Highway 65 (“1-65”) in Chilton County when he saw a stranded vehicle on the side of the highway. Another driver had pulled over to assist the first driver. Allums turned on his blue lights and parked his patrol unit on the shoulder of the roadway approximately 70 feet behind the two vehicles; Allums testified that, based on his training as a state trooper, he had parked his vehicle behind the stranded motorist and close to the roadway to provide a buffer between the stranded motorist and oncoming traffic. Allums testified that his vehicle was parked on the shoulder of the road but was positioned so close to the road that the side-view mirror on his driver’s door extended over the white line and into the roadway. Allums waited in his patrol car while the motorists attended to the disabled vehicle.

While in his patrol car, Allums observed traffic and the surrounding conditions. According to Allums, traffic was light to medium. He observed cars, pickup trucks, “SUVs,” and commercial vehicles passing his patrol unit in the right lane of the highway. Allums also testified that the vision in his rear-view mirror was clear for at least one-half mile.

Allums testified that he observed a tanker truck approaching his parked patrol car in the right lane of 1-65. When Allums first observed the tanker truck, it was approximately one-half mile away. Allums testified that the tanker truck slowed to 5 to 10 miles per hour and that the driver would “stop, roll forward, stop, roll forward. And during that time, [the driver] eventually put his left turn signal on.” Allums estimated that the tanker truck was approximately 20 feet behind his patrol car when the driver of the tanker truck activated the left-turn signal. Although unknown to Allums at that time, Johnson was driving the tanker truck.

Allums testified that he also saw a green car, which Allums described as an olive-green Cadillac, traveling very slowly in the left-hand lane; Allums estimated that the green car was traveling at a rate of 5 to 10 miles per hour. Allums also saw a logging truck, driven by Timothy, behind the green car but “further on down the road.” Allums estimated that the logging truck was moving at approximately 30 to 35 miles per hour.

According to Allums, the tanker truck attempted to change from the right lane to the left lane. Allums testified that the tanker truck did not completely cross into the left lane but that it did cross the center line. Allums testified that both the tanker truck and the green car had been moving at a very slow speed, so the driver of the green car had not had to “slam on its brakes” when the tanker truck attempted to change lanes. Allums also testified that, at the time the tanker truck attempted to change lanes, the logging truck was approximately 100 to 200 feet behind the green car and was traveling less than 30 miles per hour. Allums then testified:

“I could see the log truck coming. The log truck, in my opinion, was going to run over the [green car]. So that driver, he made an evasive maneuver. He went off into the median to the left. As he went off into the median to the left, it appeared he was going to come back on smoothly. But all of a sudden, the log truck just overturned. It overturned on the driver’s side. Logs were everywhere.”

Allums also testified that he could tell that Timothy was reducing the speed of the logging truck, presumably referring to the point in time that the logging truck was approaching the green car or approaching Allums’s parked patrol car, but that he could not tell if Timothy was braking or if he was simply no longer accelerating. Al-lums also testified that, in his opinion, the tanker truck could have passed his patrol car safely without changing from the right lane to the left lane of the highway.

Timothy testified that, on the day in question, he was pulling a load of logs in the right lane of 1-65. A green car was traveling in front of him. Timothy heard over the “CB” radio that a state trooper and a disabled vehicle were on the side of the highway ahead of him. When the state trooper’s patrol car came into view in the distance, Timothy moved his truck into the left lane. Timothy testified that, at that time, he was traveling approximately 65 miles per hour. He also recalled seeing a tanker truck ahead of him in the right lane. According to Timothy, the tanker truck was virtually sitting still.

Timothy testified that he began slowing the speed of the logging truck when the green car ahead of him merged over from the right lane into the left lane in front of him. Timothy estimated that, at that point, his logging truck was traveling “maybe fifty [miles per hour].” Timothy recalled being a few truck lengths behind the green car, but, according to Timothy’s testimony on cross-examination, the green car’s rate of speed was faster than that of his logging truck. Timothy testified that, as his logging truck and the green car came up to the tanker truck, the tanker truck “come over in front of us”; he also testified that the green car was “real close to the rear tandem of the tanker’s trailer.” According to Timothy, the tanker truck came over into the left lane and immediately went back into the right lane. He testified that Johnson never signaled before moving into the left lane. Timothy testified that he realized he was going to hit the green car so he drove the logging truck into the median, where it overturned.

Timothy walked away from the accident and initially refused to go to the emergency room. According to medical records, however, he subsequently began experiencing pain and went to the emergency room approximately seven hours after the accident. Timothy ultimately underwent surgery on his neck and his shoulder. Timothy’s injuries and medical treatment were covered under the Alabama Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq. At the trial, Timothy acknowledged that his memory had been affected as a result of the accident.

Marissa Lee, who witnessed the accident, testified that she was following the logging truck being driven by Timothy on the day of the accident. She and Timothy were in the left lane of 1-65 and were approaching the state trooper’s patrol car, which was parked on the right shoulder of the highway. She observed the tanker truck in the right lane. Lee testified that, as she and the logging truck approached the patrol car, she noticed that the tanker truck “swung over into the left-hand lane abruptly. The next thing I noticed was the log truck had put on his brakes and then veered off the road and flipped.” Lee denied noticing rates of speed, whether the tanker truck signaled before moving toward the left lane, or seeing any vehicle in front of the logging truck. In her opinion, however, the tanker truck had attempted to make a sudden movement into the left lane.

Johnson, the driver of the tanker truck, testified that he had been traveling in the right lane of traffic at the posted speed limit and that, when he saw the state trooper’s patrol car, he had slowed his speed, eventually reaching approximately five miles per hour. He testified that, upon seeing the state trooper’s patrol car parked on the shoulder of the highway, he activated his left-turn signal because he did not believe that he could pass the trooper’s patrol car in the right lane. Johnson claimed that he checked his rear-view mirror, that he saw a green car in the left lane a small distance behind him, and that he had clearance to cross over into the left lane in front of the green car. According to Johnson, the driver of the green car had flashed the car’s lights at him, indicating to Johnson that he could proceed in front of it. Johnson testified that he crossed over the center line and into the left lane only enough to drive around the patrol car and then moved back into the right lane. Johnson then saw in his rear-view mirror that the logging truck had driven into the median of the highway and had overturned.

Whether the Trial Court Erred to Reversal in Denying the Blakleys’ Motion for a JML

The Blakleys argue that the trial court erred in denying their motion for a JML.

“In Delchamps, Inc. v. Bryant, 738 So.2d 824 (Ala.1999), our supreme court explained the standard of review applicable to a trial court’s ruling on a motion for a judgment as a matter of law:
“ ‘When reviewing a ruling on a motion for a [judgment as a matter of law (“JML”) ], this Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question, is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11, 1987, the nonmovant must present “substantial evidence” in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996). Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).’
738 So.2d at 830-31.”

Leonard v. Cunningham, 4 So.3d 1181, 1184 (Ala.Civ.App.2008). Using this standard of review, we review the Blakleys’ negligence claim to determine if it was properly submitted to the jury for resolution.

“The elements of a negligence claim are a duty, a breach of that duty, causation, and damage.” Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 679 (Ala.2001). Although the Blakleys argue that they presented “reliable/uncontrovert-ed/material” evidence to the trial court in support of their negligence claim, the record establishes that the evidence presented as to the elements of breach of duty and causation was disputed.

For example, the parties presented conflicting evidence as to whether Johnson’s decision to merge into the left lane and his subsequent attempt to do so were reasonable based on the conditions present on the day of the accident. Timothy testified that, as a result of Johnson’s abrupt lane change, Timothy was forced to drive his logging truck into the median, where it overturned. Johnson, however, testified to the steps he took to ascertain that he could safely change lanes before merging into the left lane and that, in his opinion, it had been safe to merge into the left lane and that he did so to avoid the patrol car and the stranded motorists parked on the shoulder of the highway.

The trial court also heard conflicting evidence regarding whether the affirmative defense of contributory negligence barred any recovery by Timothy, even if Johnson had, in fact, acted negligently in executing the lane change. Johnson presented evidence from which reasonable persons could have concluded that, given the conditions present on the day of the accident, Timothy had operated the logging truck at an unsafe speed or had followed the green car too closely. Conversely, Timothy testified that he had operated his logging truck appropriately and safely but that, as a result of Johnson’s abrupt lane change, he had been forced to choose between colliding with the green car or driving his logging truck into the median of the highway.

Thus, the trial court was presented with conflicting evidence as to whether Johnson breached a duty owed to Timothy and whether Timothy’s actions amounted to contributory negligence. “ ‘ “A [judgment as a matter of law] is proper (1) where the nonmoving party has failed to present substantial evidence regarding some element essential to [his or] her claim, or (2) where there is no disputed issue of fact upon which reasonable persons could differ. Rule 50(a), Ala. R. Civ. P.” ’ ” Robertson v. Gaddy Elec. & Plumbing, LLC, 53 So.3d 75, 80 (Ala.2010) (quoting Spence v. Southern, Pine Elec. Coop., 643 So.2d 970, 971 (Ala.1994), quoting in turn Teague v. Adams, 638 So.2d 836, 837 (Ala.1994)). Because disputed issues of fact remained as to the Blakleys’ claim of negligence, the trial court properly denied the Blakleys’ motion for a JML and submitted that claim for the jury’s resolution.

The Blakleys also argue that Johnson’s lane change amounted to a violation of Ala.Code 1975, § 32-5A-88, and, thus, constituted negligence as a matter of law, i.e., negligence per se. Section 32-5A-88(l) provides that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” Because, the Blakleys argue, Johnson violated a traffic statute, his improper-lane-change violation amounted to negligence per se and, thus, the trial court erred in denying their motion for a JML as to liability on the negligence claim.

The Blakleys, however, failed to specifically argue to the trial court at the close of all the evidence that a JML should be entered in their favor on the basis that the evidence established negligence per se. “A party must make a motion for a directed verdict [now a JML] in order to be entitled to a judgment notwithstanding the verdict [now a postverdict JML]. A motion for a judgment [notwithstanding the verdict] without having moved for a directed verdict at the proper time will be denied.” Committee Comments on 1973 Adoption of Rule 50, Ala. R. Civ. P. That issue, therefore, has been waived for appellate review. Out of an abundance of caution, however, we consider the merits of this claim and conclude that the trial court did not err in denying the Blakleys’ motion for a JML on the basis of negligence per se.

In Consolidated Freightways, Inc. v. Pacheco-Rivera, 524 So.2d 346 (Ala.1988), the executrix of her husband’s estate brought an action for damages against an employee of Consolidated Freightways as a result of an automobile accident caused when the employee was driving on the wrong side of the highway. The executrix alleged that the employee had violated the Alabama Rules of the Road Act, Ala.Code 1975, § 32-5A-1 et seq., more specifically, § 32-5A-88, by driving in the improper lane. Evidence indicated that the automobile in which the husband and the executrix had been traveling had been in the proper lane at the time of the accident. The executrix argued that the trial court had erred when it failed to charge the jury that a violation of the Alabama Rules of the Road Act establish negligence per se.

On appeal, our supreme court affirmed the trial court’s jury charges. Id. at 350. The supreme court stated: “[Wjhere the applicable Rule of the Road requires a judgment to be made on the part of the driver, the reasonable man standard applies and a violation of the statute is not negligence per se. The statute provides that a driver should not move from a lane ‘until [he or she] has first ascertained that such movement can be made with safety.’ Consolidated Freightways, 524 So.2d at 350 (quoting Ala.Code 1975, § 32-5A-88(1)).

In this case, we have already concluded that the evidence at trial was disputed as to whether Johnson acted reasonably in deciding to change lanes to avoid the state trooper’s patrol car and the stranded motorists; we have also concluded that the evidence was disputed as to whether Johnson acted reasonably in the manner in which he executed the lane change. Thus, Johnson was required to make a subjective judgment as to whether he could safely move his tanker truck into the left lane. As a result, any negligence by Johnson in his decision could amount to only simple negligence and not negligence per se. Consolidated Freightways, 524 So.2d at 350. Therefore, the trial court did not err in denying the Blakleys’ motion for a JML as to liability on the basis of negligence per se.

Whether the Trial Court Erred in Failing to Submit the Wantonness Claim to the Jury

The Blakleys next argue that the trial court erred in refusing to submit their wantonness claim to the jury or, stated differently, that the trial court erred in entering sua sponte a JML in favor of Johnson and M & M Trucking as to the Blakleys’ wantonness claim. We find no merit in the Blakleys’ argument.

First, we note that our supreme court has affirmed a trial court’s sua sponte entry of a directed verdict, now referred to as a judgment as a matter of law (see Rule 50, Ala. R. Civ. P.). See Foster v. Life Ins. of Georgia, 656 So.2d 333, 334-36 (Ala.1994) (affirming a directed verdict entered sua sponte in favor of the plaintiff as to an affirmative defense asserted by the defendant because the defendant presented insufficient evidence to warrant submitting that defense for the jury’s consideration). Thus, to the extent the Blakleys argue that the trial court improperly granted relief that had not been sought, we find no merit in that argument.

Additionally,

“ ‘[w]antonness is a question of fact for a jury, unless there is a total lack of evidence from which the jury could reasonably infer wantonness. “Wantonness” is ... 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.’ ”

Allen v. Hill, 758 So.2d 574, 576 (Ala.Civ.App.1999) (quoting McDougle v. Shaddrix, 534 So.2d 228, 231 (Ala.1988)). See also Ala.Code 1975, § 6 — 11—20(b)(3) (defining “wantonness” as “[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others”). “The ‘knowledge’ [of risk of injury] of the defendant is ‘the sine qua non of wantonness.’ ” Norris v. City of Montgomery, 821 So.2d 149, 156 n. 9 (Ala.2001) (quoting Ricketts v. Norfolk Southern Ry., 686 So.2d 1100, 1106 (Ala.1996), quoting in turn Henderson v. Alabama Power Co., 627 So.2d 878, 882 (Ala.1993)).

We find no evidence to support an inference that Johnson acted with the “conscious culpability” required to support a claim of wantonness. See, e.g., Lynn Strickland Sales & Serv., Inc. v. Aero-Lane Fabricators, Inc., 510 So.2d 142 (Ala.1987) (referring to the “conscious culpability” required to support a claim of wantonness). The undisputed evidence established that Johnson saw the state trooper’s flashing lights and slowed the tanker truck’s speed to five miles per hour or less. The evidence also established that Johnson attempted to merge into the left lane because he did not believe he could safely pass the trooper’s patrol car that was on the right shoulder of the highway. Although the evidence was disputed as to whether Johnson safely executed a merger into the left lane and as to whether he signaled his intent to enter the left lane, there was no evidence to dispute Johnson’s testimony that he watched the traffic for a clear opportunity to change lanes or to dispute that the driver of the green car signaled by flashing the vehicle’s lights for Johnson to merge into the left lane.

Based upon that evidence, we agree with the trial court that there was a “total lack of evidence from which the jury could reasonably infer wantonness” such that the Blakleys’ claim of wantonness presented no issue for the jury’s consideration. Allen v. Hill, 758 So.2d at 576. We, therefore, affirm the JML entered in favor of Johnson and M & M Trucking as to the Blakleys’ claim of wantonness.

Whether the Trial Court Erred in Denying the Blakleys’ Motion for a New Trial

The Blakleys also argue that the trial court erred in denying their motion for a new trial. “A jury’s verdict is presumed correct and will not be disturbed unless it is plainly erroneous or manifestly unjust.” Crown Life Ins. Co. v. Smith, 657 So.2d 821, 822 (Ala.1994). “[T]hat presumption is strengthened when the trial court has denied a motion for a new trial.” SouthTrust Bank v. Donely, 925 So.2d 984, 948 (Ala.2005) (citing First Alabama Bank of South Baldwin v. Prudential Life Ins. Co. of America, 619 So.2d 1313 (Ala.1993)). A judgment based upon a jury verdict and sustained by the denial of a postjudgment motion for a new trial will not be reversed unless it is plainly and palpably wrong. National Sec. Ins. Co. v. Donaldson, 664 So.2d 871 (Ala.1995).

In arguing that the trial court erred in denying their motion for a new trial, the Blakleys argue that the verdict was against the great weight of the evidence, they challenge certain of the trial court’s evidentiary rulings and jury instructions, and they assert that the trial court made improper comments to the jury.

In Richardson v. Joines, 574 So.2d 787 (Ala.1991), our supreme court stated that “the trial court is left with no discretion to grant a new trial on a “weight of the evidence’ ground, except when the verdict and the judgment entered thereon are so against the great weight and preponderance of the evidence as to be ‘plainly and palpably’ wrong, i.e., ‘manifestly unjust.’ ” Richardson, 574 So.2d at 788. Additionally, we must “review the evidence in the light most favorable to the prevailing party and must indulge all reasonable inferences that the jury was free to draw.” Floyd v. Broughton, 664 So.2d 897, 900 (Ala.1995). “[N]o ground for granting a new trial will be more carefully scrutinized or more rigidly limited than that the verdict is contrary to the weight of the evidence.” Delchamps, Inc. v. Larry, 613 So.2d 1235, 1239 (Ala.1992).

We previously have concluded that the trial court did not err in denying the Blak-leys’ motion for a JML as to their negligence claim, i.e., that the trial court correctly found disputed issues of material fact sufficient to submit the negligence claim for the jury’s consideration. Because reasonable inferences drawn from the disputed evidence support the jury’s verdict in favor of Johnson and M & M Trucking, the trial court did not err in denying the Blakleys’ motion for a new trial on the ground that the verdict was against the great weight of the evidence. See, e.g., Syx v. Button, 894 So.2d 715 (Ala.Civ.App.2004) (evidence was sufficient to support jury’s verdict for defendant in negligence action arising from automobile accident, and trial court erred in granting new trial on the ground that the jury’s verdict was against great weight of evidence).

The Blakleys also argue that the trial court’s evidentiary rulings rose to the level of reversible error, justifying a new trial. The Blakleys first challenge the trial court’s ruling on Johnson and M & M Trucking’s motion in limine, excluding at the trial all evidence relating to a traffic citation purportedly received by Johnson for an “improper lane change.” We find no reversible error.

In Bush v. Alabama Farm Bureau Mutual Casualty Insurance Co., 576 So.2d 175 (Ala.1991), the trial court granted Farm Bureau’s motion in limine and prohibited the Bushes, the insureds, from presenting any evidence pertaining to certain affirmative defenses Farm Bureau previously had asserted to the Bushes’ counterclaim. Id. at 178. After the trial court entered a judgment on the jury’s verdict in favor of Farm Bureau, the Bushes appealed, arguing that the trial court had erred in granting Farm Bureau’s motion in li-mine. Id.

On appeal, the Bushes argued that the prohibited evidence constituted the basis of their claims at trial and that the trial court’s order had been a “prohibitive, absolute order.” Id. at 177. Our supreme court affirmed the trial court’s evidentiary ruling and stated:

“We recognize that the trial court has broad discretion in evidentiary matters. The general rule was stated in State v. Askew, 455 So.2d 36 (Ala.Civ.App.1984), citing C. Gamble, The Motion in Li-mine: A Pretrial Procedure That Has Come of Age, 33 Ala. L.Rev. 1 (1981), as follows:
“ ‘In keeping with the vesting of broad discretion in the trial court in this area, it is generally held that the granting of a motion in limine can never be reversible error. The non-moving party may repeat at trial, preferably out of the hearing of the jury, his request for permission to prove the contested matter. This offer of proof is required in order to isolate the error for appeal. It is this refusal at trial to accept that proffered evidence, not the granting of the pretrial motion in limine, that serves as the basis for reversible error. Of course, this ability to bring up the matter a second time would not be available if counsel had requested and the judge had granted a prohibitive-absolute motion in limine.’
455 So.2d at 37 (Ala.Civ.App.1984). In Perry v. Brakefield, 534 So.2d 602, 607 (Ala.1988), this Court cited Professor Gamble and stated: ‘The clear holding of these cases is that unless the trial court’s ruling on the motion in limine is absolute or unconditional, the ruling does not preserve the issue for appeal.’ 534 So.2d at 606.”

576 So.2d at 177-78. The supreme court in Bush concluded that, because the trial court had not precluded counsel for the Bushes from making an offer of proof of the excluded evidence at trial, the trial court’s ruling on the motion in limine had not been absolute or unconditional. Id. at 178. The court further concluded that, because the record did not reflect an offer of proof by the Bushes at trial concerning the excluded evidence, the Bushes had failed to preserve the error for appellate review. Id. See also Simmons v. Peacock, 636 So.2d 452 (Ala.Civ.App.1994) (whether trial court erred in granting motion in limine was not preserved for appellate review when it did not appear from the record that the trial court’s ruling was absolute or unconditional and the record did not establish that an offer of proof had been made).

In this case, the trial court granted the motion in limine filed by Johnson and M & M Trucking and directed the Blakleys’ counsel not to inquire about the traffic citation at trial. As in Bush, supra, there is no evidence indicating that the ruling on that motion was absolute or unconditional or that the trial court prohibited the Blak-leys’ counsel from making an offer of proof regarding that evidence. Thus, in order to preserve any error in the trial court’s evi-dentiary ruling, the Blakleys were required to make an offer of proof regarding the excluded evidence. We find no such offer of proof in the record. Thus, the Blakleys have not preserved this argument for appellate review and we need not address it. Bush, supra; and Simmons, supra.

The Blakleys also argue that the trial court erred in sustaining an objection to questions asked by their attorney of State Trooper Allums as to whether he believed Johnson had violated the Alabama Rules of the Road Act on the day of the accident. We need not address this issue because the Blakleys failed to make an offer of proof as to Allums’s expected response and his answer was not apparent from the context of the question. Thus, any error presented by the trial court’s ruling was not preserved for appellate review. See Rule 103(a)(2), Ala. R. Evid. (recognizing that error may not be predicated upon a ruling excluding evidence unless a substantial right of the party is affected and the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked); and II Charles W. Gamble and Robert J. Goodwin, McElroy’s Alabama Evidence § 425.01(4) (6th ed. 2009) (“If the trial court sustains an objection made to a question which does not on its face show what is the expected answer, it then becomes the duty of the questioning party, in order to predicate review upon this as an erroneous ruling, to make an offer of proof.”).

The Blakleys next argue that they are entitled to a new trial because the trial court erred by failing to instruct the jury that it was the “sole judge of the facts” presented during the trial.

“ ‘ “In a jury case, a party is entitled to have its case tried to a jury that is given the appropriate standard by which to reach its decision, and a wrongful refusal of a requested jury charge constitutes a ground for a new trial. See, C.I.T. Financial Services, Inc. v. Bowler, 537 So.2d 4 (Ala.1988). An incorrect, misleading, erroneous, or prejudicial charge may form the basis for granting a new trial. See, Nunn v. Whitworth, 545 So.2d 766 (Ala.1989). However, the refusal of a requested, written instruction, although a correct statement of the law, is not cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the trial court’s oral charge. See, Rule 51, Ala. R. Civ. P. When examining a charge asserted to be erroneous, this Court looks to the entirety of the charge to see if there is reversible error. See, Grayco Resources, Inc. v. Poole, 500 So.2d 1030 (Ala.1986).” ’
“Cackowski v. Wal-Mart Stores, Inc., 767 So.2d 319, 327 (Ala.2000) (quoting Shoals Ford, Inc. v. Clardy, 588 So.2d 879, 883 (Ala.1991)). Additionally, ‘[a]ny error or defect which does not affect the substantial rights of the parties may be disregarded.’ Bishop v. State Auto. Mut Ins. Co., 600 So.2d 262, 265 (Ala.Civ.App.1991) (citing Rule 61, Ala. R. Civ.App.). As a result, the jury instruction must be erroneous as well as prejudicial, and this Court cannot presume prejudice. Brabner v. Canton, 611 So.2d 1016, 1018 (Ala.1992). Preferred, Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165, 167 (Ala.1991). The appellant has the burden of demonstrating that an erroneous jury instruction was prejudicial. See Ryan, 589 So.2d at 167 (citing Dinmark v. Farrier, 510 So.2d 819 (Ala.1987)).”

Southeast Envtl. Infrastructures, L.L.C. v. Rivers, 12 So.3d 32, 43-44 (Ala.2008).

We find no merit in the Blakleys’ argument that the trial court erred by failing to instruct the jury that it was the “sole judge of the facts.” Although the Blakleys never submitted a proposed jury instruction to the trial court requesting such an instruction, the trial court’s instructions, when viewed in their entirety, establish that the instructions given were adequate.

In its instructions to the jury, the trial court repeatedly instructed the jurors that it was within their “province alone” to resolve disputed evidence and to accept or reject any or all of a witness’s testimony. The trial court also instructed the jurors that they were the “sole judges” of the amount of damages to be assessed in the event they found Johnson and M & M Trucking liable to the Blakleys. The trial court repeatedly referred to the jurors’ ability to evaluate, during their deliberations, the facts and testimony presented at the trial. Thus, we conclude that the trial court’s instructions, as a whole, did not rise to reversible error on the issue asserted.

The Blakleys also argue that the trial court improperly instructed the jury on the burden of proof applicable in this case by stating to the jury at the beginning of the trial: “I would suggest that you [the jurors] hold their [the lawyers’] feet to the fire because if they [the lawyers] tell you they can prove something, make them do it.” The Blakleys, however, failed to lodge an objection to the trial judge’s statement, and, thus, any error as to this statement by the trial judge is deemed waived. See Beiersdoerfer v. Hilb, Rogal & Hamilton Co., 953 So.2d 1196, 1207 (Ala.2006), and note 6, supra. Further, although we find nothing improper or prejudicial in the statement, to the extent the trial judge’s statement could be considered improper, the Blakleys have not assigned as error the trial court’s subsequent charge to the jury, in which the trial court addressed the burden of proof. Thus, the trial court’s subsequent instructions are deemed adequate and no reversible error is presented. See Southeast Envtl. Infrastructures, supra (when the jury charge, in its entirety, is appropriate and in compliance with the law, no reversible error is presented).

The Blakleys also assert that, at the trial, the trial judge improperly commented upon the evidence and that such comments improperly influenced the jury’s analysis of the evidence.

“[A] trial judge may not express an opinion on the weight and effect of the evidence in a jury trial. ... Not all statements by the trial court fall into this category, however. When ... the statements by the trial court are made to counsel and are made in ruling on an objection or in explaining a ruling on an objection, the statements will not be considered improper comments on the evidence except in extreme cases.”

Keller v. American Med. Int’l, Inc., 534 So.2d 244, 245 (Ala.1988).

In Bryant v. State, 727 So.2d 870 (Ala.Crim.App.1998), the Alabama Court of Criminal Appeals stated:

“ ‘ “The law does not prohibit the trial judge from giving trial counsel his reasons in making certain rulings as to the law applicable to the case.... Bedingfield v. State, [47 Ala.App. 677, 681, 260 So.2d 408, 412 (1972) ].
“ ‘ “In 23 C.J.S., Criminal Law § 993, p. 1024, it is said, ‘Generally, it is not improper comment on the evidence for the judge to explain his ruling on a matter of law, and he may refer to testimony and state its legal effect, in deciding a point raised during trial.’ ” ’ ”

727 So.2d at 874 (quoting Hampton v. State, 620 So.2d 99, 103 (Ala.Crim.App.1992), quoting in turn McDonald v. State, 340 So.2d 80, 83 (Ala.Crim.App.1976)).

The Blakleys complain that the trial judge commented, in ruling on an objection: “I don’t remember it that way. I sustain the objection.” The Blakleys also complain that, in response to their attorney’s statement that he was “offended” by a statement made by Johnson’s counsel, the trial judge stated: “I didn’t hear anything about [the Blakleys’] sex life.” Those comments by the trial judge simply explained to counsel the trial court’s rulings, and, pursuant to Keller, supra, and Bryant, supra, we find no reversible error.

AFFIRMED.

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

BRYAN, J., concurs in part and concurs in the result, with writing.

BRYAN, Judge,

concurring in part and concurring in the result.

Because I would explain the rationale for affirming the trial court’s sua sponte entry of a judgment as a matter of law (“JML”) in favor of Johnson and M & M Trucking with respect to the Blakleys’ wantonness claim in a different manner than the main opinion, I concur in the result with respect to that holding. I would explain the rationale for that holding as follows. “ ‘Wantonness’ has been defined by [the supreme 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.” Ex parte Essary, 992 So.2d 5, 9 (Ala.2007). In the case now before us, although the evidence indicates that Johnson consciously moved the tanker truck into the left lane, there was no evidence from which the trier of fact could reasonably infer that Johnson was conscious, aware, or perceived that his moving the tanker truck into the left lane would make it necessary for either the green automobile or the logging truck to leave the road in order to avoid a collision. Thus, there was no evidence from which the trier of fact could reasonably infer that Johnson was conscious, aware, or perceived that injury was likely to, or probably would, result from his moving the tanker truck into the left lane. See Ex parte Essary, 992 So.2d at 12. Viewed in the light most favorable to the Blakleys, the evidence tends to prove, at most, that Johnson erroneously thought that he could safely move the tanker truck into the left lane; that does not constitute wantonness. Id. Consequently, the trial court did not err in sua sponte entering a JML in favor of Johnson and M & M Trucking with respect to the Blakleys’ wantonness claim.

In all other respects, I concur in the main opinion.

      . Angela asserted a derivative claim of loss of consortium.

      . Allums recalled seeing an olive-green Cadillac in front of the logging truck being driven by Timothy. Timothy recalled the car in front of him as a green Cadillac Escalade, while Johnson recalled the car as a green Chevrolet Cavalier. Because this factual dispute is not relevant to the case, we simply refer to the car in front of Timothy’s vehicle as a "green car.”

      . The testimony at this point is confusing and contradictory as to speeds and points in time at which different events occurred.

      . Despite Timothy's testimony regarding speeds and positioning, the tanker truck did not strike the green car and the green car never stopped.

      . Section 32-5A-88 is part of the "Alabama Rules of the Road Act,” Ala.Code 1975, § 32-5A-1 et seq.

      . On appeal, the Blakleys have not challenged the trial court’s failure to instruct the jury on their theory of negligence per se. Any such challenge would have been waived for appellate review because the Blakleys failed to object to the trial court's refusal to give their requested instructions on that theory. See Beiersdoerfer v. Hilb, Rogal & Hamilton Co., 953 So.2d 1196, 1207 (Ala.2006) ("By not objecting to the trial court's failure to charge the jury regarding his promissory-fraud claim, Beiersdoerfer waived his promissory-fraud claim....”).

      .The Blakleys asserted that argument in their written motion for a JML, which is found in the record. That written motion was undated and unsigned. They did not, however, argue that issue in support of their motion at the close of all the evidence.

      . That traffic citation was subsequently dismissed.


author: PITTMAN, Judge.

text:
    CITY OF MONTGOMERY v. Mary Ann PATTERSON.
    2090960.
    Court of Civil Appeals of Alabama.
    May 20, 2011.
    Rehearing Denied Sept. 23, 2011.

      Jason C. Paulk, Legal Department, City of Montgomery, for appellant.
    Fred F. Bell, Montgomery, for appellee.
   PITTMAN, Judge.

The City of Montgomery (“the City”) appeals from a judgment, entered after an ore tenus proceeding, of the Montgomery Circuit Court entered in favor of the plaintiff, Mary Ann Patterson, in her civil action against the City in which she asserted a single negligence claim; the trial court ruled that the plaintiff should recover $35,500 from the City, a damages amount placing the City’s appeal within this court’s exclusive appellate jurisdiction under Ala. Code 1975, § 12-3-10. We reverse the trial court’s judgment and remand the cause for the entry of a judgment dismissing the plaintiffs action.

The plaintiff sued the City in November 2008, alleging in her complaint that she had been injured while attending a football game in November 2006 that had been played at a football stadium operated by the City, Cramton Bowl; the complaint further alleged that, while the plaintiff was standing in a concession-stand line at that facility on the date in question, an overhead window covering collapsed, striking her head. The plaintiff also averred in her complaint that her injuries were the result of the City’s negligence and that she had filed a verified claim with the City in February 2007 for compensation therefor. The City filed a motion to dismiss alleging that the plaintiffs complaint failed to state a claim, relying upon statutes limiting liability of owners of premises used for sporting or recreational purposes (see Ala.Code 1975, §§ 35-15-22 and 35-15-23); however, that motion was denied. The City then answered the complaint, asserting those statutes as affirmative defenses. The City thereafter moved for a summary judgment, again relying upon the recreational-use statutes; that motion was also denied.

The trial court then held an ore tenus proceeding on the merits of the plaintiffs claim. After the plaintiff had testified and her counsel had rested, the City, citing Ala.Code 1975, § 11-47-190, as well as the recreational-use statutes, orally sought a “directed verdict” (actually, orally requested the entry of a judgment on partial findings; see Rule 52(c), Ala. R. Civ. P., and Ragsdale v. Ragsdale, 991 So.2d 770, 772 & n. 1 (Ala.Civ.App.2008)) in its favor, asserting that the plaintiff had failed to show that any agent, officer, or employee in the line and scope of work for the City had acted in a negligent manner. The trial court denied the City’s request, and the City then presented its case. At the close of the trial, the City again raised the statutes it had cited in its request for a “directed verdict” as a basis for a judgment in its favor. The trial court thereafter rendered a judgment in favor of the plaintiff, awarding her $35,500 in damages.

Because the application of Ala.Code 1975, § 11-47-190, is placed squarely in issue by the parties, we quote from its pertinent portions at length:

“No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless such injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employee of the municipality engaged in work therefor and while acting in the line of his or her duty, or unless the said injury or wrong was done or suffered through the neglect or carelessness or failure to remedy some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such an unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body....”

Speaking eight years after the incorporation of the predecessor of § 11-47-190 into the 1907 Alabama Code, Justice Thomas C. McClellan summarized the effect of the statute:

“By Code 1907, § 1273 [now codified at Ala.Code 1975, § 11-47-190], the liability of municipalities for damages for injuries done or suffered is limited to two distinct classes of negligent misconduct or omission, viz.: (a) Where the wrong done or suffered was the proximate result of culpable act or omission of some agent, officer, or employee engaged, within the line of his duty, in the municipality’s service; (b) where the wrong done or suffered was the proximate result of culpable municipal omission ‘to remedy some defect in the streets, alleys, public ways, or buildings, after the same (i.e., defect as defined) has been called to the attention of the council, or after the same (i.e., defect as defined) had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council.’ ... In the first class (a) are wrongs or injuries resulting from negligence of agents, etc., of the municipality, consistent with the doctrine of [respondeat] superior; and in the second class (b) are wrong[s] or injuries for which the municipalities are only liable for culpable neglect to remedy a condition negligently created or made or allowed to exist by a person or corporation not related in service to the municipality — a stranger to the municipal service or function.”

City of Birmingham v. Carle, 191 Ala. 539, 541-42, 68 So. 22, 23 (1915); accord Ellison v. Town of Brookside, 481 So.2d 890, 891-92 (Ala.1985).

In attacking the correctness of the trial court’s judgment, the City asserts that liability could not properly attach under the first of the two statutory classes of liability because, the City says, the plaintiff failed to present evidence demonstrating that an agent, officer, or employee of the City, through negligence, carelessness, or unskillfulness, caused her injury so as to warrant application of the doctrine of re-spondeat superior. The City further asserts that liability could not properly attach under the second of the two statutory classes of liability because, the City says, the plaintiff failed to present evidence demonstrating that the City’s governing body had actual or constructive notice of the existence of a defective condition at Cramton Bowl. In response, the plaintiff contends that she adduced substantial evidence of the “negligence of [municipal] employees arising within the line and scope of their employment” (ie., conduct falling within the first statutory class of municipal liability); she then posits that because, in her view, the City or its employees “affirmatively created the dangerous condition” so as to obviate the need for notice, the plaintiff was not required to demonstrate that the City had actual or constructive knowledge of a defect under the second prong. In other words, we do not perceive the plaintiff to contend that the City is liable under the second prong because of a failure to remedy a dangerous condition after having notice thereof; rather, we view the plaintiff as contending solely that the City is liable under principles of respondeat superior under the first prong.

“The four well-known elements necessary for recovery in any negligence action are: (1) existence of a duty on the part of the defendant; (2) a breach of that duty; (3) existence of a causal relationship between the defendant’s conduct and the plaintiffs injury; and (4) a resulting injury to the plaintiff.” Chatman v. City of Prichard, 431 So.2d 532, 533 (Ala.1983). Because the plaintiff in this case sought to affix liability upon the City for the alleged conduct of one or more of the City’s alleged agents or employees, she bore not only the common-law burden of demonstrating that that alleged agent or employee would be liable to her in a negligence action, see Stephens v. City of Butler, 509 F.Supp.2d 1098, 1116 (S.D.Ala.2007), aff'd, 261 Fed.Appx. 240 (11th Cir.2008) (not selected for publication in the Federal Reporter), but also the burden of demonstrating (a) that the alleged agent or employee was, in fact, an agent or an employee of the City; and (b) that the actor’s conduct amounted to, in the words of § 11-47-190, “neglect, carelessness, or unskillfulness ... [while] engaged in work” for the City (a requirement that negates the potential for vicarious municipal liability as to intentional tort claims as well as to claims based upon conduct committed by a city’s agents or employees amounting to wantonness). See Stephens, 509 F.Supp.2d at 1116. Of course, the fact that the trial court entered a judgment in favor of the plaintiff, by implication, indicates that that court deemed each of those elements to have been met. See Franklin v. City of Athens, 938 So.2d 950, 953 (Ala.Civ.App.2005) (plurality opinion quoting Calvert Fire Ins. Co. v. Green, 278 Ala. 673, 677, 180 So.2d 269, 273 (1965), for the proposition that, in an action involving a negligence claim, “ ‘[t]he absence of any one ... [element] renders a complaint bad or the evidence insufficient’”), aff'd, 938 So.2d 959 (Ala.2006).

Viewing the record in a light most favorable to the plaintiff, as we must (see Driver v. Hice, 618 So.2d 129, 131 (Ala.Civ.App.1993)), we note the following pertinent facts. The plaintiff, who held season tickets to Alabama State University home football games, arrived via automobile at a football game in November 2006 with a neighbor; she paid to park in the municipal parking lot adjacent to Cramton Bowl and entered the stadium. Once inside the stadium gates, the plaintiff decided to purchase some tortilla chips, cheese, and a soft drink, and she placed an order for those items at a stadium concession-stand window. As the plaintiff handed currency through the window to the concession attendant to pay for that order, the plaintiffs head was struck by a “real thick board” that had been located over the plaintiffs head, approximately 10 feet above the stadium floor at that location; the plaintiff was stunned for a few minutes by the impact of the blow.

The sole evidence adduced by the plaintiff concerning any potential involvement by a City employee in connection with the incident was her testimony that, before she had left the concession stand, “a young man,” who “evidently was working with the concession stand,” approached her and told her to “stand right [t]here” because he was “going to get [his] supervisor.” The plaintiff also testified that the man had identified himself as a worker for the City named “Mr. Hooks.” The plaintiff stated that she could not remember the name of the supervisor, whom she described as being a “white male,” but she did state that she had attempted to remain at the game following the injury until the pain in her head became unbearable, after which she sought medical attention at local hospitals.

In denying the City’s oral request for a judgment on partial findings, the trial court relied upon the plaintiffs testimony that “Mr. Hooks” had said that he was a municipal employee and that “[h]e was going to get a supervisor,” and that court suggested that “[sjomebody caused” the board over the concession-stand window to fall. The trial court further invoked, sua sponte, the doctrine of res ipsa loquitur in opining that “whoever was in charge of ... operation of the stand and the [board] fell, it was negligence on somebody’s part,” and the court ruled that “if Hooks works for the City and goes and gets his supervisor who works for the City, that gets [the plaintiff] past [the City’s] motion.”

In Carrio v. Denson, 689 So.2d 121, 123 (Ala.Civ.App.1996), we noted that res ipsa loquitur, a doctrine whose name means “ ‘the thing speaks for itself,’ ” “essentially allows a party to prove negligence by using circumstantial evidence” and that, “[u]nder certain circumstances, the fact-finder can infer negligence from surrounding facts if the exact cause of an injury is unknown or unknowable” because of the operation of the doctrine. In this case, because the instrumentality that caused the plaintiffs injury is undisputedly known — a board that fell from above a concession-stand window — the application of the doctrine depends upon proof of the following three elements:

“ ‘(1) [T]he defendant must have had full management and control of the instrumentality which caused the injury; (2) the circumstances must be such that according to common knowledge and experience of mankind the accident could not have happened if those having control of the management had not been negligent; (3) the plaintiffs injury must have resulted from the accident.’ ”

Id. (quoting Khirieh v. State Farm Mut. Auto. Ins. Co., 594 So.2d 1220, 1223 (Ala.1992)).

The only person actually identified by the plaintiff as an agent of the City in this case, “Mr. Hooks,” is described by her as being a concession-stand worker who entered her presence and then left her presence in order to notify a superior. According to testimony adduced during the City’s presentation of evidence, however, the concession stand is operated by employees of the City’s food-services department, a department that was identified as being separate from the City’s parks-and-recreation department (which provides the Cramton Bowl facility to local educational institutions to use). Notably, nothing in the record in this case indicates the precise job responsibilities of “Mr. Hooks,” much less that he was employed by the City to be responsible for inspecting or securing boards located above concession stands in Cramton Bowl. Indeed, as the City notes in its opening brief, the record also lacks any evidence showing precisely how the board had been secured when it had been placed in its initial position above the plaintiff (whether by a chain, a rope, a latch, or other means), and there is likewise no evidence revealing that “Mr. Hooks” or some other employee or agent of the City pulled down the board onto the plaintiffs head or improperly secured the board above her head on the day of her injury.

The trial court did not believe those evidentiary omissions were fatal to the plaintiffs case, stating that “[i]f the City was managing the concession stand ... [and] if the [board] fell as a result of not meeting a reasonable standard of securing the [board],” the plaintiff was entitled to recover. In making that statement, however, the trial court assumed a fact not in evidence: that the board actually fell because some employee or agent of the City acted in a manner to breach a standard of care owed to the plaintiff by failing to properly secure the board so that it would not fall and hit concession-stand customers. Although the doctrine of res ipsa loquitur can, in appropriate cases, permit an inference that a negligent act must have occurred and that only the defendant could have committed it, the doctrine requires that the incident could not have happened if those having control of the management had not been negligent: “ ‘[i]f one can reasonably conclude that the accident could have happened without any negligence on the part of the defendant ], then the res ipsa loquitur [doctrine] does not apply.’ ” Edosomwan v. A.B.C. Daycare & Kindergarten, Inc., 32 So.3d 591, 594 (Ala.Civ.App.2009) (quoting Ex parte Crabtree Indus. Waste, Inc., 728 So.2d 155, 158 (Ala.1998)).

Here, because of the paucity of evidence adduced by the plaintiff, it is not proper to conclude that the board that struck the plaintiff could have fallen only because of the negligence of “Mr. Hooks” or some other employee or agent of the City. For example, the board could had been held in place by a rope that gave way because of a manufacturing defect, by a chain that pulled away from a hook because of a sudden and unpredictable gust of wind, or by a metal latch that lost internal structural integrity in a manner that was invisible to an observer. Because it was not shown in this case that the incident in which the plaintiff was injured could have occurred only because of negligence on the part of an agent or employee of the City, we cannot agree with the trial court’s invocation of the doctrine of res ipsa loquitur to supply the necessary element of “neglect, carelessness, or unskillfulness” on the part of such an employee or agent committed in the line and scope of his or her employment in order to affix liability upon the City. In the absence of proof of a negligent act committed by a person as to whom the City may properly be held vicariously liable or proof from which such an inference could properly have been drawn, the plaintiff was not entitled to recover under § 11-47-190.

Based upon the foregoing facts and authorities, we conclude that the trial court erred in entering its judgment in favor of the plaintiff. That judgment is reversed, and the cause is remanded for the trial court to enter a judgment in favor of the City.

REVERSED AND REMANDED.

THOMAS, J., concurs.

THOMPSON, P.J., and BRYAN and MOORE, JJ., concur in the result, without writings.

      . Two sections of the Alabama Code, taken together, require the presentment of such a claim within six months of the accrual of a tort cause of action against a municipal body as a prerequisite to the filing of a civil action asserting that claim. See Ala.Code 1975, §§ 11-47-23 and 11-47-192.

      . Our conclusion that the plaintiff's claim is based upon respondeat superior rather than a failure to remedy a dangerous condition thus renders moot the question whether, as the plaintiff contends, the City has improperly raised for the first time on appeal the issue whether the City’s governing body was placed on sufficient notice to warrant liability under the second prong of § 11-47-190.

      . A party, such as the plaintiff in this case, is permitted by statute to allege in any pleading that another party, such as the City, committed an act and to prove that that party’s employee or agent actually committed the act at issue. See Ala.Code 1975, § 6-5-300.


author: BRYAN, Judge.

text:
    SUSTAINABLE FORESTS, LLC v. ALABAMA DEPARTMENT OF REVENUE.
    2091149.
    Court of Civil Appeals of Alabama.
    June 10, 2011.
    Certiorari Denied Sept. 30, 2011 Alabama Supreme Court 1101088.
    Roy J. Crawford and Brian G. Wilson of Cabaniss, Johnston, Gardner, Dumas & O’Neal LLP, Birmingham, for appellant.
    Ron Bowden, chief counsel, and Warren W. Young, asst, counsel, Alabama Department of Revenue, for appellee.
   BRYAN, Judge.

Sustainable Forests, LLC (“the taxpayer”), appeals from a summary judgment entered in favor of the Alabama Department of Revenue (“the Department”). We affirm.

The taxpayer solely owns three single-member limited-liability companies, Red Mountain TimberCo I LLC, Red Mountain TimberCo IV LLC, and GMO Threshold Timber Courtland LLC (collectively, “the LLCs”). In October 2006, the taxpayer executed statutory warranty deeds conveying various tracts of real property to each of the LLCs. That same month, the taxpayer executed assignments of its interests in timberland leases to each of the LLCs. The taxpayer recorded the deeds and assignments in the probate offices of the counties where the properties are located. Pursuant to § 40-22-1, Ala.Code 1975, the taxpayer paid a recording tax upon filing each of the deeds and assignments.

The taxpayer subsequently petitioned the Department for a refund of the recording taxes. Because the Department did not respond to the taxpayer’s petitions within six months, the petitions were deemed to be denied. § 40-2A-7(c)(8), Ala.Code 1975. The taxpayer appealed from the denials to the Montgomery Circuit Court, pursuant to § 40-2A-7(c)(5)b., Ala.Code 1975. The parties filed a joint stipulation of facts, and both parties filed a motion for a summary judgment. The trial court entered a summary judgment in favor of the Department, and the taxpayer appealed to this court.

“Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425 (Ala.1999).... In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court. Dobbs, supra.

Bruce v. Cole, 854 So.2d 47, 54 (Ala.2003). “[W]e must give the words in a statute their plain, ordinary, and commonly understood meaning, and where plain language is used we must interpret it to mean exactly what it says.” Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003).

“ ‘[T]he right of taxation is essential to the existence of all governments, ... and it is never to be presumed that this right is abandoned or surrendered unless it clearly appears that such was the intention.... ’ Stein v. Mayor, Aldermen and Common Council of Mobile, 17 Ala. 234, 239 [ (1850) ]. ‘... ‘‘... ‘Taxation is the rule; exemption the exception.’ ... ” ’ Brown v. Protective Life Insurance Co., 188 Ala. 166, 168, 169, 66 So. 47 [ (1914) ].”

State v. Lamson & Sessions Co., 269 Ala. 610, 614, 114 So.2d 893, 896 (1959).

The issue in this case is whether § 40-22-1, Ala.Code 1975, requires the taxpayer to pay recording taxes on the recorded deeds and assignments executed in favor of the LLCs. Section 40-22-1 provides, in pertinent part:

“No deed, bill of sale, or other instrument of like character which conveys any real or personal property within this state or which conveys any interest in any such property, except the transfer of mortgages on real or personal property within this state upon which the mortgage tax has been paid, deeds or instruments executed for a nominal consideration for the purpose of perfecting the title to real estate, the re-recordation of corrected mortgages, deeds, or instruments executed for the purpose of perfecting the title to real or personal property, specifically, but not limited to, corrections of maturity dates thereof, and deeds and other instruments or conveyances, executed prior to October 1, 1923, shall be received for record unless the following privilege or license tax shall have been paid upon such instrument before the same is offered for record: ... [U]pon all such instruments executed to convey real or personal property situated in this state of more than $500 in value there shall be paid the sum of $.50 for each $500 or fraction thereof in value of property conveyed by such instrument....”

Thus, the recording tax is triggered by the recording of an instrument that conveys real or personal property or an interest in such property. The taxpayer does not argue that any of the four exceptions listed in § 40-22-1 apply in this case. Instead, the taxpayer argues that, for taxation purposes, the deeds and assignments recorded in this case did not actually “convey” property to the LLCs. In making that argument, the taxpayer relies on § 10-12-8(b), Ala.Code 1975, which provides, in pertinent part:

“... [F]or purposes of taxation, other than Chapter 14A of Title 40, [ie., the Alabama Business Privilege and Corporation Shares Tax Act of 1999,] a domestic or foreign limited liability company shall be treated as a partnership unless it is classified otherwise for federal income tax purposes, in which case it shall be classified in the same manner as it is for federal income tax purposes.”

For federal income-tax purposes, the LLCs are disregarded as entities separate from their sole owner, the taxpayer. That is, the LLCs, as “disregarded entities,” are treated in the same manner as a branch or division of the taxpayer for federal income-tax purposes. See 26 C.F.R. § 301.7701-2(a). Thus, pursuant to § 10 — 12—8(b), the LLCs are disregarded entities for purposes of taxation, other than pursuant to § 40-14A-1 et seq., an act inapplicable to this case. The taxpayer argues that, for there to be a conveyance within the meaning of § 40-22-1, there must be a transfer of property or an interest therein from one entity to another. See, e.g., Crowley v. Bass, 445 So.2d 902, 904 (Ala.1984) (“ ‘Deed’ and ‘conveyance’ in their most common legal usage refer to a transfer of title to land from one person to another.”). The taxpayer contends that, because the LLCs are disregarded entities for tax purposes, the deeds and assignments did not actually convey property or an interest therein and, consequently, the recording tax does not apply.

Although the taxpayer makes a strong argument, we conclude that the recording of the deeds and assignments is subject to the recording tax established by § 40-22-1. In Hawkins v. Pure Oil Co., 232 Ala. 660, 169 So. 307 (1936), our supreme court addressed the predecessor statute to § 40-22-1. In Hawkins, Pure Oil Company acquired all the stock of Wofford Oil Company. 232 Ala. at 660, 169 So. at 308. Wofford Oil Company was then dissolved, leaving Pure Oil Company in control of the dissolved company’s assets. Pure Oil Company then attempted to record a deed reflecting the transfer of the assets. Id. Like the deeds and assignments in this case, the recorded deed in Hawkins did not fit into any of the specific exceptions to levying the recording tax. In concluding that the recording tax should be levied, our supreme court observed:

“The plain purpose of [the] recordation [of the deed] ... is not for perfection of the title to real estate, as the exception reads, but the perfection of the record of the transaction. But for that privilege the statute exacts a tax, and the exception was not incorporated in the statute for the purpose of enabling one who has the legal title to thus gain the advantage of its recordation without its payment.”

232 Ala. at 661, 169 So. at 308.

Thus, the recording tax is a tax on the recording of the document itself, not a tax on the underlying transaction. Accord Dean v. Pinder, 312 Md. 154, 159, 538 A.2d 1184, 1187 (1988) (stating that the tax levied on the recording of deeds transferring property, although “computable on the amount of consideration transferred, ... is not considered a tax on property but rather an excise tax imposed upon the privilege of recording the deed”). In this case, the recording of the deeds and assignments subjected the taxpayer to the recording tax.

Under § 40-22-1, the recording of deeds and assignments such as the ones in this case triggers the recording tax unless a specific exception applies. Hawkins. It is undisputed that the taxpayer is not exempt from the recording tax under any of the four specific exceptions listed in § 40-22-1. Under the principle expressio unius est exclusio alterius, the express inclusion of one exception implies the exclusion of others. See generally Ex parte Haponski, 395 So.2d 971, 972 (Ala.1981). Thus, because § 40-22-1 does not specifically exclude from taxation the recording of deeds and assignments executed between a single-member LLC and its sole owner, an inference may be drawn that the recording of those documents is subject to the recording tax. It would be the province of the legislature, not this court, to create such an exception from the broad coverage of the statute. See Honeycutt v. Employees’ Ret. Sys. of Alabama, 431 So.2d 961, 964 (Ala.1983) (stating that a court’s role is not to usurp the legislature by amending statutes); and Art. Ill, § 43, Ala. Const. 1901 (“In the government of this state, ... the judicial [department] shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”). We cannot create a judicial exception to the recording tax found in § 40-22-1.

We note that both parties have cited various nonbinding authorities, such as revenue rulings of the Department and opinions of the attorney general, that are not precisely on point concerning the dis-positive issue. Although both parties have made commendable arguments regarding those nonbinding authorities, a discussion of those arguments is unnecessary in light of the above analysis.

The deeds and assignments recorded by the taxpayer are subject to the recording tax established by § 40-22-1. Therefore, the trial court correctly determined that the taxpayer is not due a refund of the recording taxes. Accordingly, we affirm the summary judgment entered in favor of the Department.

AFFIRMED.

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

      . Section 40-2A-7(c)(3), Ala.Code 1975, provides, in pertinent part: "The [Department shall either grant or deny a petition for refund within six months from the date the petition is filed.... If the [D]epartment fails to grant a refund within the time provided herein, the petition for refund shall be deemed to be denied.”

        . See Alabama Dep't of Revenue v. National Peanut Festival Ass’n, Inc., 11 So.3d 821, 833 (Ala.Civ.App.2008) (stating that opinions of the attorney general are not controlling and are merely advisory); and § 40-2A-5(a), Ala. Code 1975 (stating that a revenue ruling issued by the Department is binding "only with respect to the taxpayer making the request and only with respect to the facts contained in the request”).


author: THOMAS, Judge.

text:
    Tony C. WILLIAMS v. Dorothy O. HARRIS.
    2100283.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2011.

      Fulton S. Hamilton, Huntsville, for appellant.
    Tonya N. Woods and Michael L. Forton, Legal Services Alabama, Inc., Huntsville, for appellee.
   On Application for Rehearing

THOMAS, Judge.

The opinion of June 17, 2011, is withdrawn, and the following is substituted therefor.

Tony C. Williams appeals from a protection-from-abuse order entered by the Madison Circuit Court, which resulted from a petition filed by Dorothy O. Harris pursuant to the Protection from Abuse Act, Ala. Code 1975, § 30-5-1 et seq. We affirm.

Facts and Procedural History

Williams and Harris are married. On November 9, 2010, Harris filed a petition for protection from abuse in the trial court. In her petition, Harris stated that on November 8, 2010, Williams had pushed her down on concrete, causing her to sustain bruising and scratches on her arms, legs, and buttock. Further, Harris stated in her petition that Williams had yelled at her, had called her crazy, and had pushed her. On the same day that Harris filed her petition, November 9, 2010, the trial court entered an ex parte order enjoining Williams from threatening to commit, or committing, acts of abuse against Harris, R.L., or T.W. (R.L. and T.W. are hereinafter referred to collectively as “the minor children”); ordering Williams to stay away from the marital residence and the minor children’s school; prohibiting Williams from transferring, concealing, encumbering, or otherwise disposing of the parties’ property; directing Williams to be removed from the marital residence; awarding temporary custody of the minor children to Harris; and setting a hearing on the petition for November 15, 2010.

The parties had been married for years, but during late 2010 the relationship had begun to deteriorate. Harris has lupus and has suffered from serious health issues. Moreover, Williams and Harris had recently had constant arguments, resulting in the police having been called to the marital residence on numerous occasions. Harris had changed the locks on the marital residence twice in order to keep Williams out of the home. Due to the fact that the police had been called regarding Harris’s changing of the locks, Williams and Harris had agreed to a special arrangement to share the marital residence. The arrangement allowed Williams use of the downstairs portion of the marital residence, while reserving the upstairs portion for Harris’s use. However, the kitchen and laundry area were located downstairs, which required Harris to enter the downstairs level from time to time. On November 8, 2010, the parties had an altercation, which led to the November 9, 2010, petition for protection from abuse.

The trial court held a hearing on the petition on November 15, 2010. Williams and Harris were the only witnesses to testify at the hearing. They both appeared pro se. Harris testified that, immediately preceding the altercation, Williams was downstairs and was about to take the television, belonging to the parties’ son, and the DirectTV brand satellite-television box, which was registered in Harris’s name. Harris testified that she told Williams that he could not leave the marital residence with the television and DirectTV box, which, she said, caused Williams to begin yelling, screaming, and cursing. According to Harris, during the verbal outburst, Williams grabbed the television and Harris caught its cord. Hams testified that Williams then pulled the television and pushed Harris onto the concrete floor. During the fall, Hands said, she hit her leg on a table and received scratches and bruises from the table and the concrete floor. According to Harris, she had kept hold of the television cord throughout the fall, and she continued to hold it for the next 45 to 50 minutes before returning upstairs.

Williams gave a different account of the November 8, 2010, altercation. Williams testified that he had been sitting on the couch with Harris’s brother watching a football game on television when Harris had sent their son downstairs to remove the DirectTV box, which was connected to the television. Williams stated that he sent the son back upstairs without the DirectTV box and that, about 15 minutes later, Harris came downstairs to take the television and DirectTV box. According to Williams, Harris pulled the television off the shelf and Williams grabbed the television in order to keep it from crashing to the floor. Williams testified that Harris then grabbed the television cord and refused to let go of it. According to Williams, Harris held onto the cord, sitting on the floor at Williams’s feet for about two hours. According to Williams, Harris finally released the cord after her hand had started to swell from holding onto it so tightly for so long. Williams testified that after Harris released the cord, Williams set up the television with an antenna. For the remainder of the night, Williams testified, Harris continued to visit the downstairs area, flicking the lights on and off, yelling that Williams was trying to steal her stuff, turning on and off the washing machine and dryer, and moving her quilts and possessions into her bedroom. The next day the police removed Williams from the residence based upon the ex parte protection-from-abuse order. Williams has not entered or visited the marital residence since being removed.

The trial court recognized that there were some discrepancies between Harris’s original account of the incident during the ex parte hearing on November 9 and the account she gave at the final hearing on November 15. However, upon questioning by the trial court, Harris testified that Williams had pushed her down onto the concrete floor and then pulled her when he grabbed hold of the television cord, which, she said, she was already holding.

After hearing ore tenus evidence, the trial court entered a final protection-from-abuse order, finding that domestic violence had occurred and enjoining Williams from living at or visiting the marital residence.

Issues

Williams raises two issues in his appeal: (1) whether failing to give an oath to the witnesses deemed their testimony inad-missable and (2) whether the trial court had before it sufficient evidence to support its final order.

Standard of Review

“1 “ ‘[W]hen 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 Philpot 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.” ’ Waltman 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 incorrect application of law to the facts.’ Waltman 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).

Analysis

First, Williams argues that the testimony from the final hearing is inadmissable because the trial court failed to give an oath to either Williams or Harris. Accordingly, because the testimony is inadmissa-ble, Williams contends, there is no admissible evidence to support the trial court’s protection-from-abuse order. Williams rests his entire argument regarding the inadmissability of the testimony on Rule 603, Ala. R. Evid., and this court’s recent decision in Alabama Department of Industrial Relations v. Smith, 62 So.3d 1046, 1049 (Ala.Civ.App.2010). However, this argument is misguided and without merit.

Rule 603 provides:

“Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so.”

Rule 603 of the Alabama Rules of Evidence is modeled after the same rule of the Federal Rules of Evidence, and it is well established that “cases construing the federal rules are to be considered authority for this state’s courts when construing the Alabama rules.” Shoney’s, Inc. v. Barnett, 773 So.2d 1015, 1029 (Ala.Civ.App.1999); see Rule 102, Ala. R. Evid., Advisory Committee’s Notes (stating that “cases interpreting the Federal Rules of Evidence will constitute authority for construction of the Alabama Rules of Evidence”). However, cases interpreting the federal rules are persuasive rather than mandatory authority. Rule 102, Ala. R. Evid., Advisory Committee’s Notes.

The plain language of Rule 603 mandates that an oath be administered before a witness is allowed to testify. However, both federal courts and Alabama courts have held that the failure to give such an oath or affirmation is deemed waived if not objected to in the trial court. Merton v. State, 500 So.2d 1301 (Ala.Crim.App.1986); Saxton v. State, 389 So.2d 541, 543 (Ala.Crim.App.1980) (“If a witness is allowed to give evidence before the jury without first being lawfully sworn, it is the duty of the judge, as soon as it is called to his attention, to immediately administer a proper oath to the witness.”); and United States v. Odom, 736 F.2d 104, 115 (4th Cir.1984). More specifically, the Court of Criminal Appeals has held that, “just as a defendant may waive any impediment to a witness’s capacity to testify by failing to object, Conner v. State, 52 Ala.App. 82, 87, 289 So.2d 650 (1973), cert. denied, 292 Ala. 716, 289 So.2d 656 (1974), so may he waive the failure to place a witness under oath by the failure to object.” Merton, 500 So.2d at 1306; Green v. State, 586 So.2d 54, 55 (Ala.Crim.App.1991) (“By failing to object, the appellant waived the issue of any alleged failure to place the witnesses under oath. Merton v. State, 500 So.2d at 1306.”). The requirement that a party must object to any unsworn testimony at trial is not a novel concept. See Murphy v. State, 25 Ala.App. 237, 239-40, 144 So. 114, 116-17 (1932) (“wherever it appears that a witness is not so sworn (or affirmed), and the party against whom the witness is offered makes timely objections, such testimony must be excluded”).

Moreover, the federal courts also follow the line of reasoning that failure to object waives any issue regarding the admissibility of unsworn testimony. See United States v. Perez, 651 F.2d 268, 273 (5th Cir.1981) (“It has long been the general rule that even a failure to swear a witness may be waived. This may occur either by knowing silence and an attempt to raise objection after verdict or by the mere failure of counsel to notice the omission before completion of the trial.” (footnotes omitted)). Therefore, established Alabama caselaw and federal caselaw interpreting Rule 603 do not support Williams’s contention that the failure to administer an oath to a witness renders such witness’s testimony inadmissable, absent an objection in the trial court.

Furthermore, this court’s decision in Smith, supra, which Williams relies upon on appeal, is distinguishable from the present case in several significant ways. In Smith, the issue on appeal regarded unsworn testimony given during a summary-judgment hearing. Smith, the plaintiff in that case, did not file a response to the summary-judgment motion but appeared pro se at the hearing and offered oral legal arguments against the entry of a summary judgment in favor of the defendant. At the hearing, each side argued their position, and, in addition, Smith made numerous representations before the court that amounted to unsworn “ ‘mere allegations or denials]’ of the [defendant’s] allegations and evidence.” 62 So.3d at 1049. As our supreme court noted in Fountain Finance, Inc. v. Hines, “ ‘[m]otions and arguments of counsel are not evidence.’ ” 788 So.2d 155, 159 (Ala.2000) (quoting Williams v. Akzo Nobel Chems., Inc., 999 S.W.2d 836, 845 (Tex.App.1999)). Thus, in Smith, Smith was making legal arguments and did not take the witness stand to offer factual testimony, as did the witnesses in the instant case. Further, in Smith, there is no mention of whether a party objected to the use of unsworn testimony at the trial court level. Therefore, the procedural posture and circumstances in this case are unlike Smith.

In this case, the record does not show that Williams or Harris were sworn as witnesses. Further, the record shows that there was no objection to the failure to swear the witnesses by either party. Therefore, the issue that neither party was sworn is being raised for the first time on appeal.

This court adopts the rationale of the Court of Criminal Appeals and the federal courts that any objection that the trial court failed to administer an oath to a witness must be raised in the trial court before the entry of judgment, and, absent objection at that time, any claim of inad-missability of unsworn testimony of the ■witness is waived. As noted, the record is clear that, in this case, there was no objection in the trial court regarding the failure of the witnesses to be placed under oath. Accordingly, the failure of the trial court to administer an oath was waived.

Williams also argues on appeal that, even considering the unsworn testimony, the trial court did not have sufficient evidence before it to enter the protection-from-abuse order. Pursuant to § 30-5-6(a), Ala.Code 1975, Harris was required to “prove the allegation of abuse by a preponderance of the evidence.” The trial court heard ore tenus evidence before entering its final protection-from-abuse order. It is undisputed that during an altercation involving the television, Harris fell on the concrete floor on November 8, 2010. However, the parties dispute whether Harris fell to the floor on her own or whether Williams pushed her. The parties testified to two completely different accounts of the events.

“In an ore tenus proceeding before the trial court, ‘[t]he trial court is in the best position to observe the demeanor of witnesses and to assess their credibility.’ Yellow Freight Sys., Inc. v. Green, 612 So.2d 1209, 1211 (Ala.Civ.App.1992). It was the duty of the trial court, as the trier of fact, to resolve any conflicts in the evidence. Harden v. Harden, 418 So.2d 159, 161 (Ala.Civ.App.1982).”

Petrey v. Petrey, 989 So.2d 1128, 1134 (Ala.Civ.App.2008). Therefore, the trial court could have reasonably concluded from the demeanor of the parties that Harris’s testimony was more credible than Williams’s testimony. “ ‘[T]his court is not permitted to reweigh the evidence on appeal or to substitute its judgment for that of the trial court.’ ” Schiesz v. Schiesz, 941 So.2d 279, 289 (Ala.Civ.App.2006) (quoting Sellers v. Sellers, 893 So.2d 456, 461 (Ala.Civ.App.2004)). Thus, we conclude that the trial court’s judgment insofar as it included a finding that Williams had committed an act of domestic violence against Harris was supported by sufficient evidence and is due to be affirmed on appeal.

Finally, Williams argues that the trial court’s judgment is due to be reversed because, he says, it prohibits him from communicating and contacting the minor children, although there was no testimony presented at the hearing regarding any acts of abuse against the minor children. In essence, he argues that the evidence does not support the judgment. We disagree.

Initially, we note that Williams is correct in stating that the record is devoid of any testimony or allegations that Williams perpetrated any acts of abuse against the minor children. However, Williams’s contention is without merit because neither the final judgment nor the ex parte order contain a finding that Williams committed any acts of abuse against the minor children, nor does either prohibit him from communicating with or contacting the minor children.

The final judgment states: “THERE HAS BEEN A FINDING BY THE COURT OF DOMESTIC VIOLENCE COMMITTED BY [Williams,] THE DEFENDANT[,] AGAINST [Harris,] THE PLAINTIFF.” (Capitalization in the original.) There is no finding regarding any acts of abuse against the minor children. Additionally, the judgment states that “[a]ll provisions of the Ex Parte Protection Order remain in full force” and that “[t]he Defendant, Tony Williams, is restrained, prohibited and enforced from threatening, committing or attempting to commit any act of abuse against Dorothy Harris [or the minor children].”

The ex parte order, which was incorporated into the final judgment, states that “[t]he Defendant is enjoined from threatening to commit or committing, acts of abuse, as defined in the Protection for Abuse Act, against the: Plaintiff and children.” Further, the ex parte order states that “[t]he Defendant is ordered to stay away from the Plaintiffs residence and the children’s school.” It does not prohibit contact or communication between Williams and the minor children; the ex parte order, which is on a preprinted form, does not contain a single marking in the section of the preprinted form that would encompass a restriction as to communication or contact between Williams and the minor children. Therefore, neither the ex parte order nor the final judgment prohibits Williams from communicating with or contacting the minor children.

On appeal, Williams focuses on the section of the final judgment that states: “Tony Williams, is restrained, prohibited and enforced from threatening, committing or attempting to commit any act of abuse against Dorothy Harris, [or the minor children].” Pursuant to Ala. Code 1975, § 30 — 5—7(b)(1), a trial court, in an ex parte or modification hearing in a protection-from-abuse proceeding, may “[e]njoin the defendant from threatening to commit or committing acts of abuse, as defined in this chapter, against the plaintiff or children of the plaintiff, and any other person designated by the court.” Accordingly, the portion of the ex parte order enjoining Williams from threatening to commit or committing acts of abuse against the minor children, which was incorporated into the final judgment, is due to be affirmed. Additionally, the portion of the final judgment enjoining Williams from threatening to commit or committing acts of abuse against the minor children is also due to be affirmed, because the statement merely restricts Williams from violating criminal statutes of the state of Alabama.

Accordingly, because the final judgment neither prohibits Williams’s right to communicate with and to contact the minor children nor contains a finding that Williams committed acts of abuse against the minor children, we conclude that the final judgment is due to be affirmed.

Conclusion

Although the trial court did not require the witnesses to take an oath, the admissibility-of-testimony issue was waived because there was no objection in the trial court. Further, the trial court’s judgment was supported by sufficient evidence. We, therefore, affirm the trial court’s judgment.

APPLICATION GRANTED; OPINION OF JUNE 17, 2011, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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