author: BRYAN, Judge.

text:
    SUPERIOR WALL AND PAVER, LLC v. Pamela E. GACEK and Mark R. Gacek.
    2090967.
    Court of Civil Appeals of Alabama.
    June 10, 2011.

      David G. Kennedy of Wright, Green, P.C., Mobile, for appellant.
    Gary W. Fillingim, Mobile, for appellees.
   BRYAN, Judge.

Superior Wall and Paver, LLC (“Superi- or”), the plaintiff/counterdefendant below, appeals from a judgment in favor of Pamela E. Gacek and Mark R. Gacek, the defendants/counterplaintiffs below. We affirm.

Procedural History

On March 16, 2007, Superior sued the Gaceks. Superior alleged that it and the Gaceks had entered into a contract (“the contract”) for Superior to prepare and install concrete pavers at the Gaceks’ residence, that Superior had performed its obligations under the contract, that the Gaceks had not paid Superior $14,350 of the money it was due under the contract, and that Superior had recorded a verified statement of lien against the Gaceks’ property. Based on those allegations, Superior claimed that the Gaceks had breached the contract by failing to pay Superior $14,350 of the money it was due under the contract, that the Gaceks owed Superior $14,350 for work and labor Superior had performed, and that Superior was entitled to the perfection of its lien against the Gaceks’ property.

Filing an answer and counterclaim, the Gaceks denied that they were liable to Superior and asserted that Superior was liable to them because, the Gaceks said, they had paid Superior more than the contract price, Superior had improperly attempted to increase the price after beginning the job because it had made an error in calculating the amount of material needed to complete the job, Superior had not properly installed the pavers, Superior had not complied with the design agreed upon, Superior had not used the quality of materials agreed upon, Superior had not completed the work agreed upon, and Superior had not performed its work in a good and workmanlike manner. In their counterclaim, the Gaceks stated claims of breach of contract, negligence, wantonness, fraudulent misrepresentation, and slander of title. Answering the Gaceks’ counterclaim, Superior denied that it was liable to the Gaceks. The Gaceks subsequently amended their answer to assert an additional affirmative defense and amended their counterclaim to seek damages for mental anguish allegedly caused by Superior’s breaching the contract and its negligence. Answering the Gaceks’ amended counterclaim, Superior denied that it was liable to the Gaceks.

On February 23, 2010, Superior moved for a partial summary judgment “as to [the Gaceks’] Counterclaims for Wantonness, Fraudulent Misrepresentation, and Slander of Title and [the Gaceks’] claims for emotional and/or mental damages.”

On February 26, 2010, the parties participated in mediation. As a result of the mediation, the parties entered into a written agreement (“the mediation agreement”), which provided, in pertinent part:

“The parties mediated the ... action on February 26, 2010 ... and reached the following settlement agreement:
“1. [Superior] will execute a Release and Indemnity Agreement in favor of the [Gaceks] in exchange for payment of the sum of $20,000 to [Superior] from [the Gaceks]. One-half of this amount ($10,000) will be paid by the [Gaceks] to [Superior] after the scope of work is agreed upon by the parties as described in Paragraph 4 herein. After the work is complete, [Superior] will provide [the Gaceks’] counsel a Certificate of Completion. Upon providing this Certificate of Completion, [the Gaceks] will pay [Superior] the remaining one-half ($10,000) within seven (7) days.
“2. [Superior] agrees to take all necessary action and file all papers necessary to remove all liens that have been filed against the [Gaceks’] home within ten (10) days of the scope of work being agreed upon by the parties as contemplated in Paragraph 4.
“3. In exchange for payment of $6,000 to [the Gaceks] by American Resources Insurance Company, the [Ga-ceks] agree to dismiss with prejudice all counterclaims they have filed against [Superior], including all claims for personal injury, mental anguish and emotional distress. This payment must be made on the same date as the initial $10,000 payment is made by the [Ga-ceks] to [Superior].
“4. [Superior] agrees to repair all sunken or depressed areas in the subject driveway in accordance with the Sims Stone Interlocking Concrete Paver Product Information Typical Installation Standards provided to [the Gaceks] with the 2/8/06 Proposal. All material is guaranteed to be as specified. All work to be completed in a professional manner according to industry standard practices. The square footage of the areas to be repaired must be agreed upon by all parties within 14 days from the date of this Agreement. Otherwise, the Settlement Agreement is void. Any repairs agreed upon herein will be performed by [Superior] within 80 days after the date of the agreed upon areas for repair are determined.
“5. [Superior] agrees to install a French drain from the carport to the street within 30 days after the date that the agreed upon areas for repair of the driveway in Paragraph No. 4 are determined.”

On March 9, 2010, Superior moved to enforce the mediation agreement. Following a hearing, the trial court denied that motion on March 10, 2010.

On March 15, 2010, the trial court held a bench trial at which it received evidence ore tenus. On March 19, 2010, the trial court entered two judgments. One of those judgments granted Superior’s partial-summary-judgment motion “as to the [Gaceks’] claims for Wantonness, Fraud, and Slander of Title” but did not grant it as to the Gaceks’ “claims for emotional and/or mental damages.” The other judgment (“the second March 19, 2010, judgment”) found in favor of the Gaceks with respect to their counterclaims of breach of contract and negligence and awarded the Gaceks damages in the amount of $60,500. Neither of the judgments entered by the trial court expressly adjudicated Superior’s claims against the Gaceks.

On April 16, 2010, Superior filed a post-judgment motion, which the trial court denied on April 20, 2010. Superior then timely appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Because neither of the two written judgments entered by the trial court on March 19, 2010, expressly adjudicated Superior’s claims against the Gaceks, we remanded the action for the trial court to enter a judgment adjudicating those claims, and the trial court entered a judgment amending the second March 19, 2010, judgment to add a provision finding in favor of the Gaceks with respect to Superior’s claims against the Gaceks.

Factual Background

In January 2006, the Gaceks, who then had a driveway (“the existing driveway”) at their residence that was surfaced, in part, with concrete and, in part, with asphalt, wanted to install interlocking concrete pavers (“pavers”) where the existing driveway was located. Ted Buell, who was then a co-owner of Superior along with Michael Darby, testified that he measured the area where the existing driveway was located in order to provide the Gaceks with a proposal for installing pavers where the existing driveway was located. Buell further testified that he measured the area where Mark R. Gacek told him to measure and that Buell’s measurements indicated that Gacek had specified an area of approximately 5,000 square feet where he wanted the pavers installed.

After measuring the area where the pav-ers were to be installed, Buell prepared a written proposal dated February 8, 2006, and submitted it to the Gaceks. That proposal stated:

“We hereby submit specifications and estimates for:
“Interlocking Concrete Pavers
Gassick [sic] Residence — Driveway
“Scope of Work:
“-Level necessary portion of driveway for required base.
“-Install base foundation (89/10 [crushed limestone] leveling pad approx. 3" — 4" on top of existing driveway.
“-Install interlocking concrete pavers. (Paver style and color to be determined by homeowner) in areas determined by owner.
“Approx: 5000 Square Feet
Price per Sq. Ft. = $9.00
Includes concrete pavers, base material, installation.
“We propose hereby to furnish material and labor — complete in accordance with the above specifications, for the sum of: Forty Five Thousand and 00/100 Dollars ($45,000)
“Payment to be made as follows:
“$20,000 Down payment (will reserve materials before price increase). Balance due upon completion.
“All material is guaranteed to be as specified. All work to be completed in a professional manner according to standard practices. Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate. All agreements contingent upon strikes, accidents or delays beyond our control. Owner to carry fire, tornado, and other necessary insurance. Our workers are fully covered by Worker’s Compensation insurance.”

The Gaceks accepted the proposal, and it became the parties’ contract. The Ga-ceks paid Superior a down payment in the amount of $20,000 in March 2006. Superi- or began work on the project in July 2006.

Colin Schmidt, Superior’s foreman on the project, testified as follows. Darby, who was then a co-owner of Superior and is now its sole owner, instructed Schmidt to install the pavers where the Gaceks wanted them installed and told him that the area where the pavers were to be installed amounted to approximately 5,000 square feet. Although Darby did not show Schmidt the contract, Schmidt understood from talking to Darby that he was supposed to install the pavers “pretty much where the old driveway was.” He further understood that he was to put the pavers on top of the concrete where the concrete was still good and to remove the concrete where it would cause the pavers to be too high to tie into the road or the garage. Schmidt testified that, when he prepared the site for the installation of the pavers, he discovered that bushes had grown over the asphalt along the edges of the existing driveway and that the area of the existing driveway covered by the bushes had not been included in Buell’s measurements. He realized that covering that additional area with pavers would result in pavers being installed in an area that exceeded 5,000 square feet. Schmidt testified that he asked Darby if Darby had realized that the edges of the existing driveway had become overgrown with bushes, and Darby answered in the negative.

Schmidt testified that he then asked the Gaceks whether they had noticed that the edges of the driveway had become overgrown with bushes, and they responded in the negative. Schmidt testified that he asked the Gaceks if they wanted him to install pavers where the edges of the existing driveway had become overgrown with bushes for the entire length of the existing driveway, and they answered in the affirmative. Schmidt testified that he did not tell the Gaceks how much additional area this would add to the 5,000 square feet referred to in the contract. Schmidt testified that, because Darby had not shown Schmidt the contract before he began work on the project, Schmidt did not know that the contract required Superior to install a 3" to 4" base of 89/10 crushed limestone before he installed the pavers and that he did not install such a base. Schmidt testified that, except in the areas where he removed portions of the concrete surface of the existing driveway, he merely put down a thin layer of sand on the concrete and asphalt surface of the existing driveway before installing the pavers. He further testified that, in order to make the pavers level with the road and the driveway, he had to remove approximately 1,000 to 1,500 square feet of the concrete surface of the existing driveway and that, in those areas, he put down a 2" to 4" layer of sand before installing the pavers. Schmidt estimated that installing pavers where the edges of the existing driveway had become overgrown with bushes had increased the area covered with pavers from the 5,000 square feet measured by Buell to 6,600 square feet.

Peter Gacek and Mark Gacek, the Ga-ceks’ sons, testified that the edges of the existing driveway were not covered with grass or bushes when Buell measured the existing driveway.

Superior completed its work in August 2006. On September 8, 2006, the Gaceks paid Superior $12,000, bringing the total amount they had paid to Superior to $32,000. During September 2006, a dispute arose between Superior and the Ga-ceks regarding the amount the Gaceks owed Superior. Superior contended that, in addition to the $45,000 specified by the contract, the Gaceks owed Superior $14,400 ($9.00 per square foot multiplied by 1,600 square feet) for its installing pav-ers in the 1,600-square-foot area of the driveway that Superior claimed had been overgrown with bushes when Buell had measured the existing driveway. The Ga-ceks contended that the contract specified a total price of $45,000 for installing pavers in the area covered by the existing driveway.

In October 2006, the Gaceks gave Superior a check in the amount of $14,500, which consisted of the $13,000 difference between the $45,000 price referred to in the contract and the $32,000 the Gaceks had already paid Superior and an extra $1,500 they had agreed to pay Superior for removal of portions of the concrete surface of the existing driveway. The words “paid in full” were written on the check. Superi- or negotiated that check but continued to insist that the Gaceks owed Superior an additional $14,400 for installing pavers on the 1,600 square feet of the existing driveway that Superior claimed it had not included in its original measurement of the existing driveway.

After Superior completed its work, the pavers began to move, creating gaps between the pavers. In addition, water began to flow into the Gaceks’ garage when it rained. The Gaceks complained to Superior about the problems with the pavers; however, Superior did not correct the problems. Dan Pressley, the general manager of Southern Paver Systems, testified that he had inspected the work performed by Superior at the Gaceks’ request. He testified that he had found no 89/10 crushed-limestone base under the pavers; that, in some areas where Superior had removed portions of the existing driveway, he had found sand under the pavers and that, in the other areas where Superior had removed portions of the existing driveway, he had found nothing but topsoil. He testified that the rest of the pavers installed by Superior were installed either on the asphalt surface of the existing driveway or on the concrete surface of the existing driveway. He also testified that he had observed that the pavers in the Gaceks’ driveway had begun to move, which had created gaps between the pavers. He testified that the movement of the pavers was caused by the absence of a proper base under them. He also testified that, as water got into the gaps between the pav-ers and more and more traffic traveled over the driveway, more and more gaps would open up between the pavers. Moreover, he testified that, because soil, asphalt, and concrete all settle differently from one another, in order to correct the defects in the driveway installed by Superior, all the pavers would need to be removed, cleaned, and stored on pallets while the area under the pavers was excavated and replaced with an 89/10 crushed-limestone base and then all the pavers would have to be installed again. Furthermore, he testified that his company would charge $67,436 to perform that work.

In addition, Pressley testified that the work Superior had performed had caused water to flow into the Gaceks’ garage when it rained and that, in order to cure that problem, pipe would have to be installed so that the water would flow from the garage to the street. Pressley testified that the cost of installing such a drain pipe would be approximately $5,000.

Standard, of Review

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

“When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987). When the trial court in a nonjury case enters a judgment without making specific findings of fact, the appellate court ‘will assume that the trial judge made those findings necessary to support the judgment.’ Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala.1992). Moreover, ‘[u]nder the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.’ Transamerica, 608 So.2d at 378. However, when the trial court improperly applies the law to facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). ‘Questions of law are not subject to the ore tenus standard of review.’ Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (‘[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.’).”

City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002).

Analysis

Superior argues that the trial court erred in ruling in favor of the Gaceks with respect to Superior’s breach-of-contract claim because it based that ruling on two erroneous grounds. First, Superior argues that the trial court based its ruling in favor of the Gaceks on the ground that the contract was a fixed-price contract specifying a total fixed price of $45,000 for the installation of pavers regardless of the size of the area where Superior installed pav-ers and that that was an erroneous ground for ruling in favor of the Gaceks because, Superior argues, the contract was a unit-price contract providing for a total price to be determined by multiplying the unit price of $9.00 per square foot times the number of square feet where Superior installed pavers. Thus, according to Superi- or, the total amount Superior was entitled to under the contract was $59,400 (6,600 square feet multiplied by the unit price of $9.00 equals $59,400) rather than $45,000, and, therefore, Superior asserts, the Ga-ceks owe Superior $14,400.

Second, Superior argues that the trial court based its ruling in favor of the Ga-ceks on the ground that the parties did not execute a written order agreeing to the installation of pavers on the additional 1,600 square feet as an extra charge in accordance with the provision of the contract providing that “[a]ny alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate.” Superior argues that this second ground for the trial court’s ruling in favor of the Ga-ceks is erroneous because, Superior says, it is contrary to the intention of the parties as expressed in the contract and as expressed in the testimony of Buell.

However, assuming, without deciding, that Superior’s arguments regarding those two grounds are correct, the record nonetheless presents another valid legal basis for the trial court’s ruling in favor of the Gaceks with respect to Superior’s breach-of-contract claim, and, subject to exceptions not here applicable, “this [c]ourt will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court.” Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003).

In order to prevail on a breach-of-contract claim, a plaintiff must prove, among other things, “[its] own performance under the contract.” State Farm Fire & Cas. Co. v. Williams, 926 So.2d 1008, 1013 (Ala.2005). In order to satisfy that element, the plaintiff must prove that it substantially performed its obligations under the contract. See Mac Pon Co. v. Vinsant Painting & Decorating Co., 423 So.2d 216, 218 (Ala.1982). “Substantial performance of a contract does not contemplate exact performance of every detail but performance of all important parts.” Id. “Whether a party has substantially performed a promise under a contract is a question of fact to be determined from the circumstances of each case.” Cobbs v. Fred Burgos Constr. Co., 477 So.2d 335, 338 (Ala.1985).

In the case now before us, the undisputed evidence established that Superior did not install a base of 3" to 4" of 89/10 crushed limestone before installing the pavers as required by the contract. Press-ley testified that Superior’s failure to install that base caused the pavers to move, that the movement of the pavers allowed gaps to form between the pavers, and that the gaps allowed water into the gaps between the pavers, which, in turn, caused the pavers to move further apart. Based on that evidence, the trial court could have found that, because Superior did not install the 3" to 4" base of 89/10 crushed limestone before installing the pavers, Superior did not substantially perform the contract.

In this case, the trial court made no specific findings of fact. When a trial court makes no specific findings of fact, this court will assume that the trial court made those findings necessary to support the judgment. See Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992) (“Because the trial judge made no specific findings of fact, this Court will assume that the trial judge made those findings necessary to support the judgment.”). Accordingly, because the record contains credible evidence from which the trial court could have found that Superior did not substantially perform the contract, we affirm the ruling of the trial court in favor of the Gaceks with respect to Superior’s breach-of-contract claim on that ground.

Superior also argues that the trial court erred in ruling in favor of the Gaceks with respect to Superior’s claim that the Gaceks owed Superior $14,400 for work and labor Superior had performed.

“In an action for work and labor, the measure of recovery is the reasonable value of such work and labor performed. If such work and labor has no reasonable value for the purpose for which it was requested, there may be no recovery. Our examination of the testimony discloses a conflict as to quantity, quality and value of such work. It is the duty of the court hearing the testimony ore tenus to resolve the conflict and render a judgment accordingly. Having reached and entered such judgment, it is supported by a presumption of correctness upon appeal. Such presumption may be overcome only by a showing of absence of support in the evidence or that it is unjust.”

Jones v. LeFlore, 421 So.2d 1287, 1288 (Ala.Civ.App.1982) (citation omitted). The record contains evidence from which the trial court could have found that, because Superior did not install the base of 3" to 4" of 89/10 crushed limestone specified by the contract, the total value of the work and labor performed by Superior did not exceed the $46,500 the Gaceks paid Superior and, therefore, that Superior was not entitled to prevail on its claim that the Gaceks owed Superior $14,400 for work and labor done. As noted above, because the trial court did not make any specific findings of fact in this case, we will assume that the trial court made those findings necessary to support its judgment. See Trans-america, supra. Moreover, because a finding that the total value of the work and labor performed by Superior did not exceed the $46,500 the Gaceks paid Superior is supported by credible evidence, we cannot reverse the trial court’s ruling in favor of the Gaceks with respect to Superior’s claim that the Gaceks owed Superior $14,400 for work and labor done. See Jones, supra.

Superior also argues that the trial court erred in awarding the Gaceks damages in the amount of $60,500 on their claims because, Superior says, that award constituted the cost to repair the defects in Superi- or’s work instead of the difference between the market value of the Gaceks’ property with the driveway constructed in a workmanlike manner in accordance with the contract and the market value of the Ga-ceks’ property with the driveway as actually constructed by Superior. Superior argues that this was error because, given the circumstances of this case, the award of repair costs constitutes economic waste. Superior cites Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239, 129 N.E. 889 (1921), in support of this argument.

In Jacob & Youngs, Kent contracted with Jacob & Youngs, Inc. (“Jacob”), a contractor, to build a dwelling for a price of approximately $77,000. One of the specifications for the plumbing work provided that “ ‘[a]ll wrought-iron pipe must be well galvanized, lap welded pipe of the grade known as “standard pipe” of Reading manufacture.’ ” 230 N.Y. at 240, 129 N.E. at 890. Jacob completed the construction in June 1914, and Kent occupied the dwelling without complaint until he discovered in March 1915 that some of the pipe had been made in factories other than Reading. The architect then ordered Jacob to do the plumbing work anew. Because most of the plumbing pipes were encased within the walls, Jacob’s compliance -with that order would have required it to demolish substantial portions of the completed dwelling at great expense. Jacob did not comply with the order and requested a certificate that the final payment was due. Upon refusal of the certificate, Jacob sued Kent to recover the unpaid balance of the contract price, which was $3,483.46. The trial court excluded evidence offered by Jacob that tended to show that the brand of pipe installed was of the same quality as Reading pipe and directed a verdict in favor of Kent, and Jacob appealed. The Appellate Division of the New York Supreme Court reversed the trial court’s judgment and ordered a new trial. Kent then appealed to the Court of Appeals of New York, which affirmed the judgment of the Appellate Division. Justice Cardozo, writing for the majority, stated:

“In the circumstances of this case, we think the measure of the allowance is not the cost of replacement, which would be great, but the difference in value, which would be either nominal or nothing. Some of the exposed sections [of pipe] might perhaps have been replaced at moderate expense. [Kent] did not limit his demand to them, but treated the plumbing as a unit to be corrected from cellar to roof. In point of fact, [Jacob] never reached the stage at which evidence of the extent of the allowance became necessary. The trial court had excluded evidence that the defect was unsubstantial, and in view of that ruling there was no occasion for [Jacob] to go farther with an offer of proof. We think, however, that the offer, if it had been made, would not of necessity have been defective because directed to difference in value. It is true that in most cases the cost of replacement is the measure. Spence v. Ham, [163 N.Y. 220, 57 N.E. 412 (1900) ]. The owner is entitled to the money which will permit him to complete, unless the cost of completion is grossly and, unfairly out of proportion to the good to be attained. When that is true, the measure is the difference in value. Specifications call, let us say, for a foundation built of granite quarried in Vermont. On the completion of the building, the owner learns that through the blunder of a subcontractor part of the foundation has been built of granite of the same quality quarried in New Hampshire. The measure of allowance is not the cost of reconstruction. ‘There may be omissions of that [kind] which could not afterwards be supplied exactly as called for by the contract without taking down the building to its foundations, and at the same time the omission may not affect the value of the building for use or otherwise, except so slightly as to be hardly appreciable.’ Handy v. Bliss, 204 Mass. 513, 519, 90 N.E. 864, 134 Am. St. Rep. 673 [ (1910) ]. Cf. Foeller v. Heintz, 137 Wis. 169, 178, 118 N.W. 543, 24 L.R.A.(N.S.) 321, 327 [ (1908) ]; Oberlies v. Bullinger, 132 N.Y. 598, 601, 30 N.E. 999 [ (1892) ]; 2 Williston on Contracts, § 805, p. 1541. The rule that gives a remedy in cases of substantial performance with compensation for defects of trivial or inappreciable importance has been developed by the courts as an instrument of justice. The measure of the allowance must be shaped to the same end.”

230 N.Y. at 244-45, 129 N.E. at 891-92 (emphasis added).

In the case now before us, however, the evidence would support a finding that the defects in Superior’s performance were substantial, rather than nominal as was the defect in Jacob’s performance in Jacob & Youngs. Accordingly, we conclude that the trial court did not err in awarding the Gaceks the cost to repair the defects in Superior’s work based on the ground that it constituted economic waste.

Superior next argues that the trial court erred in awarding the Gaceks $60,500 because, Superior says, regardless of whether awarding the Gaceks the cost to repair the defects in Superior’s work would constitute economic waste, the proper measure of damages was the difference between the market value of the Gaceks’ property with the driveway constructed in a workmanlike manner in accordance with the contract and the market value of the Ga-ceks’ property with the driveway as it was actually constructed. However, in Kohn v. Johnson, 565 So.2d 165, 168-69 (Ala.1990), the supreme court held that an owner who had sued a contractor because of defective work in constructing an addition to her home was entitled to recover the reasonable cost of making the contractor’s work conform to the contract where that amount did not constitute economic waste. Based on the authority of Kohn, we conclude that the trial court did not err in awarding the Gaceks the cost to repair the defects in Superior’s work.

Superior next argues that the trial court erred in awarding the Gaceks $60,500 without allowing Superior a setoff in the amount of $14,400. However, this argument has no merit because, as we discussed above, the trial court’s rulings in favor of the Gaceks with respect to Superi- or’s claims seeking recovery of the $14,400 are due to be affirmed, and, consequently, Superior was not entitled to a setoff in that amount.

Finally, Superior argues that the trial court erred in denying Superior’s motion to enforce the mediation agreement. However, the trial court held a hearing regarding that motion, and the record on appeal does not contain a transcript of that hearing. In the absence of a transcript of that hearing, we must presume that the trial court’s order denying Superior’s motion to enforce the mediation agreement was supported by evidence introduced at the hearing. See Prescott v. Prescott, 6 So.3d 552, 554 (Ala.Civ.App.2008).

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

PITTMAN, J., concurs.

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

      . The evidence at trial indicated that Superior was seeking $14,400 rather than $14,350.

      . Buell ceased being an owner of Superior in 2008.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Elizabeth P. DODD et al. v. SEMMES DEVELOPMENT CO., LLC, and Tom Dodd Nursery, Inc., a/k/a Tom Dodd Nurseries.
    2090308.
    Court of Civil Appeals of Alabama.
    June 10, 2011.
    Joseph O. Kulakowski, Mobile, for appellants.
    J. Stephen Harvey of McDowell Knight Roedder & Sledge, LLC, Mobile, for ap-pellees.
   PER CURIAM.

Elizabeth P. Dodd, the estate of Thomas H. Dodd, Jr., and Holly and Camellia, LLC (collectively referred to as “the Dodds”), appeal from a partial summary judgment, which the Mobile Circuit Court certified as final pursuant to Rule 54(b), Ala. R. Civ. P., in favor of Semmes Development Co., LLC (“SDC”), and Tom Dodd Nursery, Inc., a/k/a Tom Dodd Nurseries (“the nursery”). We hold that the trial court erred in certifying the partial summary judgment as final pursuant to Rule 54(b), and, therefore, we dismiss the appeal.

The pertinent facts are as follows. The nursery, purporting to have a fee-simple ownership interest in a 40-foot by 90-foot parcel of land in Section 22, Township 3 South, Range 3 West in Mobile County (“the easement parcel”), had granted an easement to SDC across that parcel. SDC thereafter obtained the right to acquire a parcel of land in Section 23, Township 3 South, Range 3 West in Mobile County, which parcel is adjacent to the easement parcel, for development purposes (“the development parcel”). Section 22 is west of Section 23. A road known as Mill Street purportedly runs between the easement parcel and the developmental parcel. For reference purposes only, a map from the record depicting where SDC and the nursery assert the easement parcel, Mill Street, and the development parcel are in relation to each other is attached to this opinion as an appendix. The record indicates that SDC must be able to access the development parcel by way of Mill Street in order to develop or otherwise use the development parcel. At some point while SDC was preparing to purchase the development parcel, Elizabeth Dodd, Thomas Dodd, Jr., and Holly and Camellia, LLC, informed SDC that they owned the property that included the easement parcel and Mill Street and that they intended to restrict SDC’s access to the development parcel by way of the easement parcel and Mill Street.

On March 19, 2009, SDC and the nursery filed a declaratory-judgment action against Elizabeth Dodd; Thomas H. Dodd, Jr.; Holly and Camellia, LLC; and Mobile County seeking to quiet title, relief under a theory of ejectment, and injunctive relief. After Elizabeth Dodd, Thomas Dodd, Jr., and Holly and Camellia, LLC, were served, Thomas Dodd, Jr., died; the court was properly notified of his death, and his estate was substituted as a party in the action. On June 3, 2009, the Dodds answered the complaint and filed a counterclaim seeking, essentially, a judgment declaring that the Dodds had an ownership interest in the easement parcel and Mill Street. However, in their answer, the Dodds stated that they made “no claim as to [‘]Mill Street[’]”; rather, they denied the existence of Mill Street as a public way. In their counterclaim, the Dodds asserted that, in November 2000, to facilitate the sale of the nursery, Elizabeth Dodd and Thomas Dodd, Jr., had entered into a land-swap transaction with the nursery. As a result of a surveying error, the Dodds asserted, the November 2000 deed from the nursery to Elizabeth Dodd and Thomas Dodd, Jr., had failed to include the easement parcel. Specifically, the Dodds alleged the following:

“In 2000, [the nursery] was to be sold. Plastic houses, utilized by the nursery, were located on property owned by Thomas H. Dodd, Jr. and Elizabeth P. Dodd. A land swap agreement was entered into between Thomas H. Dodd, Jr. and Elizabeth P. Dodd and the nursery. The understanding and agreement was that Thomas H. Dodd, Jr. and Elizabeth P. Dodd would swap the land on which the plastic houses were located in exchange for all that land to the [e]ast of the homeplace of Thomas H. Dodd, Jr. and Elizabeth P. Dodd, which was the land of [the nursery’s] business office, which ran to the section line between Section 22 and Section 23. In 2000, Polysurveying was hired by the nursery to provide descriptions of the lands to be swapped.
“The Polysurveying surveyor made an error by utilizing a starting point 40' west of the starting point that should have been utilized by erroneously ‘creating’ a 40' right-of-way and demarcating the erroneously ‘created’ 40' right-of-way as ‘Mill Street.’ The ‘Mill Street’ error allotted for 40' for ‘Mill Street’ to the west of the East line of Section 22. When, in fact, ‘Mill Street’ does not exist, but if it did exist, would only exist to the east of the West line of Section 23 and not west of the West line of Section 23.”

In other words, the Dodds asserted that a survey prepared by an entity named Poly-surveying (“the Polysurveying survey”) had erroneously carved out a 40-foot public way for Mill Street located to the west of the section line separating section 22 and section 23 and averred that the Dodds were the rightful owners of that 40-foot strip, which includes the easement parcel. Based on those alleged facts, the Dodds sought a court-ordered correction of the November 2000 deed, which had been based on the purportedly erroneous Poly-surveying survey.

Before the Dodds filed their answer and counterclaim, on May 22, 2009, SDC and the nursery filed a motion for a partial summary judgment (“the summary-judgment motion”) on the issue whether Mill Street is a public way. In September 2009, SDC and the nursery supplemented the summary-judgment motion with a survey performed by an entity named Rowe Surveying and Engineering dated July 13, 2009 (“the first Rowe survey”). The first Rowe survey revealed that the section line separating section 22 and section 23 formed the western boundary of Mill Street; in other words, the first Rowe survey indicated that Mill Street is in section 23. A few days later, the Dodds filed a motion to continue the summary-judgment hearing. In their motion, the Dodds averred that the Mobile County Engineer had been “reviewing the [first Rowe] survey” and “[had] not yet reached an opinion as to the correctness of that survey.” The trial court granted a continuance and rescheduled that hearing for October 30, 2009.

On October 28, 2009, the Dodds and Mobile County moved for a court-ordered boundary survey of the properties at issue (“the survey motion”), pursuant to Ala. Code 1975, § 35-3-20 and § 35-3-21. The Dodds and Mobile County filed the survey motion because, they asserted, there is a discrepancy between the Polysurveying survey and the first Rowe survey as to the correct location of the section line separating section 22 and section 23. The trial court scheduled a hearing on the survey motion for November 2, 2009. The summary-judgment hearing previously scheduled for October 30, 2009, did not take place; however, at the hearing on November 2, 2009, the trial court heard arguments on both the summary-judgment motion and the survey motion. On November 3, 2009, SDC and the nursery again supplemented the summary-judgment motion with a revised survey of Mill Street prepared by Rowe (“the second Rowe survey”). On November 12, 2009, the trial court entered a partial summary judgment in favor of SDC and the nursery, stating that “Mill Street, as depicted on [the second Rowe survey] ..., dated July 13, 2009,” correctly showed that the western boundary of Mill Street was located at the west line of section 23; the trial court’s order also stated that Mill Street was a public way. The trial court certified its order dated November 12, 2009, as a final judgment, pursuant to Rule 54(b), Ala. R. Civ. P. On December 23, 2009, the Dodds appealed; that appeal was transferred to this court pursuant to Ala.Code 1975, § 12-2-7(6).

The trial court’s judgment purports to be a final judgment as to the location of Mill Street and as to the status of Mill Street as a public way. Although the trial court adopted the second Rowe survey’s depiction of Mill Street in concluding that its western boundary line was located at the west line of section 23, that court did not make a determination as to the correct location of the section line between section 22 and section 23, on which the rights of the parties as to the easement parcel depend and which section line is shown to be located in different places on the Rowe surveys and the Polysurveying survey. Specifically, the trial court did not resolve the conflict between the Polysurveying survey and the first and second Rowe surveys. We refrain from inferring that the trial court’s conclusion that the western boundary of Mill Street is located at the west line of section 23 also amounts to a conclusion that the second Rowe survey depicts the correct location of the section line between section 22 and section 23, because to do so would require us to make a factual determination; additionally, the trial court did not resolve the issue of ownership as to the easement parcel.

This court is to “notice a jurisdictional defect ex mero motu.” Albright v. Poe, 52 So.3d 545, 546 (Ala.Civ.App.2010). Here, because separate adjudication of the claims addressed in the trial court’s partial summary judgment and the remaining claims could lead to inconsistent results, we conclude that the trial court’s partial summary judgment was not ripe for Rule 54(b) certification and that the trial court thus erred in certifying its judgment as final. See Hurst v. Cook, 981 So.2d 1143, 1151 (Ala.Civ.App.2007).

Rule 54(b) states, in part, as follows:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”
In Hurst, this court stated:
“‘In Moss v. Williams, 747 So.2d 905, 907 (Ala.Civ.App.1999), this court stated:
“ ‘ “Not every order has the requisite element of finality that can trigger the operation of Rule 54(b), Ala. R. Civ. P. James v. Alabama Coalition for Equity, Inc., 713 So.2d 937 (Ala.1997). ‘Rule 54(b) certification should be made only in exceptional cases and should not be entered routinely.’ Parrish v. Blazer Financial Services, Inc., 682 So.2d 1383 (Ala.Civ.App.1996).”
“‘Further, “‘[a]ppellate review in a piecemeal fashion is not favored, and trial courts should certify a judgment as final, pursuant to Rule 54(b), only in a case where the failure to do so might have a harsh effect.’” Point Clear Landing Ass’n, Inc. v. Point Clear Landing, Inc., 864 So.2d 369, 371 (Ala.Civ.App.2003) (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999)).’
“First Southern Bank v. O’Brien, 931 So.2d 50, 52-53 (Ala.Civ.App.2005).
“Our supreme court has further explained that in cases in which an adjudicated claim and an unadjudicated counterclaim are ‘closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results,’ Rule 54(b) certification is inappropriate. Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987). In Branch, the trial court certified a summary judgment on a claim alleging that an obligor had defaulted on a promissory note as a final judgment pursuant to Rule 54(b); the obligor’s fraud counterclaim relating to the conduct of the loan officer in securing his signature on the note remained pending in the trial court. Branch, 514 So.2d at 1373. The supreme court noted:
“ ‘Rule 54(b) is properly applied in a situation where the claim and the counterclaim present more than one claim for relief, either of which could have been separately enforced. Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975). Under “appropriate facts,” a partial summary judgment on an original claim may be finally adjudicated pursuant to Rule 54(b), leaving a counterclaim undecided so that the parties can further litigate the issues presented by the counterclaim.’
“Id. at 1374.”

981 So.2d at 1148-49. Further, in Hurst, we explained that “a judgment disposing of counterclaims that are in the nature of defenses to an unresolved original claim should not be certified pursuant to Rule 54(b).” 981 So.2d at 1151.

In response to SDC and the nursery’s quiet-title claim against the Dodds as to the easement parcel, the Dodds’ counterclaim asserted that the November 2000 deed was due to be amended because it had been written pursuant to the Polysur-veying survey (which survey, the Dodds asserted, incorrectly described the location of the easement parcel because it had incorrectly depicted a 40-foot wide parcel and had labeled that parcel “Mill Street”). If the trial court were to rule that the Polysurveying survey depicts the correct location of the section line between section 22 and section 23, such a ruling would be inconsistent with its partial summary judgment as to the correct location of Mill Street, because the trial court’s partial summary judgment is based on the second Rowe survey, which depicts the location of the section line between section 22 and section 23 differently than the Polysurvey-ing survey. Moreover, this case does not present “exceptional” circumstances warranting 54(b) certification. See Hurst, 981 So.2d at 1148-49. We therefore hold that the trial court erred in certifying its partial summary judgment as final pursuant to Rule 54(b), and we dismiss the appeal.

APPEAR DISMISSED.

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

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

APPENDIX

      . Mobile County is not a party to this appeal.

      . The first Rowe survey and the second Rowe survey are materially identical. In fact, the two surveys appear to be copies of the same survey dated July 13, 2009. The only difference between the surveys is that the second Rowe survey includes very small, handwritten notes in the margin. Those notes have no bearing on the survey’s placement of Mill Street east of the western border of section 23 (i.e., within section 23).


author: KELLUM, Judge.

text:
    Luvertte WILLIAMS v. STATE of Alabama.
    CR-07-1439.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 2009.
    Rehearing Denied Feb. 19, 2010.
    Timothy David Roper, Bessemer, for appellant.
    Troy King, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Luvertte Williams, was convicted of one count of first-degree rape, a violation of § 13A-6-61, Ala.Code 1975. Williams was sentenced to 30 years’ imprisonment and was ordered to pay $50 to the Crime Victims Compensation Fund.

The evidence presented at trial established the following. During November 2004, Williams lived in the same apartment as the victim, W.M., the victim’s mother, the victim’s sister, J.W., the victim’s niece and a friend of the victim’s mother. Testimony presented at trial established that Williams had fathered a child by J.W. and was living in the apartment to assist J.W. with their child. W.M., who was born on August 1, 1994, testified that sometime in November 2004, Williams chased her from the living room of the apartment into W.M.’s mother’s bathroom, took off W.M.’s pants and underwear, and engaged in sexual intercourse with her. W.M. testified that Williams engaged in sexual intercourse with her on at least one other occasion — in December 2005. W.M.’s mother learned of these events in January 2006, at which time she took W.M. to the hospital for a physical examination. The exam indicated evidence of sexual abuse. On August 25, 2006, Williams was indicted for first-degree rape. On April 10, 2008, the jury convicted Williams of first-degree rape. This appeal followed.

Williams argues that the trial court erred when it denied his motion in limine and allowed the State to present evidence regarding his sexual relations with the victim’s sister. Specifically, Williams argues that the trial court committed reversible error when it allowed the State to introduce at trial evidence that Williams had fathered a child by the victim’s sister.

The State initially argues that Williams did not properly preserve this issue for appellate review. The State claims that after the trial court denied Williams’s motion in limine, Williams did not object to the introduction of the evidence that Williams had fathered a child by J.W. when the testimony was first presented at trial. Thus, the State contends, he did not properly preserve his claim for appellate review. Nor, the State argues, did Williams obtain a continuing objection from the trial court that would have properly preserved his objection to the denial of his motion in limine.

“ ‘In Bush v. Alabama Farm Bureau Mutual Casualty Insurance Company, Inc., 576 So.2d 175 (Ala.1991), the Alabama Supreme Court stated the general rule regarding motions in limine:
“ ‘ “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 Limine: 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.’ ” ’ ”

Harrington v. State, 858 So.2d 278, 291-92 (Ala.Crim.App.2002), quoting Bowles v. State, 784 So.2d 1077, 1079 (Ala.Crim.App.2000), quoting in turn other cases. In Perry v. Brakefield, 584 So.2d 602 (Ala.1988), the Alabama Supreme Court further explained the preservation of a ruling on a motion in limine:

“In Robinson v. Kierce, 518 So.2d 1005, 1009 (Ala.1987), we held as follows:
“ ‘ “We hold, therefore, that an appellant who suffers an adverse ruling on a motion to exclude evidence (or other matters, e.g., argument of counsel), made in limine, preserves this adverse ruling for post-judgment and appellate review only if he objects to the introduction of the proffered evidence or other matters and assigns specific grounds [therefor] at the time of trial, unless he has obtained express acquiescence of the trial judge that such subsequent objection to evidence proffered at trial and assignment of grounds [therefor] are not necessary. See, C. Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala. L.Rev. 1 (1981).” ’ (Quoting Liberty National Life Insurance Co. v. Beasley, 466 So.2d 935 (Ala.1985).)
“This Court further held in Killingsworth v. Killingsworth, 283 Ala. 345, 354, 217 So.2d 57, 65-66 (1968), as follows:
“‘“[A]n offer of proof is not necessary, in order to preserve an objection to a ruling of exclusion for review, where the offer of proof would be a useless gesture by virtue of the attitude of the trial court, or where the court has ruled broadly that evidence of a particular class or type, or evidence in support of the theory or fact which the party is seeking to establish, is inadmissible.” ’ (Quoting 4 C.J.S. Appeal and Error, § 291.)
“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 (final emphasis supplied).

Before trial, Williams filed a motion in limine asking the trial court to bar the State from introducing evidence of Williams’s sexual relations with J.W., including evidence that Williams had fathered a child by J.W. The trial court denied this motion without explanation. However, during the State’s opening argument, the following occurred:

“[PROSECUTOR]: I expect the evidence to show you that it is an indisputable fact that when this man, who is 21 years old now, but that when he was 17, he fathered a child—
“[DEFENSE COUNSEL]: Objection, Your Honor. Bringing my client’s character to prove bad acts.”

(R. 53.) At this point, the jury was excused, and the following discussion took place among the trial court, defense counsel, and the prosecutor:

“[DEFENSE COUNSEL]: Your Hon- or, I’m objecting strongly. As a matter of fact, I’m going to move for a mistrial simply because that information came out. That information is so damaging there is no way this man is going to get a fair trial with that information.
“THE COURT: Has there been a hearing on this already?
“[PROSECUTOR]: Yes, sir.
“[DEFENSE COUNSEL]: Yes, sir, it has Your Honor. But again I’m objecting strongly. This is character evidence. My client’s character is not in issue in this case. He’s not taken the stand. He’s not taken the stand to testify. This is a violation of 403, 404(a) of the Alabama Rules of Evidence.
“THE COURT: Anything further?
“[DEFENSE COUNSEL]: No, sir.
“[PROSECUTOR]: No, sir.
“THE COURT: This evidence in a pretrial motion has previously been determined that it would be allowed in this case?
“[PROSECUTOR]: Yes, sir.
“[DEFENSE COUNSEL]: You Honor, if I recall — if we check the records, I don’t know if there was a definite ruling at that time as to whether or not that information should be entered into evidence.
“[PROSECUTOR]: Yes, sir, you denied his motion.
“THE COURT: [Defense counsel], this has been predetermined that it would be admissible if the State offered it, do you agree or disagree?
“[DEFENSE COUNSEL]: I disagree, Your Honor. I think we need to verify that.
“[PROSECUTOR]: Where is the — the Court file is right there in front of you. “THE COURT: 4-30-07 motion in li-mine, motion denied?
“[PROSECUTOR]: Yes, sir.
“[DEFENSE COUNSEL]: Judge, I’m going to renew the motion. I have to. I’m going to. No way this man is going to get a fair trial if this evidence comes in as early as the closing statement [sic] on the grounds of relevancy.
[DEFENSE COUNSEL]: It is irrelevant. We are talking about the sister— we are not even talking about the victim in this case. We are talking about the sister of the victim. It has no relevancy whatsoever with what he’s charged with today.
“THE COURT: All right. Anything further?
“[DEFENSE COUNSEL]: No, sir.
“THE COURT: All right. I ovemiled your objection or I intend to. I will do it again to make sure it’s in the record. You preserved, your record.”

(R. 53-56) (emphasis supplied).

Immediately thereafter, in the presence of the jury and after the trial judge ordered the State to resume its opening remarks, trial counsel for Williams objected to the introduction of the evidence that Williams had fathered a child by the victim’s sister once again:

“[PROSECUTOR]: Yes, sir. When this young man was 17 he fathered a child with a 12-year-old girl named [J.W.] She also goes by the name .... She is the biological sister—
“[DEFENSE COUNSEL]: Objection. Your honor, again, I want to object, continuously object. That information is introduced or tried to be introduced in court as evidence.
“THE COURT: [Defense counsel], we have gone over the fact that that has been covered in a pretrial motion. And it’s been ruled on by the Comt. And it’s properly preserved through the motion in limine and by your objection. You have the right to object as many times as you want to. But, overruled again. Continue.”

(R. 56-57 (emphasis supplied).)

During the State’s case-in-chief, defense counsel did not object again to the mention of Williams’s fathering a child by the victim’s sister during testimony by the victim, the victim’s sister, or the victim’s mother. However, defense counsel did object to the mention of the pregnancy by Debbi Land, a counselor who interviewed the victim after the rapes, when she stated that the sister’s pregnancy was one fact she considered in reaching the conclusion that W.M. had been raped. The trial court sustained the objection — on relevancy grounds — and ordered the jury to disregard Land’s statement.

Even though defense counsel did not object to the introduction to the evidence that J.W. had become pregnant as a result of sexual intercourse with Williams when the evidence was first introduced at trial, the record clearly establishes that the trial court’s decision regarding the admissibility of the evidence regarding J.W.’s pregnancy by Williams was “absolute” and “unconditional,” thus precluding the need by defense counsel to renew his objection in order to properly preserve this issue for appellate review. Further, the trial court twice told defense counsel that his objection regarding this evidence was overruled and that counsel’s objection was properly preserved “for the record.” See Ex parte Parks, 923 So.2d 330, 333 (Ala.2005) (“The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.”). Given these circumstances, the issue of the admissibility of evidence that Williams had fathered a child by the victim’s sister was properly preserved for our review. Therefore, we will proceed to the merits of Williams’s claim.

Williams contends that evidence demonstrating that he fathered a child by the victim’s sister, who was 12 years old at the time she became pregnant by Williams, was improper character evidence of prior bad acts and was inadmissible under Rule 404(a), Ala. R. Evid. Furthermore, Williams argues that the evidence is not admissible under Rule 404(b), Ala. R. Evid., as an exception to the general ban of character evidence in Rule 404(a).

“ ‘ “The admission or exclusion of evidence is a matter within the sound discretion of the trial court.” Taylor v. State, 808 So.2d 1148, 1191 (Ala.Crim.App.2000), aff'd, 808 So.2d 1215 (Ala.2001). “The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000).’ ”

Harris v. State, 2 So.3d 880, 927 (Ala.Crim.App.2007), quoting Gavin v. State, 891 So.2d 907, 963 (Ala.Crim.App.2003).

Evidence that Williams fathered the victim’s sister’s child was presented several different times at trial. The victim testified to the following:

“[PROSECUTOR]: Okay. And now, did anybody else live in that apartment with you ever?
“[VICTIM]: [Luvertte] Williams.
“[PROSECUTOR]: [Luvertte] moved in when?
“[VICTIM]: After they had the baby.”

(R. 90-91.)

The victim’s sister, J.W., also testified:
“[PROSECUTOR]: And how do you know the defendant [Luvertte] Williams?
“[J.W.]: He’s the father of my daughter.
“[PROSECUTOR]: What kind of relationship did you have with [Luvertte Williams]?
“[J.W.]: We were together for about three months.
“[PROSECUTOR]: You went together?
“[J.W.]: Yes, ma’am.
“[PROSECUTOR]: What does that mean?
“[J.W.]: We had sexual contact for about three months.
“[PROSECUTOR]: How old were you when that began?
“[J.W.]: I was twelve.
“[PROSECUTOR]: Do you remember how many times you all had sex?
“[J.W.]: Three.
“[PROSECUTOR]: Okay. And when did you get pregnant?
“[J.W.]: I got pregnant in February.
“[PROSECUTOR]: When was your daughter born?
“[J.W.]: ‘04.
“[PROSECUTOR]: What is her birthday?
“[J.W.]: November 29, 2004.”

(R. 137-40.)

Finally, the victim’s mother testified about the relationship between Williams and J.W.:

“[PROSECUTOR]: While you were living there at Flint Hill, did you learn that one of your daughters there was sexually active?
“[WITNESS]: Yes, ma’am.
“[PROSECUTOR]: Which daughter?
“[WITNESS]: [J.W.]
“[PROSECUTOR]: And did you know at the time who she had been sexually active with?
“[WITNESS]: No, not really.
“[PROSECUTOR]: And at some point did you learn who she was sexually active with?
“[WITNESS]: Yes, ma’am.
“[PROSECUTOR]: And who was that? Who was she having sex with?
“[WITNESS]: What I learned?
“[PROSECUTOR]: Yes?
“[WITNESS]: [Luvertte] Williams.
“[PROSECUTOR]: And when your daughter [J.W.], when you found out she had been sexually active with [Luvertte Williams], how old was she?
“[WITNESS]: Twelve.”

(R. 153-55.) Later in her testimony, the mother explained that she allowed Williams to move into the apartment with her family so that he could help take care of J.W.’s baby. When asked if Williams lived with her, W.M., J.W., and J.W.’s child after they moved into a new residence, she replied that he did not move with them but that he would come by the house to “see his baby.” (R. 172.)

In a rape case, evidence showing the defendant impregnated the sister of the victim is inadmissible in Alabama. In the seminal case of Lee v. State, 246 Ala. 69, 18 So.2d 706 (1944), the Alabama Supreme Court considered facts similar to the ones at hand in which testimony regarding the pregnancy of the victim’s sister was admitted over the defendant’s objection at trial. The Court explained:

“The State should not have been allowed to prove the fact of Ruby’s pregnancy or the procuring of her abortion. The fact of Ruby’s pregnancy, through the agency of her father, does tend to shed light on the main inquiry, but unlike the fact of the sexual intercourse with her father, it also tends to unduly multiply the issues and to divert the minds of the jury from the main issue.”

246 Ala. at 72, 18 So.2d at 708. Since Lee was decided, both this Court and the Alabama Supreme Court have consistently ruled that this type of evidence is inadmissible character evidence that does not fit into any of the exceptions in Rule 404(b), Ala. R. Evid. See, e.g., Bowden v. State, 538 So.2d 1226, 1238 (Ala.1988) (“We also agree, however, that evidence of the sister’s pregnancy and subsequent stillbirth would ‘tend to unduly multiply the issues and to divert the minds of the jury from the main issue.’ ”); Watson v. State, 538 So.2d 1216, 1222 (Ala.Crim.App.1987) (“Although the evidence of the sexual abuse of prosecutrix’s sister was admissible, the fact of her pregnancy was inadmissible, according to the holding of Lee.... ”); Grizzell v. State, 507 So.2d 969, 971 (Ala.Crim.App.1986) (“Similarly, the fact that the sister was permitted to testify over objection that she became pregnant and had a child by her father was also reversible error.”); see also Sellers v. State, 41 Ala.App. 612, 615, 145 So.2d 853, 856 (1962) (“[Evidence that the father had engaged in sexual relations with his minor daughter] was permissible to establish a pattern of promiscuous sexual behavior with children, ... but the pregnancy resulting from that behavior multiplied the issues and tended to divert the minds of the jury from the main issue.”).

The State argues that this evidence was admissible because, it argues, the evidence was intertwined with the facts of this case and “was necessary to explain why Williams was living in the home with the victim.” (State’s brief, at 15-16.) We question the relevance of establishing why Williams was living in the same home as the victim. Likewise, Williams’s identity was not at issue; thus, the Supreme Court’s decision in Bowden, supra, would bar admission of any testimony concerning Williams’s collateral acts with J.W. under the identity exception to Rule 404(b). Further, it does not appear that evidence of Williams’s relationship with J.W. was admissible to establish his motive for raping W.M., see, e.g., Garner v. State, 977 So.2d 533, 537 (Ala.Crim.App.2007) (holding that testimony regarding defendant’s prior sexual abuse was relevant to show his “unnatural sexual desire for young girls”), since Williams’s relationship with J.W. appears to have been more of a dating relationship — albeit with an underaged girl — rather than one predicated upon his unnatural desire for young girls. In any event, even if evidence of Williams’s sexual relationship with J.W. were admissible under one of the Rule 404(b) exceptions, the Supreme Court’s decisions in both Lee and Bowden, supra, make it perfectly clear that the admission of evidence concerning J.W.’s pregnancy by Williams would nonetheless constitute reversible error. As this Court noted in Grizzell v. State:

“This evidence as to the pregnancies of the two sisters was simply evidence of prior bad acts of a criminal defendant which is presumptively prejudicial. Cofer [v. State, 440 So.2d 1121 (Ala.1983) ]. It interjects a collateral issue into the case which would divert the minds of the jury from the main issue. The admission of such evidence was clearly erroneous under the authorities herein cited.
“The admission of such evidence was obviously ‘prosecution overkill.’ ”

507 So.2d at 971.

This Court is bound by decisions of the Alabama Supreme Court, see § 12-3-16, Ala.Code 1975, and “is without authority to overrule the decisions of [that] court.” Jones v. City of Huntsville, 288 Ala. 242, 244, 259 So.2d 288, 290 (1972). However reprehensible Williams’s actions were, this Court has no choice but to adhere to the precedent established by our Supreme Court. Based on the foregoing, the judgment of the circuit court is reversed, and this cause is remanded for a new trial.

REVERSED AND REMANDED.

WELCH, WINDOM, and MAIN, JJ., concur. WISE, P.J., concurs in the result.

      . Initials are used throughout the decision to protect the anonymity of the victim, W.M., and her sister, J.W., who are both minors. See Rule 52, Ala. R.App. P. We note that J.W. is not related to the appellant and her surname — while beginning with the same letter as the appellant's — differs from that of the appellant.

      . The indictment identified Williams as "Lu-vertte Williams,” alias "Antoine Luvertte Williams.” Williams is referred to as both "Antoine” and "Luvertte” at various places in the record. For purposes of clarity, we will refer to him in this opinion as "Williams” or "Luvertte Williams.”

      . As best we are able to determine from the record, Williams’s relationship with J.W. began when he was 16 or 17 years old.


author: COBB, Chief Justice.

text:
    Ex parte State of Alabama. (In re Luvertte WILLIAMS v. STATE of Alabama).
    1090759.
    Supreme Court of Alabama.
    March 18, 2011.

      Troy King, atty. gen., and Tracy M. Daniel, asst. atty. gen., for petitioner.
    T. David Roper, Bessemer, for respondent.

       Justice Main and Justice Wise were members of the Court of Criminal Appeals when that court considered this case.

   COBB, Chief Justice.

On April 10, 2008, Luvertte Williams was convicted of rape in the first degree, a violation of § 13A-6-61, Ala.Code 1975. He was sentenced to 30 years’ imprisonment and was ordered to pay $50 to the Crime Victims Compensation Fund. Williams appealed his conviction and sentence to the Court of Criminal Appeals, which reversed his conviction. See Williams v. State, 73 So.3d 731 (Ala.Crim.App.2009). The State petitioned for the writ of certiorari, and we granted the State’s petition on June 17, 2010. We now reverse the decision of the Court of Criminal Appeals and remand the case.

Facts

The evidence presented at trial established the following. The victim’s sister, J.W., was born in June 1991. From approximately December 2003 to February 2004, when she was 12, J.W. engaged in a sexual relationship with Williams, who was 17 at the time. In February 2004, she conceived a child by Williams, and the baby was born in November 2004. Williams admitted to being the baby’s father, and, at some point after he became aware that J.W. was pregnant, he moved into the house with J.W. to assist J.W. with the baby. Also living in the house at that time were J.W.’s then 10-year-old sister, W.M., and the mother of J.W. and W.M.

W.M. testified that, before the baby was born, W.M. was asleep on a mattress in the living room when Williams entered the living room, sat on top of her, and attempted to remove her clothes, waking W.M. up in the process. W.M. testified that she screamed and that Williams ran into the nearby bathroom.

W.M. further testified that, one night after the baby was born, she was again sleeping in the living room. Williams “came in,” and W.M. ran into the bathroom and locked the door. As W.M. braced herself against the door, she could hear Williams picking the lock with “some kind of screwdriver.” Williams was able to pick the lock, and he forced his way into the bathroom, causing W.M. to fall to the floor. They struggled, and Williams removed W.M.’s clothes and raped her, then left the bathroom. As he left, he pointed his forefinger at her and cocked his thumb in a way that reminded W.M. of a gun. For some time afterward, W.M. was too afraid of Williams to tell anyone what had happened.

W.M. testified that, in all, Williams raped her “about three times” in her life, the last time on Christmas Eve 2005, when she was 11 years old. In January 2006, W.M.’s mother learned that Williams had raped W.M., and she took W.M. to the hospital for a physical examination.

The physician who examined W.M., Dr. David W. Bernard, testified at Williams’s trial. Dr. Bernard is an associate professor at the medical school at the University of Alabama at Birmingham (“UAB”). In his medical practice, Dr. Bernard spends about 75 percent of his time working in the UAB emergency room and 25 percent of his time working in a child-abuse clinic known as the CHIPS clinic. Dr. Bernard has training and experience in pediatric emergency medicine and pediatric child-abuse diagnosis and treatment, including examinations to determine whether a child has been sexually abused.

During the course of Dr. Bernard’s January 2006 examination of W.M., Dr. Bernard noted evidence of prior blunt-force injuiy to the tissues of W.M.’s vagina and the absence of hymenal tissue in an area Dr. Bernard described as “an area where all girls should have hymenal tissue.” In addition, W.M. had symptoms of a sexually transmitted disease, which laboratory tests subsequently confirmed was chlamydia. Dr. Bernard testified that chlamydia could not have been transmitted to W.M. by simply living in the same house with a person who had the disease. According to Dr. Bernard, the only way for chlamydia to be transferred to the genitals of a child would be through direct contact with another person’s bodily secretions that contained the chlamydia organism. Based on his observations, Dr. Bernard concluded that W.M. had been the victim of sexual abuse.

Before the trial in this case, while Williams was in jail, the parties consented to a court order requiring Williams to submit to a chlamydia test to be administered by the doctor at the jail. Williams submitted to the test, and the results were positive for chlamydia. At trial, during the cross-examination of the jail nurse-technician, Williams’s counsel sought to discredit the results of the chlamydia test by pointing out that the laboratory records reflected an incorrect date of birth for Williams and by questioning whether the test sample could have belonged to another person named Luvertte Williams. Under cross-examination, the nurse-technician admitted that “it could be a possibility” that more than one inmate in the jail while Williams was there was named Luvertte Williams.

At trial, J.W. testified that she was tested for chlamydia after she learned that W.M. had tested positive for the disease. J.W.’s test results were also positive for chlamydia.

Counsel for the State asked Dr. Bernard the following question during his testimony at trial:

“If you were — would you find it significant that [WM.], who has chlamydia, that her sister [J.W.] also has chlamydia, and that ... Williams .. also has chlamydia. Would you find that to be significant with them living all in the same house?”

Dr. Bernard responded:

“Chlamydia is a very rare disease in children. And we know that [it] is only passed by sexual contact in that age child. So to have two children in the same house with it, and to have an older person with chlamydia in the same home, you wonder about the fact that chlamydia could have been transmitted within the home via sexual contact.”

Williams did not contend during his trial that W.M. had not been raped. Rather, he presented the defense that the State had not proven that he was the person who had raped W.M.

Procedural History

On August 25, 2006, Williams was indicted on two counts of first-degree rape. Before trial, Williams filed a motion in limine requesting an order prohibiting the State from entering into evidence certain prior wrongful acts of Williams, specifically that he had had a sexual relationship with J.W. when she was 12 and had fathered a child by her and that he had been placed in a psychiatric facility for 2 years for molesting his 7-year-old cousin when he was 15 years of age. The State stipulated that it would not introduce evidence as to the time Williams spent in the psychiatric facility for molesting his seven-year-old cousin. The trial court then overruled the motion as to Williams’s sexual relationship with J.W. and as to the fact that he had fathered a child with her.

At trial, Williams again moved for an order prohibiting the State from introducing evidence of Williams’s sexual relationship with J.W., including evidence indicating that Williams had fathered a child by J.W. The trial court again denied the motion.

On April 10, 2008, the jury convicted Williams of first-degree rape. Williams appealed. On appeal, Williams argued that the trial court committed reversible error when it allowed the State to introduce at trial evidence showing that Williams had fathered a child by the victim’s sister. The Court of Criminal Appeals held that, under Lee v. State, 246 Ala. 69, 18 So.2d 706 (1944), “evidence showing the defendant impregnated the sister of the victim is inadmissible in Alabama.” 73 So.3d at 736. The Court of Criminal Appeals concluded that evidence of Williams’s sexual relationship with J.W. and the fact that he had fathered a child with her fit none of the exceptions found in Rule 404(b), Ala. R. Evid., regarding the introduction of a defendant’s prior “crimes, wrongs, or acts.” Accordingly, the Court of Criminal Appeals reversed Williams’s conviction and his sentence.

Standard of Review

“The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing” that the trial court exceeded its discretion. Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000).

Analysis

I. The Holding of Lee v. State

In reversing Williams’s conviction and sentence, the Court of Criminal Appeals relied heavily on Lee v. State, 246 Ala. 69, 18 So.2d 706 (1944). In that 1944 case, Virgil Lee was indicted, tried, and convicted of the charge that he “‘did carnally know, or abuse in the attempt to carnally know [his daughter] Elese Lee, a girl under the age of twelve years,’ ” in violation of Title 14, § 398, Ala.Code 1940. 246 Ala. at 71, 18 So.2d at 707. The prosecution introduced testimony evidence indicating that Lee had previously made sexual advances on two of his other daughters, Mary Ruth and Jewel, and that he had placed his hands on their breasts and genitals. Id. In addition, the prosecution presented evidence indicating that Virgil Lee had raped Ruby, another of his daughters, who testified that she had become pregnant by her father. 246 Ala. at 71-72, 18 So.2d at 707-08. Ruby also testified that she had been married and that her father first raped her shortly after she had left her husband and returned home. 246 Ala. at 72, 18 So.2d at 708. This Court noted that Ruby’s testimony was “not at all clear or satisfactory as to whether she became pregnant at a time which necessarily would exclude the possibility” that she conceived the child by her husband, not her father. 246 Ala. at 72, 18 So.2d at 708.

With little discussion, the Court held that the trial court properly admitted testimony of Virgil Lee’s sexual abuse of Mary Ruth, Jewel, and Ruby. 246 Ala. at 71, 18 So.2d at 707. However, the Court went on to consider whether the trial court properly admitted evidence of the fact of Ruby’s pregnancy. 246 Ala. at 71-72, 18 So.2d at 707-08. In analyzing the admissibility of evidence pertaining to Ruby’s pregnancy, the Court stated the following general rule:

“ ‘In inquiries of fact, dependent on circumstantial evidence for their solution, no certain mle can be laid down, which will define, with unerring accuracy, what collateral facts and circumstances are sufficiently proximate to justify their admission in evidence. Human transactions are too varied, to admit of such clear decía,ration of the rule. Whatever tends to shed light on the main inquiry, and does not withdraw attention from such main inquiry, by obtruding upon the minds of the jury matters which are foreign, or of questionable pertinency, is, as a general rule, admissible evidence. On the other hand, undue multiplication of the issues is to be steadily guarded against, as tending to divert the minds of jurors from the main issue.’ ”

246 Ala. at 72, 18 So.2d at 708 (quoting Mattison v. State, 55 Ala. 224, 232 (1876) (emphasis added)). Cf. Rule 403, Ala. R. Evid. (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”).

After considering the facts of the case in light of the general rule against the admission of evidence that unduly confuses and multiplies the issues before the jury, the Court in Lee held that the evidence pertaining to Ruby’s pregnancy was not admissible. Specifically, the Court held:

“The fact of Ruby’s pregnancy, through the agency of her father, does tend to shed light on the main inquiry, but unlike the fact of sexual intercourse with her father, it also tends to unduly multiply the issues and to divert the minds of the jury from the main issue.”

246 Ala. at 72, 18 So.2d at 708.

As this Court noted in Lee, the paternity of Ruby’s unborn child was not satisfactorily established by her testimony. Thus, evidence of Ruby’s pregnancy introduced a side issue — the question of the child’s paternity. See 246 Ala. at 72, 18 So.2d at 708 (“[Ruby’s] testimony is not at all clear or satisfactory as to whether she became pregnant at a time which would necessarily exclude the possibility of her husband’s agency.”). Any potential relevance of Ruby’s pregnancy to the rape of Elese was far outweighed by the potential for the question of the child’s paternity to multiply and confuse the issues before the jury. See Lee, 246 Ala. at 72, 18 So.2d at 708 (“ ‘[U]ndue multiplication of the issues is to be steadily guarded against, as tending to divert the minds of jurors from the main issue.’ ’’(quoting Mattison, 55 Ala. at 232)); cf. Rule 403, Ala. R. Evid.

Thus, contrary to the holding of the Court of Criminal Appeals in this case, Lee did not lay down a blanket rule that “evidence showing the defendant impregnated the sister of the victim is inadmissible in Alabama.” Williams v. State, 73 So.3d at 736. Rather, this Court in Lee held that, under the facts and circumstances of that case, the potential for prejudice and confusion outweighed any probative value that evidence of Ruby’s pregnancy might have had. In fact, this Court’s opinion in Lee strongly cautions that “no certain rule can be laid down, which will define, with unerring accuracy, what collateral facts and circumstances are sufficiently proximate to justify their admission in evidence. Human transactions are too varied to admit of such clear declaration of the rule.” Lee, 246 Ala. at 72, 18 So.2d at 708.

II. Progeny of Lee v. State

In holding that “evidence showing the defendant impregnated the sister of the victim is inadmissible in Alabama,” Williams v. State, 73 So.3d at 736, the Court of Criminal Appeals also relied on Bowden v. State, 538 So.2d 1226 (Ala.1988), Watson v. State, 538 So.2d 1216 (Ala.Crim.App.1987), Grizzell v. State, 507 So.2d 969 (Ala.Crim.App.1986), and Sellers v. State, 41 Ala.App. 612, 145 So.2d 853 (1962). In reviewing the holding of the Court of Criminal Appeals, we consider these cases as well as related cases decided by this Court.

In Bowden v. State, supra, this Court affirmed the Court of Criminal Appeals’ decision in Watson v. State, supra. In Anonymous v. State, 507 So.2d 972 (Ala.1987), this Court affirmed that court’s judgment in Grizzell v. State, supra. A plain reading of these cases reveals that they do not support the holding of the Court of Criminal Appeals in this case that “evidence showing the defendant impregnated the sister of the victim is inadmissible in Alabama.” 73 So.3d at 736. In both Bowden and Anonymous, this Court considered, among other issues, the admissibility of evidence indicating that the defendant in each of those cases had committed wrongful sexual acts with the victim’s sister and the admissibility of evidence indicating that the defendant had impregnated the victim’s sister. In both cases, this Court held that those issues were to be determined by applying certain general rules of evidence to the facts of each case. See Bowden, 538 So.2d at 1233 (“The same factors for determining the admissibility of collateral acts of misconduct by the accused in other types of prosecutions are to be applied in determining the admissibility of collateral acts of sexual misconduct in the prosecution of sex crimes. Which is to say that, provided the test for materiality is met, evidence of collateral crimes or misconduct may be admitted. Of necessity, this analysis is case by case.” (final emphasis added)); Bowden, 538 So.2d at 1227 (“Applying the [general exclusionary] rule [of evidence] and its exceptions to the facts in Anonymous, we concluded that the Court of Criminal Appeals correctly determined that the evidence of ... the [victim’s] sister’s pregnancy and resulting child was inadmissible.”); Anonymous, 507 So.2d at 973 (“In order to reverse the judgment of the Court of Criminal Appeals, a determination must necessarily be made that the evidence which that court held to be inadmissible was, indeed, admissible. To make that determination, the applicable laws of evidence must be applied to the unique facts of this case.” (emphasis added)).

In Sellers v. State, 41 Ala.App. 612, 145 So.2d 858 (1962), the victim’s sister testified at trial that the defendant had raped and impregnated her. Unlike Lee, however, there was no suggestion in Sellers that someone other than the defendant could have been the father of the victim’s sister’s child. The Court of Appeals provided no analysis of the application of general rules of evidence to the specific facts of the case. Rather, citing the result in Lee, the Court of Appeals held that testimony that the defendant had raped the victim’s sister was admissible but that evidence of the resulting pregnancy “multiplied the issues and tended to divert the minds of the jury from the main issue.” Sellers, 41 Ala.App. at 615, 145 So.2d at 856.

It appears that, in Sellers, the Court of Appeals interpreted the result Lee as a blanket rule that, in a prosecution for rape of a child, evidence showing that the defendant raped another child is always admissible, while evidence of the resulting pregnancy of the other child is never admissible. See Sellers, 41 Ala.App. at 615, 145 So.2d at 856 (“We cannot circumvent the holding of the Lee case and are, therefore, compelled on the authority thereof to order a reversal of this case.”). Lee, of course, did not lay down such a blanket rule. See Lee, 246 Ala. at 72, 18 So.2d at 708. Because Sellers misapplies Lee in this regard and also conflicts with Bowden and Anonymous, we hereby overrule Sellers.

Alabama has no general rule that “evidence showing the defendant impregnated the sister of the victim is inadmissible.” Williams, 73 So.3d at 736. Rather, the admissibility of such evidence is to be determined according to the rules of evidence on “a case by case” basis. Bowden, 538 So.2d at 1234.

III. The Admissibility of Evidence of J.W. Pregnancy

In Lee, Bowden, and Anonymous, supra, this Court considered the admissibility of evidence showing that the defendant had raped the victim’s sister and that the victim’s sister had become pregnant as a result. In each case, the Court held that these issues were to be determined by applying certain general rules of evidence to the unique facts of each case. We reiterate those rules of evidence before applying them to the particular facts of this case.

“All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States or that of the State of Alabama, by statute, by these rules, or by other rules applicable in the courts of this State.” Rule 402, Ala. R. Evid. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Rule 403, Ala. R. Evid. See Lee, 246 Ala. at 72, 18 So.2d at 708.

Further,

“[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....”

Rule 404(b), Ala. R. Evid. See Anonymous, 507 So.2d at 973 (“In a prosecution for one offense, evidence of collateral crimes or acts is generally inadmissible to prove the guilt of the accused.”(footnote omitted)); id. at 974 (“Although evidence of collateral crimes and acts may not be admitted to prove the accused’s bad character, it has been held admissible to prove such things as the accused’s criminal intent, his motive, or his identity, or to prove that the now-charged crime and another crime were committed pursuant to a single plan, design, scheme, or system.”); see also Bowden, 538 So.2d at 1233 (“The same factors for determining the admissibility of collateral acts of misconduct by the accused in other types of prosecutions are to be applied in determining the admissibility of collateral acts of sexual misconduct in the prosecution of sex crimes.”).

To be admissible for a purpose other than to prove that the accused acted in conformity with bad character traits, evidence of other crimes or wrongs “must be relevant to some issue that is material to the case.” Anonymous, 507 So.2d at 974; see also Bowden, 538 So.2d at 1233 (“[P]rovided the test for materiality is met, evidence of collateral crimes or misconduct may be admitted.”). In this case, in addition to W.M.’s testimony, Dr. Bernard’s testimony regarding W.M.’s injuries and the fact that she suffered from a sexually transmitted disease establishes that someone raped W.M. Williams does not dispute that W.M. was raped or sexually abused; rather, he contends that he was not the person who raped W.M. Thus, contrary to the holding of the Court of Criminal Appeals, the identity of W.M.’s rapist is a material issue in this case. Cf. Bowden, 538 So.2d at 1234 (holding that “there was a real and open issue as to the rapist’s identity” because the defendant contended that the victim was raped by someone other than himself).

The State argues that, under the facts of this case, evidence indicating that Williams had a sexual relationship with J.W. and that he fathered a child by her is relevant to prove the identity of W.M.’s rapist. According to Dr. Bernard, W.M. contracted chlamydia through sexual contact. Evidence was presented at trial indicating that Williams tested positive for chlamydia, although Williams elicited testimony to suggest that another inmate could have been the source of the positive chlamydia test administered by the jail staff. However, J.W. also tested positive for chlamydia. The fact that J.W. had a sexual relationship with Williams is established by her testimony and by Williams’s admissions that he fathered J.W.’s baby.

Dr. Bernard testified:

“Chlamydia is a very rare disease in children. And we know that [it] is only passed by sexual contact in that age child. So to have two children in the same house with it, and to have an older person with chlamydia in the same home, you wonder about the fact that chlamydia could have been transmitted within the home via sexual contact.”

As Dr. Bernard suggested in his testimony, the fact- of J.W.’s sexual relationship with Williams and her positive chlamydia test are relevant to show Williams’s identity as the rapist who gave W.M. chlamydia. Therefore, the Court of Criminal Appeals erred in holding that evidence of Williams’s wrongful acts with J.W. was immaterial to the issue of the identity of W.M.’s rapist. See Bowden, 538 So.2d at 1233 (“[P]rovided the test for materiality is met, evidence of collateral crimes or misconduct may be admitted.”).

Williams concedes that he is in fact the father of J.W.’s baby, and there is no question as to the baby’s paternity. Even if J.W.’s testimony regarding the fact of Williams’s sexual relationship with her would have alone been sufficient to establish the identity of the person who raped W.M., the fact that a pregnancy was the natural result of Williams’s sexual relationship with J.W. tends to confirm the existence of that sexual relationship and sheds light on a material issue. See Bowden, 538 So.2d at 1230 (“ ‘ “We know as a scientific fact that when a child has been born there has been an act of sexual intercourse (quoting Watson, 538 So.2d at 1220)); Rule 404, Ala. R. Evid. (“Evidence of other ... acts” is admissible for purposes other than to prove “the character of a person in order to show action in conformity therewith.”). Under the unique facts of this case, although relevant to Williams’s identity as W.M.’s chlamydia-positive rapist, the fact that Williams fathered a child by J.W. does not unduly confuse or compound the issues. Cf. Rule 403, Ala. R. Evid. (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of ... confusion of the issues, or misleading the jury....”); Lee, 246 Ala. at 72, 18 So.2d at 708 (“ ‘[U]ndue multiplication of the issues is to be steadily guarded against, as tending to divert the minds of jurors from the main issue.’ ’’(quoting Mattison, 55 Ala. at 232)).

Moreover, fathering a child, in and of itself, is not a wrongful act. The circumstances surrounding the conception of the baby in this case—ie., Williams’s sexual relationship with J.W. when she was 12 years old—constitute the “wrongful act” in question. Under the circumstances of this case, evidence that a baby resulted from Williams’s sexual activities with J.W. does not significantly add to the prejudice Williams would have suffered if the trial court had merely allowed J.W. to testify that Williams had sex with her when she was 12. See Lee, 246 Ala. at 72, 18 So.2d at 708 (“ “Whatever tends to shed light on the main inquiry, and does not withdraw attention from such main inquiry, ... is, as a general rule, admissible evidence.’ ’’(quoting Mattison, 55 Ala. at 232)). Cf. Rule 403, Ala. R. Evid. (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice....”).

Accordingly, we hold that the trial court did not exceed its discretion by admitting evidence that Williams was the father of J.W.’s baby. The Court of Criminal Appeals erred in reversing Williams’s conviction and sentence. We now reverse its judgment and remand this case to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WOODALL, STUART, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

MAIN and WISE, JJ., recuse themselves.

      . The indictment identified Williams as “Lu-vertte Williams,” alias "Antoine Luvertte Williams.” Williams is referred to as "Antoine,” "Twon,” and "Luvertte” at various places in the record.

      . Initials are used throughout this opinion to protect the anonymity of the victim, W.M., and her sister, J.W. See Rule 52, Ala. R.App. P. We note that J.W. is not related to Williams and that her surname is not the same as his.

      . In 1944, when Lee was decided, scientific methods for determining paternity, such as DNA testing, were not available, and it was usually difficult, if not impossible, to accurately determine the paternity of a child born of an unmarried mother who had sexual relations with more than one man around the time that the child was conceived.

      . In Bowden, this Court consolidated the appeals from two cases, Watson v. State, supra, and Bowden v. State, 538 So.2d 1226 (Ala.Crim.App.1987). Bowden, 538 So.2d at 1227.

      . "In its opinion on certiorari review, the Supreme Court dropped Grizzell’s name from the style of the case and restyled the Court of Criminal Appeals' opinion 'Anonymous v. State.’ The Court of Criminal Appeals declined to do likewise.” Anonymous v. State, 507 So.2d at 972, Reporter’s Note.

      . J.W. testified at trial that she had had a sexual relationship with Williams nine months before the birth of her baby. J.W. also testified that Williams admitted to her that he was the father of her child. In addition, the prosecution entered into evidence a letter to the baby that was in Williams’s handwriting. In the letter, Williams wrote, "Happy Birthday [baby’s name], by [Williams], your daddy.”