author: MAIN, Justice.

text:
    Ex parte BANCORPSOUTH BANK. (In re Thomas L. Busby v. BancorpSouth Bank).
    1111209.
    Supreme Court of Alabama.
    Oct. 19, 2012.

      David A. Boyet III of Anders, Boyett & Brady, P.C., Mobile, for petitioner.
    Romaine S. Scott III and Rita H. Scott of Scott & Scott Law, LLC, Fairhope, for respondent.
   MAIN, Justice.

BancorpSouth Bank (“the Bank”) petitions this Court for a writ of mandamus directing the trial court to vacate its order denying the Bank’s motion to strike the jury demand in the complaint filed against it by Thomas L. Busby and to enter an order granting the Bank’s motion, thereby enforcing Busby’s waiver of a jury trial. We grant the petition and issue the writ.

I. Factual Background and Procedural History

Busco, LLC, a limited-liability company of which Busby was a member, built a house for resale using the proceeds from a construction loan provided Busco by the Bank. Busco sold the house to Jeanette Sims, whose mortgage loan was insufficient to pay the construction loan in full. The Bank then loaned Sims $70,000 to pay off the construction loan and to provide funds for additional improvements to the house. In connection with the Bank’s loan to Sims and the later refinancing of that loan, Busby signed three documents, one each in 2008, 2009, and 2010, entitled “Unconditional and Continuing Guaranty.” Each guaranty agreement consisted of two pages and contained the following language on the first page in the same type size as the other language:

“7. Waivers. Guarantor expressly waives TRIAL BY JURY per Section 22

(Capitalization in originals.)

Each guaranty agreement contained the following language on the second page in Section 22, which, as the last section of the agreement, was located a few inches above the signature line and which provided in bold, capitalized type:

“22. Waiver of Trial by Jury. GUARANTOR AND BANK WAIVE ANY RIGHT OF TRIAL BY JURY IN ANY ACTION BY BANK OR BY GUARANTOR IN ANY WAY CONNECTED WITH THIS GUARANTY, THE OBLIGATION EVIDENCED HEREBY, INCLUDING THOSE OF BORROWER, UNDER OR ARISING FROM ANY OTHER LOAN DOCUMENTS, THE TRANSACTIONS) RELATED HERETO, OR THE DEBTOR-CREDITOR RELATIONSHIP CREATED HEREBY.”

The only item between the signature line and Section 22 was a box labeled “NOTICE TO GUARANTOR,” which phrase was also capitalized in bold type.

The Bank states that Busby has both an undergraduate degree in business and a law degree, that he has worked as a stockbroker, that he is the majority owner of a company that teaches clients about the stock market, that he has guaranteed approximately 20 other loans for various entities, and that he has borrowed money himself on various occasions. The Bank states that Busby is able to read and to understand promissory notes and that he understands the difference between a limited guaranty and an unlimited guaranty. The Bank also states, citing Busby’s deposition, that Busby admitted that he did not read the guaranty agreements before he signed them but conceded that he had the opportunity to read them before signing them. Busby also stated in his deposition that he did not read the guaranty agreements because the amount guaranteed was not what he had agreed to and he expected to receive paperwork “fixing it” from Phillip Webb, the loan officer with whom he dealt at the Bank.

Sims defaulted on the loan, and the Bank sought payment from Busby, as guarantor. Busby then sued the Bank, alleging that the Bank had defrauded him by representing that his guaranty was for $63,000 when in fact it was for $70,000 (the full amount of Sims’s loan) and by promising him that it would modify the guaranty agreement so that it would cover only 89% of Sims’s indebtedness. Busby also sought a judgment declaring that his guaranty had been terminated by an agreement of the parties, and he demanded a jury trial. The Bank filed a counterclaim alleging that Busby had breached the guaranty agreements and sought a judgment declaring the extent of Busby’s obligations under the agreements. The Bank moved to strike Busby’s jury demand on the basis of the jury-trial waivers in the guaranty agreements executed by Busby. Busby opposed the Bank’s motion. The trial court denied the Bank’s motion to strike Busby’s jury demand. Busby then filed an amended complaint, alleging that the Bank had misrepresented the terms and amount of the guaranties, that it had “willfully, wantonly or negligently breached a duty to fully inform Busby of the amount and duration of the loan he guaranteed [and] suppressed its intent to hold Busby liable for the full amount ... [and had] failed to mitigate its damages.” The Bank then petitioned this Court for a writ of mandamus.

II. Standard of Review

“The standard governing our review of an issue presented in a petition for the writ of mandamus is well established:

“‘[Mjandamus is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’
“Ex parte Edgar, 543 So.2d 682, 684 (Ala.1989).
“Mandamus is an appropriate remedy where the availability of a jury trial is at issue, as it is in this case. Ex parte Merchants Nat’l Bank of Mobile, 257 Ala. 663, 665, 60 So.2d 684, 686 (1952).”

Ex parte Cupps, 782 So.2d 772, 774-75 (Ala.2000).

III. Analysis

The right to a jury trial is a significant right in our jurisprudence. “Public policy, the Alabama Rules of Civil

Procedure, and the Alabama Constitution all express a preference for trial by jury.” Ex parte AIG Baker Orange Beach Wharf, L.L.C., 49 So.3d 1198, 1200-01 (Ala.2010) (citing Ex parte Cupps, 782 So.2d at 775). Nevertheless, the right to a jury trial is not absolute in that “no constitutional or statutory provision prohibits a person from waiving his or her right to trial by jury.” Mall, Inc. v. Robbins, 412 So.2d 1197, 1199 (Ala.1982).

The Bank first argues that the jury-trial waivers in the guaranty agreements signed by Busby are enforceable. In Gaylord Department Stores of Alabama v. Stephens, 404 So.2d 586, 588 (Ala.1981), this Court articulated three factors to consider in evaluating whether to enforce a contractual waiver of the right to trial by jury: (1) whether the waiver is buried deep in a long contract; (2) whether the bargaining power of the parties is equal; and (3) whether the waiver was intelligently and knowingly made. The Bank argues that all three of these factors support enforcing Busby’s waiver of the right to a jury trial.

As to the first factor, the Bank argues that none of the jury-trial waivers are hidden deep within a long contract. We agree. The guaranty agreements are each only two pages long, and, although the waiver provision in Section 7 on the first page does not stand out, i.e., it is not emphasized by bold type or capitalization, there is no question that the waiver in Section 22 on the second page is clear and noticeable. It is a separate paragraph; the text is bold and capitalized; and it is located only one paragraph above the signature line. Busby does not disagree as to the first factor.

As to the second factor, the Bank contends that courts addressing jury-trial waivers have focused on the business experience or acumen of the party signing the waiver. See, e.g., Mall, Inc., 412 So.2d at 1199. In this case, the Bank argues, Busby has both a business degree and a law degree and is an experienced businessman, all elements tending to show equal bargaining power between the parties. Busby, however, argues in his brief that the bargaining power between him and the Bank was not equal. Busby argues:

“[The Bank] uses form documents which are not susceptible to negotiation. Despite Busby being a businessman and having a law degree, or perhaps because of his being a businessman, he understood that nothing in the boilerplate of the guaranty was negotiable.
“He understood any attempt to modify the standard terms would be futile. His choice was to sign the guaranty to allow the Sims loan to close or to walk away. He had no bargaining power when it came to the language in the guaranty. The form was prepared by [the Bank] and was its standard form of guaranty....
“Equally clear is that Busby did not knowingly and intentionally sign away his right to a jury trial by signing the waiver. Even though he did knowingly and intentionally sign a form of guaranty, he also understood that he had to take the form as it was. He did not have any opportunity to negotiate changes but was presented with a completed guaranty at one [branch of the Bank] that had been prepared at another.”

Busby’s brief, at 15. If we accepted Busby’s argument, however, every form contract drafted and presented by a business institution and signed by an individual, no matter how educated the individual was, would be subject to being disavowed by the signatory on the basis of “unequal bargaining power.” Busby and the Bank contracted with each other for Busby to guarantee the Sims loan, and each party clearly had equal bargaining power in entering into that contract. We will not rewrite the contract for either party.

As to the third factor, the Bank points out that Busby has extensive experience in borrowing money and signing guaranty agreements and that he can understand legal documents, including loan documents and guaranty agreements. The jury-trial waiver language is clear and uncomplicated. Furthermore, Busby, with his business and law degrees, has the knowledge and experience to satisfy this Court that the waiver of the rights to a jury trial was knowingly and intelligently made.

After reviewing the three Gaylord factors, we conclude that the jury-trial waivers in the guaranty agreements signed by Busby are enforceable. We now turn to the Bank’s second argument — that, despite Busby’s assertion that the jury-trial waivers do not apply to his tort claims sounding in fraud, the jury-trial waivers in the guaranty agreements are applicable to all the claims asserted in Busby’s original and amended complaints.

In Ex parte AIG Baker Orange Beach Wharf, L.L.C., supra, this Court enforced broad jury-trial waiver language in a contract and ordered the trial court to grant the petitioner’s motion to strike the jury demand. This Court recognized a distinction between contractual jury waivers that are limited to claims “arising from” the agreement, which are to be narrowly constructed and which exclude claims that do not require a reference to or construction of the underlying contract for resolution, and broader waiver provisions that cover claims “arising out of or relating to” a contract. The AIG Baker Court relied upon analogous cases dealing with arbitration clauses, such as Selma Medical Center v. Manayan, 733 So.2d 382 (Ala.1999) (holding that arbitration clause covering any dispute “concerning any aspect of’ agreement between doctor and hospital required arbitration of fraudulent-inducement claim); Beaver Construction Co. v. Lakehouse, L.L.C., 742 So.2d 159, 165 (Ala.1999) (noting that “ ‘relating-to’ language has been held to constitute a relatively broad arbitration provision”); General Motors Corp. v. Stokes, 850 So.2d 1239 (Ala.2002) (broadly interpreting provision in dealer-relocation agreement calling for arbitration of claims “arising under or relating to” agreement and negotiation thereof to include claims that manufacturer fraudulently induced dealer to enter into agreement); Ex parte Gates, 675 So.2d 371 (Ala.1996) (holding that clause in mobile-home sales contract providing for arbitration of claims “arising from or relating to” the contract required arbitration of buyers’ claims that defendants had misrepresented or concealed facts to induce them to enter into agreement because claims were asserted “in connection with” contract); and Ex parte Lorance, 669 So.2d 890 (Ala.1995) (holding that clause in doctor’s professional-services contract requiring arbitration of any controversy or claim “arising out of or relating to” contract covered doctor’s claim that he was fraudulently induced to enter into agreement).

The Bank argues that the jury-trial waivers in the guaranty agreements executed by Busby fall within the broader category, covering “any action in any way connected with” the guaranty agreements. Busby argues that none of his claims are “connected with” the guaranty agreements “as that phrase is used in the jury waiver.” Relying on Parker v. State, 333 So.2d 806, 809 (Ala.1976), Busby argues that “[t]he language ‘connected with’ applies only prospectively after an event has occurred.” Busby’s brief, at 9. He contends that the Bank’s alleged misrepresentations preceded his signing the guaranty agreements, and he argues that, “[b]y analogy, ‘connected with’ would apply only to conduct occurring after a contract has been entered into because there is no contract with which the conduct can be connected until the contract actually exists.” Busby’s brief, at 9-10.

Busby’s reliance on Parker is misplaced. In Parker, this Court considered the question “whether an office holder may be impeached for [a criminal] offense involving moral turpitude which occurred prior to his assumption of office.” 333 So.2d at 806. The Court interpreted a constitutional provision providing for the removal from office of certain State officers

“ ‘for willful neglect of duty, corruption in office, incompetency, or intemperance in the use of intoxicating liquors or narcotics to such an extent, in view of the dignity of the office and importance of its duties, as unfits the officer for the discharge of such duties, or for any offense involving moral turpitude while in office, or committed under color thereof, or connected therewith.’ ”

333 So.2d at 807 (quoting § 173, Art. VII, Ala. Constitution 1901). The Court concluded that it could not see “how an individual’s acts could possibly be connected with an office which he did not hold either de jure or de facto at the time the alleged acts were committed.” 333 So.2d at 809. The Parker Court’s holding has nothing to do with the interpretation of contractual language of any kind, including whether the signatory of the contract has waived the right to a jury trial.

Busby also argues in his brief that none of his claims are “connected or related to an interpretation and performance of the guaranty but, instead, to [the Bank’s] insistence on compelling Busby to pay amounts the [Bank] itself has agreed Busby does not owe.” Busby’s brief, at 17. We disagree. In his initial complaint, Busby alleged that the Bank fraudulently represented to him that it would modify the amount he had guaranteed and that the Bank breached its guaranty agreements with him because it “caus[ed] the guaranty to cover a different, larger amount of debt than agreed upon by [Busby].” He also sought a judgment declaring that he was “not indebted to [the Bank] because the original guaranty was terminated by agreement.” In his amended complaint, Busby further alleged that the Bank “engaged in deceptive behavior” when it presented him with incomplete guaranty agreements for his signature and then filled in the blanks in those agreements without his knowledge or permission; that the Bank engaged in promissory fraud when it induced him to sign guaranty agreements that were incorrect as represented, which errors the Bank did not intend to correct when it made them; that the Bank breached its duty “to make full and truthful disclosures in connection with all its loans”; that the Bank fraudulently suppressed its intent to hold him liable for more than he agreed to guarantee; and that the Bank failed to mitigate its damages. The jury-trial waiver language in the guaranty agreements says not only that both the Bank and Busby waive a jury trial in “any action by bank or by guarantor in any way connected with this guaranty,” but also that the Bank and Busby waive a jury trial as to “the obligation evidenced hereby, including those of borrower, under or arising from any other loan documents, the transaction(s) related hereto, or the debtor-creditor relationship created hereby.” The foregoing language is substantially similar to the jury-trial waiver language in AIG Baker, in which this Court held that the defendant’s “allegations of fraudulent inducement on [the plaintiffs] part in entering into the lease agreement and the guaranty document clearly pertain to or relate to the lease agreement (its negotiation), the ‘dealings of the parties’ with respect to the lease agreement and the guaranty document, and a ‘dispute or controversy’ between the parties.” 49 So.3d at 1202. In this case, the jury-trial waiver language clearly applies to all of Busby’s allegations that are “in any way connected with” the guaranty agreements, “the transaction(s) related hereto,” or “the debtor-creditor relationship” created by the guaranty agreements. We conclude that the scope of the jury-trial waiver language in the guaranty agreements is broad enough to encompass Busby’s claims.

We note that Busby contends that the Bank submitted deposition testimony to this Court that it did not present to the trial court when that court denied the Bank’s motion to strike Busby’s jury demand. Therefore, Busby argues, the Bank does not have a clear legal right to a writ of mandamus because, he argues, the Bank can file a motion to reconsider with the trial court that includes the material the trial court did not previously consider. The Bank replies that it has submitted nothing to this Court that it did not submit to the trial court. It attached to its reply brief an e-filed stamped copy of its motion to strike the jury demand and Exhibit A attached to that motion, which consisted of excerpts and exhibits from Busby’s deposition. The Bank says that the same deposition excerpts are included in Appendix C to its petition for a writ of mandamus filed with this Court. This Court has reviewed the exhibits and appendices and has determined that the Bank has not submitted any documentation to this Court that was not before the trial court. Therefore, we conclude that the Bank has demonstrated that it has a clear legal right to have Busby’s jury demand stricken.

IV. Conclusion

We grant the petition, and we direct the trial court to vacate its order denying the Bank’s motion to strike Busby’s jury demand and to enter an order granting the Bank’s motion.

PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and WOODALL, BOLIN, and MURDOCK, JJ., concur.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Ex parte ADVANTAGE RESOURCING, INC. (In re Hennon Hollinghead v. Willstaff, Inc., et al.).
    2100716.
    Court of Civil Appeals of Alabama.
    April 20, 2012.

      David A. Hamby, Jr., and Austin S. Prestwood of Spear, Spear & Hamby, P.C., Mobile, for petitioner.
    Eaton G. Barnard and Robert A. Hawk of Eaton G. Barnard & Associates, P.C., Mobile, for respondent.
   PITTMAN, Judge.

Advantage Resourcing, Inc. (“the employer”), a corporate entity formerly known as “Willstaff Worldwide Temporary Services, Inc.,” seeks review of an order of the Mobile Circuit Court, entered on March 22, 2011, that awarded medical and temporary-total-disability benefits under the Alabama Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq. (“the Act”), to Hennon Hollinghead (“the employee”) and directed the employer to permit the employee to undergo a surgical procedure. The trial court awarded that relief based upon its determination that a slip-and-fall injury suffered by the employee on January 21, 2010, which injury the trial court deemed to be compensable under the Act because it was sustained while the employee was walking from his parked motor vehicle in order to enter his place of work that day before working hours, had contributed to the employee’s development of pain symptoms in his neck in the area of his cervical spine. The employee had originally filed a single-count complaint in the trial court seeking benefits from the employer under the Act, but the employee was later permitted to amend his complaint to assert a separate third-party tort claim against D & E Construction, L.L.C., the entity that, the employee alleged, had negligently caused debris to remain on the walkway that the employee was using when he fell; that claim remains pending in the trial court, along with the issue of the employee’s entitlement, if any, to further benefits from the employer under the Act.

The employer, in its brief to this court, asserts that appeal and not mandamus is the appropriate mechanism for seeking review of the trial court’s order, noting our holding in Belcher-Robinson Foundry, LLC v. Narr, 42 So.3d 774, 775-76 (Ala.Civ.App.2010), that “when a trial court ... awards medical benefits and temporary-total-disability benefits in addition to determining compensability, the trial court has rendered a final judgment that is susceptible to appellate review.” However, Narr involved only a single claim under the Act against a single defendant, not separate claims against separate defendants as are present in this case. Because the trial court’s order did not adjudicate all claims as to all parties, see Rule 54(b), Ala. R. Civ. P., the March 22, 2011, order is not a final judgment that would support an appeal. See Edmonds Indus. Coatings, Inc. v. Lolley, 863 So.2d 1121, 1122 (Ala.Civ.App.2003). Nevertheless, because the order presented for review in this case closely parallels, in its legal effect upon the parties’ rights and responsibilities, the order we reviewed in Ex parte Cowabunga, Inc., 67 So.3d 136, 138-39 (Ala.Civ.App.2011), in which we treated an appeal as a petition for a writ of mandamus, we will consider the employer’s appeal in this case as seeking a writ of mandamus directed to the trial court to set aside its order of March 22, 2011.

“The standard of appellate review in workers’ compensation cases is governed by § 25-5-81(e), Ala.Code 1975, which provides that, ‘[i]n reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.’ ‘Substantial evidence’ is ‘“evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala.1989)).
“When evidence is presented ore ten-us, it is the duty of the trial court, which had the opportunity to observe the witnesses and their demeanors, and not the appellate court, to make credibility determinations and to weigh the evidence presented. Blackman v. Gray Rider Truck Lines, Inc., 716 So.2d 698, 700 (Ala.Civ.App.1998). The role of the appellate court is not to reweigh the evidence but to affirm the judgment of the trial court if its findings are reasonably supported by the evidence and the correct legal conclusions have been drawn therefrom. Ex parte Trinity Indus., 680 So.2d at 268-69; Fryfogle v. Springhill Mem’l Hosp., Inc., 742 So.2d 1255 (Ala.Civ.App.1998), aff'd, 742 So.2d 1258 (Ala.1999). The ‘appellate court must view the facts in the light most favorable to the findings of the trial court.’ Ex parte Professional Bus. Owners Ass’n Workers’ Comp. Fund, 867 So.2d 1099, 1102 (Ala.2003).”

Ex parte Hayes, 70 So.3d 1211, 1215 (Ala.2011). Although a petition for the writ of mandamus and not an appeal is the proper mechanism by which the employer may obtain review of the March 22, 2011, order, the standard of review set forth in § 25-5-81(e) nonetheless applies. See Ex parte City of Prattville, 56 So.3d 684, 691 (Ala.Civ.App.2010) (applying substantial-evidence standard of review to factual findings made in nonfinal order entered in workers’ compensation action compelling an employer to provide medical treatment).

“[F]or an injury to be compensa-ble under the Workers’ Compensation Act, the employee must establish both legal and medical causation.” Ex parte Moncrief 627 So.2d 385, 388 (Ala.1993). The employer in this proceeding challenges the trial court’s determinations as to both causation prongs. “Whether the employment caused an injury is a question of fact to be resolved by the trial court,” Francis Powell Enters., Inc. v. Andrews, 21 So.3d 726, 732 (Ala.Civ.App.2009), a principle of law that directly implicates the deferential standard of review set forth by the supreme court in Hayes.

The employee was 72 years old on the date of his injury. Although the employee’s work experience included labor as a blacksmith, as a welder, and, in his youth, as a rodeo rider, the employee had more recently worked for Ronnie Davis Associates (“RDA”), a construction contractor for the Alabama Power Company, as a dump-truck driver; however, upon his having reached the age of 70, the employee was told that he was “too old to be carried on” RDA’s payroll and insurance and that he would have to obtain employment through a staffing company such as the employer in order to continue doing the work he had previously been doing.

On the date of the employee’s injury, the employee reported to his customary place of work — a “shop” located on the premises of the Thyssen-Krupp industrial plant — at approximately 5:80 a.m., which was his normal arrival time, and he entered the shop by using a walkway extending from a nearby parking lot to the shop (a walkway that, the employee testified, “everybody” at his workplace used). However, because the employee had left his portable two-way radio unit in his motor vehicle, he returned to the parking lot to retrieve it. As he again used the walkway heading toward the shop, the employee testified, he perceived “something happening] behind” him; turned to look behind him; resumed moving forward; and slipped on a piece of polyvinyl-chloride (“FVC”) piping that rolled underneath his foot, causing him to fall on his back and right side and to immediately experience debilitating pain. Unable to pick himself up from the ground after the injury, the employee immediately called for help from coworkers on the two-way radio, and he was subsequently transported to a local hospital for treatment and examination.

After the employee left the hospital, the employer’s workers’ compensation insurance carrier directed the employee to be examined by an industrial-medicine practitioner, who, after being unable to alleviate the employee’s continued pain symptoms, referred the employee to Dr. William C. Patton, an orthopedic specialist. After obtaining X-ray images and performing a physical examination, Dr. Patton initially believed that the employee’s neck pain stemmed from arthritis, but he directed the employee to undergo a magnetic-resonance-imaging (“MRI”) procedure to determine the presence of a herniated cervical vertebral disk; the MRI revealed foraminal stenosis, i.e., degenerative narrowing of nerve conduits, and an accumulation of fluid in the employee’s neck. Dr. Patton referred the employee to Dr. Kevin Donahoe, a orthopedic surgeon, for further assessment and treatment; during his examination, Dr. Donahoe observed that the employee had “Hoffman reflexes,” i.e., spasticity and fascieulation in forearm muscles that potentially indicate pressure in the region of the spinal cord near the fifth and sixth cervical vertebrae, and that the employee could not perform a heel-to-toe walk, a condition that is also potentially associated with spinal-cord pressure. A subsequent nerve-conduction study revealed the employee to have right pronator teres and triceps abnormalities that were attributable to problems with the nerve roots in the area of the employee’s sixth and seventh cervical vertebrae. Dr. Do-nahoe recommended that the employee undergo a surgical procedure (a corpecto-my) to remove impinging vertebral disks in the cervical spine in order to alleviate pressure upon the employee’s spinal cord and affected nerve roots, thereby decreasing his continued pain. Although the employee desired to undergo the recommended surgery, the employer declined to authorize it.

The employer contends that the employee’s injury did not arise out of and in the course of his employment and that the injury is thus not compensable under the Act as a matter of law. As the employer correctly notes in its brief, the supreme court, in Ex parte Patton, 77 So.3d 591 (Ala.2011), recently reconfirmed the principle — one which had been placed in some doubt by dicta in Ex parte Byrom, 895 So.2d 942 (Ala.2004) — that a claimant under the Act, in order to recover, must “ ‘establish a definite causal connection between the work and the injury5 ” such that “ ‘the rational mind [is] able to trace the resultant personal injury to a proximate cause set in motion by the employment, and not by some other agency.’ ” 77 So.3d at 594-95 (quoting Slimfold Mfg. Co. v. Martin, 417 So.2d 199, 202 (Ala.Civ.App.1981), and Wooten v. Roden, 260 Ala. 606, 611, 71 So.2d 802, 806 (1954)). Ex parte Patton leaves no room for dispute that the traditional “causal-connection” test of legal causation is in full force and effect in this state.

Unlike the injured employee at issue in Ex parte Patton, however, the employee in this case did not simply allege and prove that he had suffered a fall on an employer’s premises. Rather, the evidence in this case, viewed in a light most favorable to the employee, indicates that the employee, at the time that he fell on the PVC pipe, was in the process of returning to the shop, ie., the place where the employee reported at the start of each of his workdays, after having gone to his automobile to retrieve a two-way radio, which no party disputes was a tool of the employee’s work. The walkway that the employee used was used by other RDA workers at the time that the employee suffered his fall and subsequent injury, notwithstanding the fact that that path was marked as being impassable after the employee’s fall. That the fall in this case stemmed from a PVC pipe that had been allowed to remain in close proximity to a walkway leading to a shop at which the employee and his coworkers were to report for work each day and that the employee’s fall occurred at a time and place at which he would reasonably be expected to have reported in furtherance of the employment relationship both support the trial court’s determination that the employee’s fall indeed arose out of and in the course of his employment. See Ex parte Strickland, 553 So.2d 593, 595 (Ala.1989) (holding that employee’s injury, which had occurred after he had jumped from a fence enclosing his employer’s company parking lot after having retrieved personal items and a work tool belt from the lot, was “ ‘naturally related’ to his employment” for purposes of legal causation under the Act; employee was covered for a reasonable time, space, and opportunity before and after he was at or near his place of employment); see also Benoit Coal Mining Co. v. Moore, 215 Ala. 220, 222-23, 109 So. 878, 880 (1926) (“‘the movement of the employee in entering, at the appropriate time, the employer’s premises to discharge his function [and] his preparation to begin ... his actual service’ ” are deemed “ ‘naturally related and incidental acts in the course of the employment’” (quoting Ex parte Louisville & Nashville R.R., 208 Ala. 216, 219, 94 So. 289, 292 (1922))).

The employer also contests the trial court’s determination concerning medical causation. In Associated Grocers of the South, Inc. v. Goodwin, 965 So.2d 1102 (Ala.Civ.App.2007), this court restated several pertinent principles of law governing medical causation under the Act:

“To establish medical causation, the claimant must show that the accident was, in fact, a contributing cause of the employee’s [injury]. It is not necessary that the employment-related injury be the sole cause, or the dominant cause, of the [injury], so long as it was a contributing cause. If the employee suffers from a latent preexisting condition that inevitably will produce injury or death, but the employment acts on the preexisting condition to hasten the appearance of symptoms or accelerate its injurious consequences, the employment will be considered the medical cause of the resulting injury.”

965 So.2d at 1110 (citations omitted). In this regard, lay testimony, such as that of the employee here, is to be considered along with medical testimony as amounting to proof of causation because “‘[i]t is in the overall -substance and effect of the whole of the evidence, when viewed in the full context of all the lay and expert evidence, and not in the witness’s use of any magical words or phrases, that the [causation] test finds its application.’ ” Ex parte McInish, 47 So.3d 767, 779 (Ala.2008) (quoting Ex parte Price, 555 So.2d 1060, 1068 (Ala.1989)).

At trial, the employee testified that he had experienced pain in his right knee, right hip, right shoulder, lower back, and neck after having fallen on January 21, 2010, and that his continued, constant pain symptoms in his neck and back had made him unable to resume working afterwards. With respect to the issue of preexisting neck conditions, the employee testified that he had never previously experienced “neck problems” and that he had never seen a physician for a neck problem before the accident. Although the employee did admit on cross-examination that he had reported to medical personnel after a November 2002 motor-vehicle collision that he was experiencing neck pain, the employer did not elicit evidence tending to indicate that the employee had not fully recovered from any injuries suffered in that collision.

The transcripts of the depositions of two of the employee’s treating physicians (Dr. Patton and Dr. Donahoe) and of a physician retained by the employer to examine the employee (Dr. Bendt Petersen) were admitted into evidence. When counsel for the employer asked Dr. Donahoe at his deposition whether he could “form some sort of opinion to a certain degree of medical certainty ... that [the employee’s] current complaints and symptoms are, in fact, the result of’ the January 21, 2010, accident, Dr. Donahoe replied that “the mechanism for [the employee’s] injury that he described to me,” i.e., the workplace fall, was “a mechanism that would make [one’s] neck worse with a pre-existing bad neck ... to a degree of medical certainty”; on cross-examination, Dr. Donahoe flatly opined, “yeah, I think the fall made [the employee’s neck] worse” and further opined, over the employer’s objection, that the fall “at least contributed to the necessity of the surgery” he had recommended for the employee. Dr. Patton testified that a fall such as that suffered by the employee would have “a more substantial impact on a seventy-two year old than a [man of] thirty or forty,” although he deferred to Dr. Donahoe’s opinion regarding whether the employee’s neck problems after the fall were or were not caused or contributed to by the fall. Finally, although Dr. Petersen testified at his deposition on direct examination that it was his opinion that the employee had not suffered a new injury as a result of the fall, he admitted in response to a question posed by counsel for the employee during cross-examination, a question that hypothesized a number of facts from the employee’s prior work history, that the fall “at least contributed to” the employee’s post-fall medical problems.

Thus, we conclude that, although the employee had indeed suffered degenerative stenosis in his neck before the injury, the trial court could properly conclude from substantial evidence, as it did, that that condition had remained latent until the employee’s workplace injury acted to cause the debilitating neck pain necessitating the surgical intervention prescribed by Dr. Donahoe. The trial court, rather than this court, was entitled under the Act to weigh the testimony given by the employee and the treating and examining physicians against the medical records submitted by the employer by which the employer had sought to impeach the employee’s credibility as to the onset of his neck symptoms. Unlike in Ex parte Southern Energy Homes, Inc., 873 So.2d 1116 (Ala.2003), the totality of the testimony of lay and medical witnesses in this case, viewed in a light most favorable to the employee, does not rise simply to the level of a mere “possibility” of medical causation.

For the foregoing reasons, the trial court’s March 22, 2011, order is not due to be disturbed, and we decline to issue a writ of mandamus in this case.

PETITION DENIED.

THOMPSON, P.J., concurs.

BRYAN, THOMAS, and MOORE, JJ., concur in the result, without writings.

      . The defendant business entity named in the original complaint in this case was “Willstaff, Inc.,” a name that was claimed by defense counsel to be a misidentiftcation.


author: THOMPSON, Presiding Judge.

text:
    In re Adoption of K.R.S.
    2110722.
    Court of Civil Appeals of Alabama.
    Oct. 12, 2012.

      Vivian S. Beckerle of Beckerle Law Firm, Mobile, for appellant C.D.S.
   THOMPSON, Presiding Judge.

On December 29, 2011, C.D.S. filed a petition in the Mobile Probate Court (“the probate court”) seeking to adopt K.R.S. (“the.child”) under § 26-10A-27, Ala.Code 1975, a part of the Alabama Adoption Code, § 26-10A-1 et seq., Ala.Code 1975. The probate court requested that C.D.S. file a brief setting forth the applicable law, and it later conducted a hearing. On April 6, 2012, the probate court entered a judgment denying C.D.S.’s request that she be allowed to adopt the child. In reaching its judgment, the probate court determined that, under applicable law, C.D.S. was not a “spouse” of the child’s mother such that she could adopt the child pursuant to § 26-10A-27. C.D.S. timely appealed.

On appeal, C.D.S. contends that the probate court erred in denying her adoption petition. The right of adoption is created by statute, and it is in derogation of the common law. Ex parte D.W., 835 So.2d 186, 190 (Ala.2002). In this case, there are no factual issues; because only a legal issue is implicated, this court must review the probate court’s judgment de novo. Hollis v. Forrester, 914 So.2d 852, 854 (Ala.Civ.App.2004).

C.D.S., a woman, presented evidence indicating that, in 2008, she and the child’s mother were married in California. C.D.S. argues that she is the spouse of the child’s mother and, therefore, that she may adopt the child under § 26-10A-27, which provides that, under certain conditions, “[a]ny person may adopt his or her spouse’s child.” The child’s mother consented to CJD.S.’s adoption of the child in her capacity as the mother’s spouse.

The State of Alabama does not recognize same-sex marriages. Ala. Const, of 1901, Art. I, § 36.03; § 30-1-19, Ala.Code 1975. Section 30-1-19,' known as the “Alabama Marriage Protection Act,” provides that “[mjarriage is inherently a unique relationship between a man and a woman” and that “[a] marriage contracted between individuals of the same sex is invalid in this state.” § 30-l-19(b). In addition, same-sex marriages that are valid in other states are not recognized in Alabama. § 30-1-19(e) (“The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.”).

The Sanctity of Marriage Amendment, set forth in Ala. Const, of 1901, Art I, § 86.03, contains identical provisions to those of the Alabama Marriage Protection Act, and it further provides that Alabama will not recognize a common-law marriage between individuals of the same sex. Ala. Const, of 1901, Art. I, § 36.08(f). Further, as the probate court noted in its judgment, the federal Defense of Marriage Act, 28 U.S.C. § 1738C, provides that no state is required to give effect to a marriage of people of the same sex that is valid in another state. See also 1 U.S.C. § 7 (in interpreting federal law or administrative regulations, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife”).

Thus, under Alabama law, C.D.S.’s marriage to the child’s mother is not recognized, and, therefore, under Alabama law, C.D.S. is not the spouse of the child’s mother. Accordingly, C.D.S. may not adopt the child pursuant to § 26-10A-27, which allows adoptions by a stepparent. Therefore, we conclude that the probate court properly applied the law to the facts of this case in denying C.D.S.’s petition seeking to adopt the child.

On appeal, C.D.S. advances several policy arguments concerning the importance of families in support of her contention that she should be allowed to adopt the child. However, it is clear that, in enacting § 30-1-19, our legislature has rejected those arguments, as has a majority of Alabama voters in approving Ala. Const, of 1901, Art I, § 36.03. See Ala. Const. of 1901, Art. XVIII, § 284 (setting forth the manner in which amendments to the Alabama Constitution are approved).

C.D.S. also contends on appeal that the probate court’s judgment deprives her of certain constitutional rights. However, we conclude that the probate court’s judgment constitutes a proper application of Alabama law. Therefore, C.D.S.’s constitutional challenges should be to the laws she contends deprive her of her constitutional rights. In the probate court, C.D.S. did not seek to have § 30-1-19, Ala.Code 1975, or the Sanctity of Marriage Amendment declared unconstitutional. Therefore, C.D.S. is precluded from raising those issues in this court. “[Ejven constitutional issues may not be raised for the first time on appeal.” D.P. v. Limestone Cnty. Dep’t of Human Res., 28 So.3d 759, 765 (Ala.Civ.App.2009); Godwin v. Davis, 56 So.3d 646, 651 (Ala.Civ.App.2010).

C.D.S. has failed to demonstrate that the probate court erred in reaching its judgment. Therefore, the judgment’ is affirmed.

AFFIRMED.

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

      . The mother did not consent to relinquish her own parental rights to the child so that C.D.S. could adopt the child under any other section of the Alabama Adoption Code. Therefore, C.D.S. could proceed only under § 26-10A-27. See § 26-10A-29(b), Ala.Code 1975 (“Upon the final decree of adoption, the natural parents of the adoptee, except for a natural parent who is the spouse of the adopting parent [,] are relieved of all parental responsibility for the adoptee and will have no parental rights over the adoptee.” (emphasis added)).

      . 1 U.S.C. § 7 has been declared unconstitutional by the United States Court of Appeals for the First Circuit. See Massachusetts v. United States Dep’t of Health & Human Servs., 682 F.3d 1, 2 (1st Cir.2012). That federal authority is not binding on this court, although that authority might be considered persuasive. Glass v. Birmingham Southern R.R., 905 So.2d 789, 794 n. 2 (Ala.2004).


text:
    Patrick HAYNES v. Ashley HAYNES.
    2110584.
    Court of Civil Appeals of Alabama.
    Oct. 12, 2012.

      Jimmy Sandlin, Huntsville, for appellant.
    Heath F. Trousdale, Florence, for appel-lee.
   THOMPSON, Presiding Judge.

Patrick Haynes (“the father”) and Ashley Haynes (“the mother”) were divorced by a September 14, 2010, judgment of the Lauderdale Circuit Court; the divorce judgment incorporated the terms of a settlement agreement reached by the parties. Pursuant to the parties’ settlement agreement, the divorce judgment awarded the mother primary physical custody of the parties’ minor child, who was not yet three years old at the time of the parties’ divorce. The divorce judgment also provided that the father have visitation with the child for one month in the fall and from January 15 through May 15 each year. At the time of the divorce, the father, who is active in the military, was assigned to a military base in Honolulu, Hawaii.

On December 3, 2010, the mother filed a petition to modify the visitation provisions of the divorce judgment; in her petition, the mother alleged that the child had experienced difficulties with the visitation arrangement. The father responded by filing a counterclaim seeking a modification of custody of the child.

The trial court conducted an ore tenus hearing. On October 17, 2011, the trial court entered a judgment in which it, among other things, made findings of fact, denied the father’s claim seeking a modification of custody, and granted the mother’s claim seeking a modification of visitation; the trial court awarded the father a standard schedule of alternating weekend visitation. On November 4, 2011, the father filed a postjudgment motion. The father timely appealed after the denial by operation of law of his postjudgment motion.

The evidence presented by the parties at the ore tenus hearing reveals the following pertinent facts. The father is a member of the military. At the time of the hearing in this matter, the father had been stationed at a military base in Hawaii for three years and was completing that assignment. The parties did not dispute that the existing visitation provision of the divorce judgment would no longer be necessary because the father planned to move from Hawaii to a location much closer to the mother’s home in Alabama. The father disputed the mother’s evidence pertaining to whether the child had experienced difficulties with regard to the visitation schedule.

The father testified that he was to be transferred to another military base shortly after the hearing and that he had requested that he be transferred to Birmingham or to Knoxville or Memphis, Tennessee. The father explained that he expected to be transferred to either Birmingham or Knoxville because, he said, the military usually assigned a service member to his or her first or second choice. The father testified that, in anticipation of the trial court’s granting his petition to modify custody of the child, he had investigated schools in both Birmingham and Knoxville.

The parties presented some evidence regarding disputes that arose regarding visitation after the entry of the September 14, 2010, divorce judgment. The parties’ differing testimony on the facts pertaining to that issue are not relevant to the issues on appeal.

The majority of the evidence pertained to the father’s claim seeking to modify custody of the child. The father testified regarding his military career, and he presented evidence indicating that he expected to continue in his job as a planning officer for an engineering division. The father testified that, in that job, he could properly take care of the child.

The father also testified that he was engaged to be married. The father had been engaged to another woman the year before, but that relationship had ended. The father testified that he had known his fiancé for a number of years and that she had moved to Hawaii to be the child’s nanny during his custodial period in the spring of 2011. The father stated that his romantic relationship with his fiancé began after her move to Hawaii.

The mother and the child live with the mother’s parents in Lauderdale County. The mother testified that when the child was on his extended spring visit with the father in Hawaii, she attended a local community college and worked in her father’s business. At the time of the hearing, the mother was not working or enrolled in school, but she testified that she planned to register for classes in the spring of 2012.

The father alleged that the mother could not properly care for the child because, he said, she was using illegal drugs. The father testified that the mother had been in a drug-rehabilitation program on two occasions during the parties’ marriage. It is undisputed that the mother completed the second drug-rehabilitation program in June 2008, two years before the parties divorced, and that she was treated in that program for an addiction to cocaine.

The father testified that he suspected that the mother had used alcohol or drugs since the parties’ divorce, but that he had no direct knowledge of such usage because, he explained, he refused to have any contact with her. The father testified that he does not speak to the mother and that when he assists the child in telephoning the mother, he dials the telephone number and then hands the telephone directly to the child.

The mother testified that she had not used cocaine since her completion of the second drug-rehabilitation program, that she attended Alcoholics Anonymous meetings approximately once each month, and that she maintained regular contact with her sponsor. The mother admitted that, in August 2011, shortly before the hearing in this matter, she tested positive for the use of marijuana. The mother testified that she had used a small amount of that drug at a party and that the decision to do so was “dumb.” The mother testified that she had not used any other illegal drugs since her completion of the drug-rehabilitation program in 2008 and that she would be willing to submit to drug testing at her own expense.

With regard to drinking alcohol, the mother testified on cross-examination that since completing the second drug-rehabilitation program, she had had “maybe one or two beers.” The father then immediately questioned the mother as to whether she had been intoxicated during the night “of this alleged rape.” It is clear from the transcript that the parties and the trial court were aware of the “alleged rape” incident and that it occurred sometime after the mother had completed the second drug-rehabilitation program but before the parties had divorced. The trial court rejected the father’s attempts to present evidence regarding that incident, and, therefore, the record contains no evidence regarding it. Before excluding that evidence, the trial court confirmed that the mother was conceding that she had consumed alcohol on the night of that incident. Also on questioning from the trial court, the mother stated that she had not consumed alcohol since the night of the alleged rape incident.

In its judgment, the trial court concluded that the mother had demonstrated a substantial change "of circumstances warranting a change in the visitation award. The trial court determined, however, that no material change in circumstances had occurred that warranted a change in the primary physical custody of the child, and, therefore, it denied the father’s claim seeking a custody modification.

The father argues on appeal that the trial court erred in excluding certain evidence. The father contends that the trial court excluded that evidence because, he asserts, it erroneously concluded that it could not consider evidence pertinent to the time before the parties divorced. In his brief on appeal, the father cites one appellate case, Blume v. Durrett, 703 So.2d 986, 988 (Ala.Civ.App.1997), for the proposition that when the trial court does not hear evidence on the issue of custody, but, rather, the parties reach a settlement agreement that is incorporated into a divorce judgment, the court may consider the parties’ predivorce conduct in a custody-modification action. This court has explained that “facts existing at the time of the original divorce [judgment] but not disclosed at that time may be considered by the court in a subsequent [custody] modification proceeding, even though these facts do not relate to a change of circumstances subsequent to the original divorce ^judgment].” Wilson v. Wilson, 408 So.2d 114, 116 (Ala.Civ.App.1981).

The trial court expressly stated that it was aware of the precedent allowing it to consider the parties’ predivorce conduct under the facts of this case. However, as the father points out, the trial court excluded certain evidence even in light of that precedent. As is explained below, we cannot hold that, under the facts of this case, the trial court erred in doing so.

With regard to this issue, the father first takes issue with the trial court’s exclusion of his evidence concerning the circumstances of the alleged rape incident. In his brief on appeal, the father makes a few representations about that incident, but, as already indicated in this opinion, the record contains no evidence pertaining to that incident. The father requested that he be allowed to make an offer of proof about the “circumstances surrounding” that incident, and the trial court indicated that it did not want to get into the details of that incident. The father requested and was granted the opportunity to make an offer of proof regarding the evidence he wanted to present. See Wright v. Wright, 19 So.3d 901, 910 (Ala.Civ.App.2009) (Generally, in order to preserve an objection to the exclusion of evidence, the party must demonstrate what the evidence, if admitted, would have shown.). However, the father then proceeded to argue the admissibility of the evidence, and he never made the required offer of proof.

We note that there is an exception to the requirement that an offer of proof be made when it is clear that the “ ‘trial court is fully aware of the nature of the testimony’ ” to be offered or that the relevancy of the testimony is self-evident. Hennis v. Hennis, 977 So.2d 520, 526-27 (Ala.Civ.App.2007)(quoting Kilcrease v. John Deere Indus. Equip. Co., 663 So.2d 900, 902 (Ala.1995)). The father has not argued on appeal that this evidence is admissible under either of those grounds. Out of an abundance of caution, however, we note that the father argued to the trial court that the relevance of the testimony he wanted to present was to impeach the mother’s credibility concerning her use of alcohol or drugs on the night of the alleged rape incident; the father argued that the mother had represented that she had not used drugs or alcohol since her completion of the drug-rehabilitation program in 2008. Assuming, without deciding, that the trial court was aware of the nature of the evidence the father wanted to present, as is explained below, we still cannot conclude that the father has demonstrated that the trial court erred to reversal in excluding that evidence.

First, the trial court briefly questioned the mother to confirm that she conceded that she had used alcohol on the night of the alleged rape incident and that it had played a role in the manner in which the events of that night unfolded. Thus, there was no factual dispute regarding the mother’s use of alcohol on the night of that incident. The trial court asked the father if he had evidence indicating that the mother had used alcohol on any other occasion after 2008, but the father did not and does not assert that his witnesses could testify to the mother’s drug or alcohol use on any occasion other than the one involving the alleged rape incident. Thus, the evidence the father was attempting to present through several witnesses regarding that incident was cumulative of the mother’s concession that she had consumed alcohol at the time of that incident. Wilson v. Wilson, 93 So.3d 122, 131 (Ala.Civ.App.2012) (The exclusion of admissible evidence is not reversible error when that evidence is cumulative of other evidence.).

Also, the trial court expressed a disinclination to require the mother to testify regarding an alleged rape. The father has not argued to this court any basis, other than purportedly impeaching the mother’s credibility about her use of alcohol that night, for allowing testimony regarding the circumstances of such a sensitive subject. This court has stated:

“Of course, a trial court may limit cross-examination ‘that is repetitious, irrelevant, harassing, annoying, or humiliating, or concerns wholly collateral matters.’ Riley v. City of Huntsville, 379 So.2d 557, 560 (Ala.1980). We note that ‘[t]he usual discretion vested in the trial court to control the extent of cross-examination is narrowed in proportion to the extent of the adverseness of the testimony of the witness and the value to the defendant of a disaccreditation of the witness.’ Hendrick v. State, 368 So.2d 576, 578 (Ala.Crim.App.1979).”

Wilson v. Wilson, 93 So.3d at 130. The trial court recognized the sensitive nature of the subject matter upon which the father wanted to present the testimony of several witnesses as an attempt to present evidence of the mother’s alcohol use on the night of the alleged rape incident. It determined that, given the mother’s stipulation that she had consumed alcohol that night, there was little value to the father in doing so. We cannot say that the father has demonstrated that the trial court erred in excluding that evidence.

The father also argues that the trial court should have allowed him to present evidence regarding the mother’s predi-vorce drug use. The father is correct that, under Blume v. Durrett, supra, the evidence he attempted to proffer was admissible. However, as already stated in this opinion, evidence that is admissible may be properly excluded when that evidence is cumulative. Wilson v. Wilson, supra. During the arguments of the parties on this issue, the trial court noted that it was undisputed that the mother had used illegal drugs during the parties’ marriage, that she had completed two drug-rehabilitation programs by 2008, and that the mother had consumed alcohol on the night of the alleged rape incident. The trial court verified that the father knew about all of that evidence at the time he entered into the agreement for the mother to maintain primary physical custody of the child. The trial court noted that, except her purported one-time use of marijuana during the pendency of this litigation, the mother disputed using illegal drugs or alcohol after the night of the alleged rape incident. The trial court inquired whether the father had any witnesses or evidence available tending to indicate that the mother had used alcohol or drugs since that time. The father did not present any such evidence. The trial court stated that it wanted to focus on any changes that would constitute material changes in circumstances since the parties’ divorce.

“[T]his Court will not reverse a trial court’s refusal to admit otherwise admissible evidence if the same facts are shown at trial by other means. In short, a trial court’s failure to admit cumulative evidence is merely harmless error.” City of Gulf Shores v. Harbert Int’l, 608 So.2d 348, 354 (Ala.1992). Further, “[t]he law is well settled that the ‘trial court has wide discretion to determine whether evidence is relevant, material, or remote.’ Gober v. Khalaf 628 So.2d 416, 417 (Ala.1993).” Taylor v. Hogan, 673 So.2d 453, 455 (Ala.Civ.App.1996). In this case, the mother’s predivorce conduct was shown in her own testimony and in some evidence presented by the father. The father clearly wanted to present additional evidence on that issue, but the trial court focused the evidence it would receive on whether circumstances had changed since the divorce that warranted a change in custody. We cannot say that the father has demonstrated that the additional evidence he sought to have admitted was so material or relevant to the custody-modification action that its exclusion constituted reversible error under the facts of this case.

The father also argues that the evidence does not support the denial of his custody-modification claim. The divorce judgment awarded the mother primary physical custody of the child, and, therefore, in order to modify that custody arrangement, the father was required to meet the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984). Under that standard, the father was required to present evidence demonstrating that a change in custody would materially promote the child’s welfare and that the disruption caused by the change in custody would be offset by the advantages of that custody change. Ex parte McLendon, supra.

In his brief on appeal, the father identifies only two factual issues that he says support a custody modification. First, the father argues that the evidence indicates that the mother has not stopped using illegal drugs. He cites the mother’s positive drug test for marijuana during the pendency of this action and several references to drinking that the mother made on a social-media page. Those facts are a matter of concern. However, the mother testified that she had used marijuana once at a party and that it was a bad decision. The mother insisted that, other than that occasion, she had not used drugs or alcohol since the alleged rape incident, and there is no evidence in the record to dispute that testimony. The mother also assured the trial court that she would be willing to submit to random drug testing at her own expense.

In addition, the father also alleges that custody should be modified because, he says, the mother accused her father of sexually abusing her. The mother testified that in 2008, during her participation in her second drug-rehabilitation program, she felt pressured to identify a reason she had used illegal drugs and that, as a result, she had included in her rehabilitation diary letters accusing her father of molesting her as a child. However, the mother testified that the allegations were not true and that she had not sent those letters or mentioned the allegations to her mother or her father. Although the father, in his brief on appeal, does not find the mother’s explanation of those diary entries credible, the trial court, as the trier of fact, was in the best position to observe the parties and witnesses as they testified and to draw conclusions regarding their credibility from those observations. See, e.g., Bunn v. Bunn, 628 So.2d 695, 697 (Ala.Civ.App.1993) (“In determining the weight to be accorded testimony, the trial court, as sole judge of the credibility of witnesses, considers the demeanor and apparent candor or evasiveness of the witnesses, and the trial court may disbelieve and disregard portions of testimony and should accept only that testimony it considers worthy of belief.”).

The mother presented evidence indicating that the child was doing well in the home she and the child shared with her parents. The father presented evidence indicating that the child liked his fiancé and that he and his fiancé could properly care for the child if he were awarded custody. The vast majority of the remainder of the evidence pertained to the father’s allegations regarding the mother’s conduct. The record does not contain evidence tending to indicate that a change in custody would materially promote the child’s best interests. McLendon, supra.

Our supreme court has stated that an appellate court’s review of a factual issue in a custody-modification action is limited and that this court may not substitute its judgment for that of the trial court or reweigh the evidence. Ex parte Patronas, 693 So.2d 473, 474-75 (Ala.1997). The presumption in favor of the trial court’s judgment in a custody-modification action is based on the advantage that the trial court has of seeing the parties and witnesses as they testify. Thus,

“[t]his case, like all disputed custody cases, turns on the trial court’s perception of the evidence. The trial court is in the better position to evaluate the credibility of the witnesses ... and the trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody.”

Ex parte Bryowsky, 676 So.2d 1322, 1326 (Ala.1996).

This court has carefully considered the evidence and the arguments of the parties, especially in light of the evidence concerning the mother’s use of an illegal drug during the pendency of this custody action. It is clear that each of the parties loves the child and wants the child to be happy. The trial court, after receiving testimony, determined that the evidence the parties presented did not warrant a modification of custody. Given the evidence in the record on appeal and the presumption in favor of the trial court’s resolution of the factual issues, we cannot say that the father has demonstrated that the trial court erred in determining that he had not met the Ex parte McLendon standard and, therefore, in denying his claim seeking to modify custody of the child.

The father last argues that the trial court’s judgment is “impracticable” and should be set aside pursuant to Rule 60(b)(2), Ala. R. Civ. P. The father argues that, after the hearing in this matter, he discovered that he had not been assigned to either of the cities to which he had told the trial court he would be transferred. Rather, he represents in his brief that he now resides in Atlanta and that the distance for him to travel to exercise the trial court’s visitation award is farther away than he had anticipated. The father also represents that the trial court failed to address this issue when he purportedly raised it in a postjudgment motion and that that motion was purportedly denied by operation of law.

The record indicates that on February 13, 2012, the father filed a motion, purportedly pursuant to Rule 59, Ala. R. Civ. P., and “Rule 60(b)[, Ala. R. Civ. P.,]” titled “amended motion to alter, amend, or vacate judgment, or in alternative, new trial.” In that motion, the father stated that he lived in Atlanta, and he requested that the trial court order that his mother be allowed to pick up the child for the alternating-weekend visitation awarded in the October 17, 2011, judgment. The father did not seek the relief he seeks on appeal, i.e., that the visitation provision be set aside. Further, the father did not seek that relief in a later “amendment” to the post-judgment motion filed on March 1, 2012.

Further, the February 13, 2012, “amended” motion was filed far in excess of the 30 days allowed by Rule 59(e), Ala. R. Civ. P., to seek the modification of a judgment. The father’s original, November 4, 2011, postjudgment motion was denied by operation of law on February 2, 2012. Thus, the trial court lost jurisdiction after that date to modify its judgment and could not have properly subsequently ruled on any purported “amendments” to the timely filed postjudgment motion. Weaver v. Weaver, 4 So.3d 1171, 1174 (Ala.Civ.App.2008).

The father briefly asserts on appeal that he sought relief under Rule 60(b)(2), Ala. R. Civ. P., which allows relief from a judgment in certain circumstances when evidence is newly discovered. We need not determine whether the father’s motion was, in substance, a Rule 60(b) motion. See Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d 1281, 1282 (Ala.1996) (the substance, rather than the title, of a motion governs the nature of the motion). Even assuming that that motion was made pursuant to Rule 60(b), the trial court has not ruled on that motion, and there is no final order from which to appeal. Rhodes v. Rhodes, 38 So.3d 54, 63 (Ala.Civ.App.2009). Thus, for the reasons set out in this opinion, the trial court’s judgment is affirmed.

AFFIRMED.

PITTMAN, J., concurs.

BRYAN, THOMAS, and MOORE, JJ., concur in the result, without writings.

      . As is explained later in this opinion, at the hearing the father presented evidence indicating that he planned to move from Hawaii to Alabama or Tennessee.

      . The father later filed what he characterized as “amendments" to that timely postjudgment motion; those filings were made on February 13, 2012, and March 1, 2012. Those "amended” motions were filed outside the 90 days allowed by Rule 59.1, Ala. R. Civ. P., for the trial court to rule on the father's timely, November 4, 2011, postjudgment motion.

      . We also note that the father, for the first time on appeal, argues that the Child Custody or Domestic or Family Abuse Act, § 30-3-130 et seq., Ala.Code 1975, applies and that, under that act, there is a presumption that custody should not be awarded to the mother because she lives with her father; the father bases that argument on what he characterizes as the mother’s accusations of abuse against her father. See § 30-3-131, Ala.Code 1975 ("In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebutta-ble presumption by the court that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of domestic or family violence."). This issue may not be raised for the first time on appeal.


text:
    CITY OF MOBILE and Mobile City Planning Commission v. Jeffrey GRIZZARD and Phil Gabriel. Roland Francis Properties, LLC v. Jeffrey Grizzard and Phil Gabriel.
    2110169 and 2110170.
    Court of Civil Appeals of Alabama.
    Oct. 12, 2012.

      John L. Lawler, Mobile, for appellants City of Mobile and Mobile City Planning Commission.
    Douglas L. Anderson and Michael D. Strasavich of Burr & Forman LLP, Mobile, for appellant Roland Francis Properties, LLC.
    Donald G. Beebe of The Atchison Firm, P.C., Mobile, for appellees.
   PITTMAN, Judge.

In September 2010, Roland Francis Properties, LLC (“RFP”), applied to the Mobile City Planning Commission (“the Commission”) for approval of a Planned Unit Development (“PUD”) in order to build an apartment complex in Mobile. The Commission approved RFP’s application in October 2010. Neighboring property owners, Jeffrey Grizzard and Phil Gabriel (“the PUD opponents”), appealed from the Commission’s decision to the Mobile City Council, which upheld the Commission’s action on November 8, 2010. On November 16, 2010, the PUD opponents filed in the Mobile Circuit Court a complaint seeking a judgment declaring that the Commission’s approval of RFP’s application was in violation of § 64-5, Mobile City Code, and requesting injunctive relief to halt the PUD.

The case came before the circuit court for a bench trial 10 months later, in September 2011. In the meantime, construction on the PUD project had begun in December 2010 and was more than two-thirds complete at the time of trial. On October 4, 2011, the circuit court entered a judgment voiding the Commission’s approval of the PUD application on the ground that such approval violated § 64-5 and thereby denied the PUD opponents due process of law. In addition, the circuit court invalidated the construction permits that had been issued to RFP and issued a stop-work order.

On October 10, 2011, RFP moved the circuit court to issue an immediate stay of enforcement of its October 4, 2011, judgment. The City of Mobile and the Commission (“the municipal parties”) joined that motion. On November 3, 2011, RFP and the municipal parties filed separate appeals to the supreme court from the circuit court’s judgment. When the circuit court denied their requests for a stay, RFP and the municipal parties sought a stay in the supreme court on November 9, 2011. The supreme court consolidated the appeals and transferred them, along with the motions for a stay, to this court pursuant to § 12-2-7(6), Ala.Code 1975, on November 10, 2011. On November 29, 2011, this court granted the motions for a stay pending further order of this court.

Standard of Review

“[T]he construction of a [municipal] ordinance is a question of law.” Burnham v. City of Mobile, 277 Ala. 659, 661, 174 So.2d 301, 302 (1965) (citing 8 McQuillin, The Law of Municipal Corporations § 25.71). “The trial court’s interpretation of the provisions of ... an ordinance is a determination of law, which is not entitled to a presumption of correctness on appeal.” Studio 205, Inc. v. City of Brewton, 967 So.2d 86, 87 (Ala.2007) (citing Clark v. Houston Cnty. Comm’n, 507 So.2d 902, 903 (Ala.1987)).

Discussion

Section 64-5 of the Mobile Municipal Code deals with PUDs. Paragraph A sets out the purposes and objectives of a PUD:

“1. Purposes. Under the regulations prescribed by this chapter for the various districts, a separate building site is required for each building other than an accessory building. For the purpose of allowing and encouraging variety of design and flexibility of location for buildings comprising a planned unit development (PUD) under this section, the requirement for a separate building site for each building is waived and the land occupied by the planned unit development is considered to be the building site for the group of buildings as a whole.
“It is the further purpose of this section to encourage the unified development of tracts of land that are suitable in size, location, and character for the uses and buildings proposed. To that end, the application of the district regulations governing development on a lot-by-lot basis is modified for planned unit developments, hereinafter called PUDs, that meet the objectives and conform to the standards of this section.
“Although PUDs are most commonly multiple-family residential projects, such other building groups as shopping centers and industrial parks, as well as one-family residential projects using innovative building types and arrangements, may be designed and developed under this section.
“2. Objectives. In pursuit of these purposes, the objectives to be met by a PUD are as follows:
“a. Creative design. To encourage innovative’ and diversified design in building form and site development;
“b. Flexibility. To permit greater flexibility in the location and arrangement of buildings and uses than is generally possible under district regulations;
“c. Efficient land use. To encourage the most efficient and sustainable use of land, especially tracts in the inner part of the city that remain undeveloped or that are appropriate for redevelopment;
“d. Environment. To preserve and protect as urban amenities the natural features and characteristics of the land;
“e. Open space. To encourage the provision of common open space through efficient site design;
“f. Public services. To encourage optimum use of available public utilities, streets and community facilities.”

Paragraph B of § 64-5 sets out the modifications and limitations to which a PUD is subject. “Modifications” encompass matters such as permitted uses and residential building types within various zoning classifications, as well as building-site area and yard requirements. Under “Limitations” the following appears:

“2. Limitations. Planned unit developments shall be subject to the following limitations:
“a. Size of tract. The tract of land to be occupied by the PUD shall be of sufficient size to accommodate the proposed uses and buildings in a homogeneous and harmonious entity (as distinguished from typical lot-by-lot development).
“b. Public services. No PUD shall be approved unless the planning commission determines, upon advice of the appropriate authorities, that the water, sanitary and drainage facilities, access streets and fire protection are adequate to meet the demands of the PUD.”

(Emphasis added.) All parties agreed that Knollwood Drive, the access road leading to the PUD, was inadequate to meet the demands of the PUD. Despite the emphasized language in ¶ B.2.b. of § 64-5 — that “[n]o PUD shall be approved unless the planning commission determines ... that the ... access streets ... are adequate to meet the demands of the PUD” — the Commission approved the PUD application on the condition that RFP make improvements to the access road, without which no certificate of occupancy would be issued. Deputy Director of City Planning Richard Olsen testified that, during his 24 years of employment with the City, it had been the practice of the Commission to approve PUD applications “subject to” certain conditions. That practice, Olsen said, had been based upon ¶ D.2.c. of § 64-5, which provides:

“Action on development plan. Within a reasonable time, the planning commission shall approve, approve with modifications and/or conditions, or disapprove the development plan. If approval of the development plan stipulates modifications or conditions, such modifications or conditions shall be illustrated on the development plan prior to its submittal for permitting.”

(Emphasis added.) Further, Olsen said, the municipal parties had consistently interpreted the pertinent provisions of § 64-5 to allow the satisfaction of conditional items to “proceed at the same time as construction of the project itself,” rather than to require that conditional items be completed before construction of a proposed project. In fact, Olsen acknowledged that some items listed in ¶ B.2.b. as “public services,” such as fire protection, can only be accomplished contemporaneously with the project itself. RFP and the municipal parties contend that the PUD opponents’ interpretation of ¶ B.2.b. ignores the financial reality that no developer would be willing to undertake the estimated $300,000 in improvements to the access road without first having a PUD approval in hand.

The PUD opponents argued in the circuit court and continue to maintain on appeal that, pursuant to ¶ B.2.b., necessary improvements to the access road were required to be made before the PUD application was approved and that the Commission exceeded its authority by conditionally approving the application when the access road was demonstrably inadequate.

We are therefore required to determine whether ¶ B.2.b., specifically the adequate-access-street provision of that paragraph, states a sine qua non requirement for approval of a PUD application or whether the adequate-access-street provision of ¶ B.2.b. can be the subject of an “approval with conditions” pursuant to ¶ D.2.c.

“City ordinances are subject to the same general rules of construction, as are acts of the Legislature. S & S Distrib. Co. v. Town of New Hope, 334 So.2d 905 (Ala.1976). In John Deere Co. v. Gamble, 523 So.2d 95, 99-100 (Ala.1988), [our supreme court], quoting Clark v. Houston County Comm’n, 507 So.2d 902, 903-04 (Ala.1987), set out the following general rules of statutory construction, which also apply to the construction of municipal ordinances:
“ ‘ “The fundamental rule of statutory construction is to ascertain and give effect to the intent of the [city council] in enacting the [ordinance]. Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985); League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). If possible, the intent of the [city council] should be gathered from the language of the [ordinance] itself. Advertiser Co. v. Hobbie, supra; Morgan County Board of Education v. Alabama Public School & College Authority, 362 So.2d 850 (Ala.1978). If the [ordinance] is ambiguous or uncertain, the court may consider conditions which might arise under the provisions of the [ordinance] and examine results that will flow from giving the language in question one particular meaning rather than another. Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978); League of Women Voters v. Renfro, supra.” ’ ”

Ex parte City of Orange Beach Bd. of Adjustment, 833 So.2d 51, 55-56 (Ala.2001). “When interpreting an ordinance, each word or phrase must be given meaning so that no part is rendered void, superfluous, contradictory, or insignificant. Ordinances should be read in pari materia when relevant.” 1A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 30:6 (7th ed.2009) (footnotes omitted). “[T]he whole [ordinance] under construction should be examined and, if possible, each section should be given effect.” Employees’ Ret. Sys. of Alabama v. Head, 369 So.2d 1227, 1228 (Ala.1979). “ ‘ “ ‘There is a presumption that every word, sentence, or provision [of an ordinance] was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.’ ” ’ ” Surtees v. VFJ Ventures, Inc., 8 So.3d 950, 970 (Ala.Civ.App.2008) (quoting Ex parte Uniroyal Tire Co., 779 So.2d 227, 236 (Ala.2000), quoting in turn Sheffield v. State, 708 So.2d 899, 909 (Ala.Crim.App.1997)). “Instead of taking one isolated and narrowly construed sentence of [a section in an ordinance], we should look to the entire framework of the [ordinance], the intents and purposes of the [ordinance] and the means by which it has been given construction, effect and operation during its years of existence.” Jordan v. City of Mobile, 260 Ala. 393, 401, 71 So.2d 513, 520 (1954).

Application of the foregoing principles of construction leads us to the conclusion that the PUD opponents’ interpretation of ¶ B.2.b. is impermissibly narrow and constrained. Their interpretation ignores the intent of the city council, as gathered from the language of the ordinance, specifically ¶A.1 (“to encourage the unified development of [PUDS] ”), and ¶^2£ (“[t]o encourage optimum use of available public utilities, streets and community facilities”). The interpretation advocated by the PUD opponents also disregards the results that likely will flow from giving ¶B.2.b. the meaning they suggest. As the Commission implicitly recognized in approving the PUD application conditioned' on later improvement of the access road, to construe ¶B.2.b. as the PUD opponents propose would actually discourage PUDs because few developers would undertake costly off-site improvements without the assurance that their PUD proposal had been approved. Finally, and most importantly, the reading of ¶ B.2.b. advocated by the PUD opponents leaves no room for the operation of ¶ D.2.C., a provision of the Mobile City Code that, the evidence indicated, the Commission had relied upon for decades without challenge. “Instead of taking one isolated and narrowly construed sentence of [¶ B.2.b.], we should look to the entire framework of [§ 64-5], the intents and purposes of [¶ D.2.C.] and the means by which it has been given construction, effect and operation during its years of existence.” Jordan, 260 Ala. at 401, 71 So.2d at 520.

The interpretation of ¶ B.2.b. advanced by the PUD opponents is not only inconsistent with well-established principles of statutory construction, it is also unsupported by City of Tuscaloosa v. Bryan, 505 So.2d 330 (Ala.1987), the primary authority the PUD opponents cite in defense of their reading of the ordinance. The PUD opponents interpret ¶ B.2.b. as a limitation on the Commission’s administrative power to approve a PUD application. The circuit court evidently agreed, because its judgment quoted the following statement by the Bryan court: “[0]rdinances regulating PUDs are intended to protect neighboring property owners by setting out specific prerequisites which must be met by applicants prior to approval.” 505 So.2d at 336 (emphasis added).

Presumably, the circuit court analogized the “specific prerequisite” that had not been met prior to the approval of the PUD in Bryan to the access-road improvement that had not been accomplished by RFP in the present case. Bryan, however, is distinguishable because it addressed a completely different question from the question presented here: whether a municipality had violated its own zoning ordinance when it approved a PUD that did not substantially comply with the requirements of that zoning ordinance. The “specific prerequisite” that had not been met in Bryan, therefore, was compliance with another ordinance, specifically, a zoning ordinance, without which the municipality had no authority to approve the PUD. In Bryan our supreme court stated:

“Notwithstanding its flexibility, a PUD must still fit into a municipality’s comprehensive zoning plan. Clearly, ordinances regulating PUDs are intended to protect neighboring property owners by setting out specific prerequisites which must be met by applicants prior to approval. Compliance with these prerequisites serves to insure that a PUD, as proposed, will fit into the municipality’s existing comprehensive zoning plan. Therefore, there must be compliance with the ordinance. 82 Am.Jur.2d Zoning and Planning, [§ 106 (1976) ].”

505 So.2d at 336 (emphasis added). The quote from Bryan that appears in the circuit court’s judgment and that is emphasized above is an abbreviated version of our supreme court’s holding taken out of context from the passage in which it appears.

In contrast to the situation in Bryan, the “specific prerequisite” that RFP had not met when its PUD application was approved — the access-road improvement— was not a sine qua non requirement for approval of RFP’s application and did not deprive the Commission of the authority to approve the PUD. That is so precisely because ¶ D.2.c. authorized the Commission to approve the project “with conditions.”

In Boulder Corp. v. Vann, 345 So.2d 272, 275 (Ala.1977), our supreme court stated that, “[i]n exercising its function approving or disapproving any [PUD], the Commission acts in an administrative capacity, and is bound by any limitations on its authority contained in the legislation authorizing it to act.” Because ¶ D.2.c. broadens rather than limits the authority of the Commission to approve a PUD by allowing an approval “with conditions,” ¶ D.2.c. must be read in pari materia with ¶ B.2.b. to the end that each provision is “given meaning so that no part [of § 64-5] is rendered void, superfluous, contradictory, or insignificant.” 1A Singer & Singer, Sutherland Statutes and Statutory Construction § 30:6.

Because the circuit court’s construction of the PUD ordinance erroneously overlooked the effect of ¶ D.2.C., a provision that expressly allows approval of a PUD application “with conditions,” its judgment is reversed and the cause is remanded. Our disposition of these appeals renders the previously imposed stay of the circuit court’s judgment moot.

2110169 — REVERSED AND REMANDED.

2110170 — REVERSED AND REMANDED.

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

      . RFP points out in its appellate brief that, after the entry of the circuit court’s judgment in this case, the City amended ¶ B.2.b. on January 10, 2012, to read as follows:
      "B. Modifications and limitations.

      "2. Limitations. Planned unit developments shall be subject to following limitations:
      "b. Public services. No PUD shall be approved unless the planning commission determines, upon advice of the appropriate authorities, that the water, sanitary and drainage facilities, access streets and fire protection are adequate to meet the demands of the PUD.
      "Provided, however, that the planning commission may approve a PUD prior to construction of such facilities, access streets and fire protection as recommended by the appropriate authorities to meet the demands of the PUD, if the planning commission specifies the completion of such recommended improvements prior to the issuance of a Certificate of Occupancy as a condition of the PUD approval.
      "II. REPEAL OF CONFLICTING ORDINANCE.
      “All Ordinances or parts of Ordinances in conflict with the provisions of this Ordinance, insofar as they conflict, are hereby repealed.”
      A popular treatise states:
      “An amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act, where the amendment was adopted soon after the controversy arose concerning the proper interpretation of the statute. This has led courts to logically conclude that an amendment was adopted to make plain what the legislation had been all along from the time of the statute’s original enactment.”
      1A Singer & Singer, Sutherland Statutes and Statutory Construction § 22:31 (footnotes omitted).