author: MURDOCK, Justice. MAIN, Justice

text:
    Ex parte BASF CONSTRUCTION CHEMICALS, LLC (In re Jeannie West Crabtree and Edward Wayne Crabtree v. BASF Building Systems, LLC).
    1101204.
    Supreme Court of Alabama.
    Dec. 30, 2013.

      James B. Newman of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile; and D. Andy Stivender, Auburn, for petitioner.
    John R. Spencer, Mobile; and C.S. Chie-palich, Mobile, for respondents.

      .Justice Bryan was a member of the Court of Civil Appeals when that court considered this case.

   MURDOCK, Justice.

We granted the petition for a writ of certiorari of BASF Construction Chemicals, LLC (“BASF”), in this action filed by Edward Wayne Crabtree and Jeannie West Crabtree to consider several issues raised by BASF regarding the decision of the Court of Civil Appeals to reverse the trial court’s summary judgment in favor of BASF as to the Crabtrees’ claims against BASF. We reverse the judgment of the Court of Civil Appeals.

7. Facts and Procedural History

Edward Crabtree slipped and fell on the top floor of the physician’s parking deck of a medical center owned by Mobile Infirmary Associates d/b/a Mobile Infirmary Medical Center (“Mobile Infirmary”), and he suffered injuries as a result. The Crab-trees commenced this action, naming as defendants in the lawsuit Mobile Infirmary and fictitiously named parties “B,” “C,” “D,” “E,” and “F.” Eventually, BASF was one of the parties the Crabtrees substituted for a fictitiously named defendant in an amended complaint. The Crabtrees contend that BASF is liable for Edward Crab-tree’s fall because a polyurethane product called Sonoguard, which was manufactured by BASF’s predecessor ChemRex, Inc. (“ChemRex”), which BASF acquired after the events underlying the Crabtrees’ action, was improperly installed on the floor of the parking deck where Edward Crab-tree fell and sustained his injuries.

According to the manufacturer’s instructions, Sonoguard requires proper installation in order to perform as intended. Installation of the product first requires preparation of the surface area to which it will be applied. Following preparation, a “base coat” layer is applied to provide the waterproofing effect. After the base-coat layer has cured, a second “topcoat” layer is applied in varying amounts based on the amount of vehicular traffic to which the surface will be subjected. While the topcoat layer is wet, aggregate (i.e., silica sand) is broadcast over the material to provide slip resistance. To facilitate a proper application of these three layers, the manufacturer’s instructions recommend that the installer first perform a “mock-up,” i.e., an installation of the product over a smaller area to “allow for evaluation of slip resistance and appearance of the deck coating system.”

BASF employees confirmed in their deposition testimony that the proper application of Sonoguard requires a sufficient amount of aggregate. BASF Senior Technical Product Specialist Allan Mosloski testified that Sonoguard can be slippery “if you don’t get the right amount of aggregate in [it]” and that that is a “relatively common thing” to occur in its installation. BASF Mississippi/Louisiana Territory Manager Roger Sosa testified that Sono-guard is “absolutely” slippery if it lacks aggregate. BASF Alabama Territory Manager David Cook also testified that if the topcoat is too thick it will cover the aggregate and render the surface slippery.

The Mobile Infirmary campus has two public parking decks. The first is a two-story parking deck located immediately in front of the hospital (“Deck I”). The second is a four-story parking deck adjacent to the Physician’s Office Building (“Deck II”). Edward Crabtree slipped and fell on the top floor of Deck II. The Crabtrees contend, however, that events relating to the renovation of Deck I explain in part the reason that BASF should be held responsible for the installation of its product on the top floor of Deck II.

In 2002, Mobile Infirmary engaged the services of J.F. Pate and Associates Contractors, Inc. (“J.F. Pate”), as a general contractor to renovate Deck I. J.F. Pate, in turn, engaged the services of CHP Industrial and Marine, Inc. (“CHP”), as a subcontractor to waterproof the top floor of Deck I and a portion of the ramp leading up to the top floor. CHP purchased the Sonoguard applied on Deck I from a Mississippi supplier. Within a few weeks of CHP’s installation of the product, Mobile Infirmary began receiving complaints that the Sonoguard was wearing out. Roger Sosa, at that time ChemRex’s Mississippi/Louisiana Territory Manager, was notified of the problems. In an April 28, 2002, letter to his superior, Sosa related what he believed to be the causes of the problems based upon what he had been told, including that “[t]he contractor must have shot blasted[] the deck poorly in spots because he just ordered more base coat to cover the exposed aggregate that he blasted” and “[t]he contractor may not be applying enough sand in spots.”

Between September and November 2002, Sosa visited Deck I to evaluate the problems in person, and he provided CHP with written instructions for how to remediate those problems. CHP performed a remediation, but several months later the product was wearing out again. On July 31, 2003, ChemRex Senior Technical Services Representative Thomas Karlson visited Deck I to evaluate the problems. CHP owner Clarence Poole, J.F. Pate executive Mit Kopf, and Sosa also were present during Karlson’s visit. Based on his observations, Karlson wrote Poole a detailed letter explaining the flaws he observed in the installation of So-noguard and providing his recommendations for remediating those problems. Karlson faulted “improper concrete surface preparation” as the primary reason the Sonoguard did not perform as intended. Karlson recommended “shot-blasting” the areas of Deck I that were flawed in order to remove Sonoguard and to apply a different ChemRex product, Conipur II, to those areas.

CHP performed a second remediation of Deck I in October 2003. According to Sosa, Karlson and Sosa were present for the application of Conipur II so that they could “help [CHP] in any way we could.” Sosa testified to the difficulties that occurred with the second remediation.

“Unfortunately, Mr. Poole’s labor force [was] comprised of all temporary employees, which is fine [under certain conditions]. But when they started putting the material down we — me and Tom just started — red flags started going up, just through experience.
“They were not mixing it long enough. They weren’t getting it down on the floor long enough. They were keeping the material in the bucket too long. The material, when it starts heating on to itself, it just starts curing out. So probably shouldn’t have done it, but we did. We did not want to keep continuing with the problems on deck number one so Tom Karlson and myself took off our shoes, threw on some shorts and we jumped out there with his guys, and I would say that me and Tom probably did about 80% of that deck by ourselves.”

In early 2003, Mobile Infirmary engaged the services of J.F. Pate to renovate Deck II. To waterproof the top floor of Deck II and the ramp leading up to the top floor, J.F. Pate once again engaged CHP. J.F. Pate’s Kopf testified that a Mobile Infirmary vice president told him that a condition of allowing CHP to do the job was that he wanted a representative of the manufacturer of the waterproofing product present “to inspect the project, inspect the preparation before the coating went down, and inspect it after the coating was put on.” Kopf stated that he related this request to Poole and that he recalled Poole’s communicating with the manufacturer about it.

On April 15, 2003, Sosa wrote a letter to Poole that provided, in pertinent part:

“You recently informed me that you have been given the okay to proceed with the Physicians Parking Garage [Deck II]. The scope of the work is to remediate areas of ponding water and to apply a traffic grade urethane system over the existing deck. Due to complications that occurred on the previous job[, i.e., Deck I], we have both agreed that representatives from Chemrex, Inc. would be present during various times of the project to inspect the preparatory work, application of the products and to provide any technical assistance that may be required. In the beginning I recommend an inspection at least once a week to insure that all parties involved are in agreement with the manufacturer’s instructions. If it [is] necessary to be on the project more often until all parties are comfortable, then we will be happy to perform that function. I am looking forward to a successful project. Please contact me when you are ready to commence with you[r] preparatory work. If you have any questions or comments, please feel free to contact me at your earliest convenience.”

Sosa testified that he intended to have David Cook, at that time ChemRex’s Alabama Territory Manager, make site visits to Deck II in order to help CHP with any questions their employees might have concerning the application of Sonoguard. Sosa did not tell Cook specifically about the April 15, 2003, letter, but Cook testified that he and Sosa did have a conversation about Cook’s going to the project site during the course of the project. Cook stated that he visited the site four or five times throughout the project.

Both Cook and - Sosa denied that the purpose of the job-site visits was to ensure that the Sonoguard was installed correctly. Cook stated that “[m]y capacity on this job was to provide any technical service, answer any questions that Clarence [Poole] had during my visits. I was not a quality control or a quality assurance type person.” Sosa testified that he considered an “inspection” and a “job-site visit” to be synonymous, and he stated:

“At a job site visit we make ourselves available. The contractor has any questions, if he needs me to take a look at something in particular, if I can answer it I will. If I need to get a technical representative involved I will.
“So it’s basically going to the job and making sure everything is, you know, on the up and up if they have any issues or problems or questions.
“... [I]f I see something that’s unusual I’ll point it out and say now this doesn’t look right, and at that point we try to come up with a plan of action to remedy it. It might be something where the contractor did something wrong or it might be a structural defect with the substrate.... [I]t’s just — a lot of it just basically, you know, [is] seeing if you find any egregious errors.”

Poole testified that he “vaguely remember[ed]” the April 15, 2003, letter and that he understood that “Mr. Cook was supposed to be there weekly. Then I believe somewhere along the line when we seen it was taking longer he said he would be there every two weeks, if not weekly.” Poole stated that he “was relying on Mr. Cook to keep an eye on the job. The more people you have looking at any job, the easier it is to keep away from having troubles on it.” Poole also testified that he received “technical assistance” from Cook whenever he asked for it. It is undisputed that the technical data sheets that accompanied the Sonoguard in Poole’s possession stated that the “[u]ser shall determine the suitability of the products for the intended use and assume all risks and liability in connection therewith.”

CHP applied Sonoguard to Deck II in early October 2003. Cook sent a letter to Poole on October 2, 2003, stating that he made a site visit on September 30 “to observe the surface preparation on the deck surface.” In the letter, Cook told Poole how to fix “bug holes” that were opened on the parking deck after it was shot-blasted in preparation for application of the product. Cook sent another letter to Poole on October 14, 2003, in which he noted that he had made a site visit on October 10 and that, “[a]t this point it, it appears everything is in order.” The letter stated that Cook planned to make another visit later in that week.

Immediately after CHP finished the project, a parking-deck security guard reported that the ramp leading up to the top floor and the drive lanes of the top floor were “too slick.” Soon after, a Mobile Infirmary vice president drove on the top-floor deck surface and reported that it was “not acceptable and that more traction needed to be applied.” CHP’s Poole contacted Cook after receiving complaints about the slickness of the deck surface when it was wet. Cook also had received a call from a contractor doing a different job who reported that his truck had slipped when attempting to traverse the ramp up to the top floor of Deck II. Poole also drove his truck around the deck and he confirmed that the ramp and the drive lanes were slick when wet.

Cook visited the site the same week he received the complaints; he examined the ramp leading up to the top floor of the deck, but he did not examine the top floor itself, i.e., where Edward Crabtree eventually slipped and fell. At Poole’s request, Sosa also visited and examined Deck II. He told Poole that the amount of aggregate on the surface appeared to be “pretty sparse.” Sosa testified that he told Cook that he believed there was not enough exposed aggregate on the deck surface and that Cook agreed with him, relating that he had told Poole the same thing.

Additionally, Poole spoke with ChemRex Senior Technical Services Representative Karlson by telephone on October 27, 2003. In a letter documenting the conversation, Karlson related that it had been discovered that “the deck coating was slippery when wet in the drive lanes but not slippery in the parking areas.” Karlson concluded that the problem was that when CHP applied the topcoat, “the aggregate was buried into the deck coating material.” In other words, the silica sand added to the topcoat to provide traction had been covered up by excessive topcoat material, rendering the drive lanes of the parking deck slippery when wet. In the letter, Karlson provided detailed instructions to Poole on how to correct the problem. Among other things, Karlson stated that a “test application” should be performed and that CHP should “backroll” aggregate material into the surface of the deck.

It is undisputed that CHP performed remediation on the ramp leading up to the top floor of Deck II but that it did not perform any remediation work on the top floor itself. It is also undisputed that CHP did not follow Karlson’s instructions by first performing a “test application” or by “backrolling” the aggregate material into the surface of the deck. It is further undisputed that Poole did not contact ChemRex representatives to inform them of when the remediation would be performed or to ask them to look at the results after the remediation had been completed.

As previously stated, Edward Crabtree slipped and fell on the top floor of Deck II on February 11, 2004. The Crabtrees subsequently commenced this action against Mobile Infirmary and several fictitiously named defendants. The Crabtrees eventually substituted J.F. Pate, CHP, and BASF for fictitiously named defendants. In their fourth amended complaint, the Crabtrees alleged that all of these parties had “a duty to inspect the application process to confirm that the polyurethane material was properly installed” and that they had “negligently and wantonly failed to inspect the installation of the polyurethane material during the application process.” This “negligence and wantonness made the premises unreasonably dangerous and/or unsafe which proximately caused damages to the [Crabtrees].” The Crabtrees settled and dismissed their claims against Mobile Infirmary and CHP. The trial court entered a summary judgment for J.F. Pate, which the Crabtrees did not appeal. BASF was left as the only named defendant.

On April 11, 2008, BASF filed a motion for a summary judgment based on the applicable statute of limitations. On April 24, 2008, BASF filed a supplemental motion for a summary judgment in which it argued that it did not owe the Crabtrees a duty and that the Crabtrees had failed to produce substantial evidence in support, of their claims against BASF. The Crabtrees filed responses to both motions, and BASF filed replies to those responses.

On December 3, 2008, the trial court entered a summary judgment in BASF’s favor on the ground that the period set forth in the applicable statute of limitations had expired before the Crabtrees filed their complaint. On December 23, 2008, the trial court entered a second order in which it stated that it was modifying its original order and entering a summary judgment for BASF “based on the statute of limitations, as well as the reasons stated in BASF’s motion for a summary judgment based on lack of duty and failure to present substantial evidence in support of the [Crabtrees’] claims.”

The Crabtrees appealed the trial court’s judgment to this Court, but the appeal was transferred to the Court of Civil Appeals pursuant to § 12-2-7, Ala.Code 1975. The Court of Civil Appeals reversed the judgment of the trial court in a per curiam opinion. The Court of Civil Appeals concluded that the Crabtrees used reasonable diligence in substituting Degussa Corporation, a predecessor to BASF, for a fictitiously named defendant as soon as they were aware of the predecessor’s involvement. With regard to the issue of BASF’s liability as a matter of substantive law, the Court of Civil Appeals reasoned, in part, as follows:

“The Crabtrees argue that the issue whether BASF voluntarily assumed a duty to inspect is necessarily a question of fact because such questions are generally to be viewed in light of all the pertinent facts and circumstances; on the other hand, BASF asserts that assumption-of-duty issues may properly be resolved as questions of law. We agree with the Crabtrees that, under Alabama law, whether a duty to others has been assumed through a party’s affirmative conduct is to be determined in light of all the facts and circumstances. See Bryan v. Alabama Power Co., 20 So.3d 108, 119 (Ala.2009); see also Springhill Hosps., Inc. v. Larrimore, 5 So.3d 513, 516 (Ala.2008) (scope of a pharmacist’s voluntary undertaking is fact-specific).”

Crabtree v. BASF Bldg. Sys., LLC, 153 So.3d 787, 792 (Ala.Civ.App.2011) (“Crab-tree ”). The opinion went on to describe the contents of the April 15, 2003, letter from Sosa to Poole as well as testimony from Poole stating that he was “relying on” ChemRex to have someone there to inspect the preparatory work and the application of the product during the renovation of Deck II. Id. at 793. The opinion then concluded:

“Although we acknowledge that the record also contains evidence indicating that the extent of ChemRex’s authority was limited to merely making recommendations to CHP when requested or when a ChemRex employee observed a condition that warranted attention, we believe that, given the current state of the record, the trier of fact must resolve the dispute concerning whether BASF, through ChemRex, voluntarily assumed, and breached, a duty to inspect the installation of the polyurethane material so as to have injured the Crabtrees.”

Id. at 793.

BASF petitioned for a writ of certiorari, questioning the ruling of the Court of Civil Appeals with respect to the statute of limitations and with respect to the issues of duty and whether there was substantial evidence to support the Crabtrees’ claims. We denied certiorari review as to BASF’s argument related to the statute of limitations; we granted certiorari review to consider BASF’s arguments concerning lack of duty and the failure to present substantial evidence.

II. Standard of Review

“In reviewing a trial court’s ruling on a motion for a summary judgment, we apply the same standard the trial court applied initially in granting or denying the motion. Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999).
“ ‘The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present “substantial evidence” creating a genuine issue of material fact.’
742 So.2d at 184. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Swan v. City of Hueytown, 920 So.2d 1075, 1077-78 (Ala.2005).

“ ‘[To the extent] the underlying facts are not disputed and [an] appeal focuses on the application of the law to those facts, there can be no presumption of correctness accorded to the trial court’s ruling.’ Beavers v. County of Walker, 645 So.2d 1365, 1373 (Ala.1994) (citing First Nat’l Bank of Mobile v. Duckworth, 502 So.2d 709 (Ala.1987)). A ruling on a question of law carries no presumption of correctness, and appellate review is de novo. See Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869 (Ala.1999); Ex parte Graham, 702 So.2d 1215 (Ala.1997).”

Ex parte City of Brundidge, 897 So.2d 1129,1131 (Ala.2004).

III. Analysis

A. Who Decides Whether a Duty Existed?

The Court of Civil Appeals reversed the summary judgment in favor of BASF because it concluded that, “given the current state of the record, the trier of fact must resolve the dispute concerning whether BASF, through ChemRex, voluntarily assumed ... a duty to inspect the installation of the [Sonoguard] material.” Crab-tree, 153 So.3d at 793 (emphasis added). BASF contends that whether a voluntary duty existed is a question of law to be determined by the court, not a question of fact as the Court of Civil Appeals concluded. For support, BASF quotes Bryan v. Alabama Power Co., 20 So.3d 108 (Ala.2009):

“This Court has stated: ‘Alabama clearly recognizes the doctrine that one who volunteers to act, though under no duty to do so, is thereafter charged with the duty of acting with due care and is liable for negligence in connection therewith.’ Dailey v. City of Birmingham, 378 So.2d 728, 729 (Ala.1979). ‘However, the existence of a voluntarily assumed duty through affirmative conduct is a matter for determination in light of all the facts and circumstances.’ Parker v. Thyssen Mining Constr., Inc., 428 So.2d 615, 618 (Ala.1983). The relevant inquiry often involves the scope, as well as the existence, of the duty assumed. See, e.g., Springhill Hosps., Inc. v. Larrimore, 5 So.3d 513, 516 (Ala.2008) (noting that the scope of a pharmacist’s voluntary undertaking is a fact-specific inquiry); Dailey v. Housing Auth. for Birmingham Dist., 639 So.2d 1343, 1346 (Ala.1994) (discussing the limits of the scope of a duty voluntarily assumed where landlord hired security guard); Hodge v. United States Fid. & Guar. Co., 539 So.2d 229, 230 (Ala.1989) (workers’ compensation insurance case in which this Court noted that the plaintiff bears the burden of proving the scope of the duty voluntarily assumed). Furthermore, the underlying principle that the ‘existence of a duty is a question of law for the court to resolve’ applies. Baugus v. City of Florence, 985 So.2d 413, 419 (Ala.2007).”

20 So.3d at 119 (emphasis added). See also, e.g-., Taylor v. Smith, 892 So.2d 887, 891 (Ala.2004) (stating that, “[i]n Alabama, the existence of a duty is a strictly legal question to be determined by the court”); Martin v. Goodies Distribution, 695 So.2d 1175, 1179 (Ala.1997) (stating that “we must next determine whether, by providing its drivers with a list of operating procedures that included instructions relating to the safety of its child patrons under the age of eight, Goodies voluntarily assumed a legal duty to protect those children from traffic hazards that was not otherwise imposed by Alabama law”); Berkel & Co. Contractors, Inc. v. Providence Hosp., 454 So.2d 496, 506 (Ala.1984) (“In determining the existence of a duty, the trial court makes a legal decision. See, e.g., Hand v. Butts, 289 Ala. 653, 270 So.2d 789 (1972) (duty is a question of law).”).

Although the foregoing cases treat the question of the existence of a duty as a question of law for the court to decide, they do so in situations in which the facts upon which the duty will be determined to exist or not to exist are, themselves, not in question. In Bryan, for example, the plaintiffs claimed that a dam owner had voluntarily assumed a duty to minimize the extent of downstream flooding. It was apparently undisputed that, for parts of the year, the owner maintained the pool at .5 feet below full-pool level, thus leaving some storage capacity. The question was whether, on the basis of this fact, the court could conclude that the dam owner voluntarily assumed a legal duty to maintain additional storage capacity. This question of the existence of such a duty did not depend on the resolution of any other, unresolved, factual issues. See Bryan, 20 So.3d at 114-15.

When a genuine issue of a material fact exists, the jury must play its traditional role of a factfinder. As this Court stated in Gamer v. Covington County, 624 So.2d 1346, 1350 (Ala.1993), “[ajlthough the existence vel non of a duty is ordinarily a question of law for the court, it is not error to submit the question to the jury if the factual basis for the question is in sufficient dispute: to allow the trial court to determine such questions would undermine the traditional factfinding function of the jury.” (Second emphasis added.) See also Pickett v. Chambers Bottling Co., 716 So.2d 212, 213 (Ala.Civ.App.1998) (to same effect); Whataburger, Inc. v. Rockwell, 706 So.2d 1220, 1223 (Ala.Civ.App. 1997) (to same effect).

This Court expanded upon the issue before us in State Farm Fire & Casualty Co. v. Owen, 729 So.2d 834 (Ala.1998). Although Owen itself involved a fraud claim, rather than a negligence claim, the principles elucidated in Owen are applicable to both types of actions.

This Court in Owen first explained the intrinsic nature of the process in which a court engages when it decides whether the law should or should not recognize a legal duty arising from a given set of facts:

“Now that the question is squarely presented to us, we hold that the existence of a duty is a question of law to be determined by the trial judge. Simply stated, the question of duty is a judgment whether the law will impose responsibility on a party for its conduct toward another. ‘[T]he concept of duty amounts to no more than “the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection” from the harm suffered.’ [Stewart M.] Speiser [et al., The American Law of Torts ], § 9:3 at 1008 [ (1985) ]. That judgment is at heart one that requires an analysis informed by precedent and principles. In other words, a duty analysis is inherently a legal analysis that entails an intellectual process of identifying, weighing, and balancing a number of competing factors — the existing law of the jurisdiction, the practicability of imposing a duty, the demands of justice, and the interests of society. . That is an analysis our legal system recognizes is best undertaken by a judge.”

729 So.2d at 839. The Owen Court then proceeded to acknowledge, however, that the question of duty is not to be decided in a vacuum and instead depends upon the existence of appropriate facts:

“Of course, the concept of duty does not exist in a vacuum. It requires a relationship between two or more parties, a relationship that can be shown only through a history of contacts, conversations, and circumstances. Determining whether there is a duty necessarily requires analyzing the factual background of the case. In that sense, whether a duty exists is a mixed question of law and fact.”

Id. (emphasis added).

As the Owen Court then cogently explained, a jury determination concerning the facts upon which a legal duty depends may be necessary:

“Restatement (Second) of Torts § 551 cmt. m (1977) aptly characterizes the proper interplay of judge and jury in the duty analysis:
“ “Whether there is a duty to the other to disclose the fact in question is always a matter for the determination of the court. If there are disputed facts bearing upon the existence of the duty, as for example the defendant’s knowledge of the fact, the other’s ignorance of it or his opportunity to ascertain it, the customs of the particular trade, or the defendant’s knowledge that the plaintiff reasonably expects him to make the disclosure, they are to be determined by the jury under appropriate instructions as to the existence of the duty.’
“On first glance, this section might seem to support the view that the jury can determine the duty question in certain circumstances, i.e., where the facts are disputed. But a careful reading reveals that the jury is allowed to determine only the disputed facts upon which the alleged duty rests, not the existence of the duty itself. The effect of this comment is summarized in Jones Distributing Co. v. White Consolidated Industries, Inc., 943 F.Supp. 1445, 1474 (N.D.Iowa 1996):
“ ‘Thus, the court must decide in the first instance whether the circumstances asserted, if proved, would be sufficient to give rise to a duty to disclose; if the court finds the circumstances alleged would be sufficient, the jury will then be presented with the factual question of whether those circumstances indeed existed, provided of course, at the summary judgment stage of the proceedings, the plaintiff can generate a genuine issue of material fact as to the existence of those circumstances.’
“We think that the proper duty analysis should preserve the respective functions of both the judge and the jury. The judge should decide whether, assuming as truth all of the plaintiffs factual assertions, they are sufficient to give rise to a legal duty. If, even presuming that all of the plaintiffs facts are true, the judge determines that, as a matter of law, no duty was owed, then a summary judgment ... is appropriate. If the judge finds that the circumstances as alleged would be enough to create a legal duty, then he should instruct the jury as to what that duty would be if these circumstances did exist. The jury then decides whether those circumstances indeed existed. Should the plaintiff fail to prove her facts to the jury’s satisfaction, then the jury can determine that the plaintiff did not present sufficient evidence to justify holding the defendant to the legal duty as charged by the judge. By this process, the judge retains his ability to state what the law is, while the jury retains its responsibility to state what the facts are and whether the facts as proven justify the finding of a duty under the law.”

Owen, 729 So.2d at 839^10 (emphasis added).

The foregoing principles are applicable in this case. As this Court stated in Alabama Power Co. v. Brooks, 479 So.2d 1169, 1175 (Ala.1985), a negligence case: “ ‘Where the facts upon which the existence of a duty depends, are disputed, the factual dispute is for resolution by the jury.’” (Quoting Alabama Power Co. v. Alexander, 370 So.2d 252, 254 (Ala.1979).) Conversely, when the facts upon which the existence of a duty depends are not genuinely disputed, the task remaining is simply for the court to determine whether the alleged duty arises from those facts.

B. Did The Trial Court Correctly Decide the Question of Duty in This Case?

We turn now to the question whether the facts upon which the existence of a duty depends were sufficiently well established that the trial court correctly proceeded to decide that question and whether its decision that BASF did not have the duty asserted by the Crabtrees was correct. Applying the above-stated principles from Owen and Brooks, we conclude that the facts in this case are sufficiently well established that it was proper for the trial court to decide whether those facts gave rise to the duty asserted by the Crabtrees and that the trial court correctly decided that they do not.

We first note that the Crabtrees concede that the custom and practice of the industry is that “the manufacturer of the product may not ordinarily be responsible for the manner in which it is installed.” Further, witnesses on behalf of BASF explained an industry practice regarding job-site visits by manufacturer’s representatives that did not entail an assumption of responsibility for improper application of the product to the extent urged the Crabtrees. Roger Sosa testified that a job-site visit entailed “mak[ing] ourselves available” to the contractor, checking to see if the contractor had “any issues or problems or questions,” and pointing out a problem if one is noticed. David Cook testified that his job during the site visits “was to provide any technical service, answer any questions that Clarence [Poole] had during my visits. I was not a quality control or a quality assurance type person.”

The Crabtrees argue, however, that in this case the evidence demonstrates that “BASF voluntarily assumed a role in the installation process to insure (i.e., guarantee) that the Sonoguard product was installed correctly on Deck II.” They make much of the fact that BASF was aware that its product could be slippery if the correct amount of aggregate was not applied in a proper manner in conjunction with the application of the topcoat. This, however, is merely another way of stating that BASF knew the requirements for the proper installation of its product.

Ultimately, the Crabtrees’ contention that BASF undertook a responsibility to ensure that the installation of its product was performed correctly is based on the April 15, 2003, letter written by Sosa to Poole. The Crabtrees argue as follows:

“BASF entered into an agreement with CHP that representatives from BASF would be present at various times during the project to inspect the preparatory work and application of the Sono-guard material and to insure (i.e., guarantee) that the product was installed properly. The agreement between BASF and CHP is memorialized in a letter written by Mr. Sosa on April 15, 2003.”

The Crabtrees contend that, through the April 15, 2003, letter, “BASF assumed a duty to ‘be present during various times of the project to inspect the preparatory work, application of the products and to provide any technical assistance’ as required to ‘make sure or secure, to guarantee’ that this polyurethane system was properly installed in accordance with BASF’S instructions.” Crabtrees’ brief, p. 10. The letter the Crabtrees purport to quote from does not read exactly as the Crabtrees suggest. The pertinent portion of the letter states:

“Due to complications that occurred on the previous job, we have both agreed that representatives from Chemrex, Inc. would be present during various times of the project to inspect the preparatory work, application of the products and to provide any technical assistance that may be required. In the beginning I recommend an inspection at least once a week to insure that all parties involved are in agreement with the manufacturer’s instructions.”

(Emphasis added.)

Clearly, the letter contemplates that, when inspections occurred, they would be for the purpose of “inspect[ing] the preparatory work” and the “application of the product,” as well as “providing] any technical assistance that may be required.” The letter does not say that BASF representatives would be present continually, or on a daily basis, during the installation. To the contrary, the letter concludes as emphasized, with a recommendation of only weekly inspections to ensure that the parties “are in agreement with the manufacturer’s instructions.” Furthermore, when the job started taking longer than expected, CHP and BASF agreed that the inspections could occur only every two weeks. There is no assumption of a responsibility on BASF’s part to be present on the job site at the commencement of any particular phase of the work or while any particular phase of the work was being performed.

The dissent cites the evidence discussed above and concludes that there is substantial evidence that BASF did assume a duty. Again, we agree that BASF assumed a duty; however, consistent with the foregoing discussion, that duty was not to “guarantee” the proper installation of the product. Instead, as discussed, that duty was limited to visiting the site at the behest of CHP. That is, BASF’s duty was to give advice regarding such preparatory work and product application as it might observe on those specific occasions when it was called to the site — and to exercise due care in doing so. There is no evidence indicating that BASF did not do this. That is, there is no evidence indicating that, during any visit to the site, BASF observed or should have observed some condition of the site or course of action by CHP as to which it did not respond with appropriate advice.

Perhaps because of the absence of evidence of a failure by BASF to act with due care in connection with any particular site visit, the Crabtrees seek to bolster their action against BASF with a broader contention that BASF assumed a more general duty for the success of the product installation. The Crabtrees’ position essentially is that the job did not turn out well and that, therefore, BASF must bear responsibility for that fact. In other words, the Crabtrees assert that BASF took on some responsibility — or guarantee — for the outcome of the job generally. It did not.

Indeed, Poole testified that he received “technical assistance” from Cook whenever he asked for it. When he was asked what more BASF could have done on the project, Poole answered: “[It] could have been — [it] could have been there and give me a hand when I needed it more so — like [it] did on [Deck I] more so than [it] did.” Poole admitted, however, that he never asked BASF to provide that kind of assistance on Deck II. In fact, CHP never contacted BASF representatives either when it started or when it finished the remediation of Deck II in order to receive more assistance with the remediation.

In short, the facts and circumstances of this case lead us to conclude that BASF did not assume a duty to provide more advice or assistance to CHP than it actually provided. “It is settled that for one to maintain a negligence action the defendant must have been subject to a legal duty.” Morton v. Prescott, 564 So.2d 913, 915 (Ala.1990). Further, the record does not contain substantial evidence that BASF failed to exercise due care in providing the particular advice and assistance that it did provide in relation to the installation of Sonoguard or that any such advice or assistance proximately caused the condition that led to Edward Crabtree’s fall.

IV. Conclusion

For the reasons stated above, the trial court correctly entered a summary judgment in favor of BASF based on the evidence before it. Accordingly, the judgment of the Court of Civil Appeals is due to be reversed and the case remanded.

REVERSED AND REMANDED.

MOORE, C.J., and STUART, PARKER, and SHAW, JJ., concur.

BOLIN, J., concurs in the result.

MAIN and WISE, JJ., dissent.

BRYAN, J., recuses himself.

MAIN, Justice

(dissenting).

I respectfully dissent. This is an appeal from a summary judgment in favor of the defendant, BASF Construction Chemicals, LLC. Summary judgment is appropriate only when no material facts are in dispute. ‘“Where the facts upon which the existence of a duty depends, are disputed, the factual dispute is for resolution by the jury.’” Alabama Power Co. v. Brooks, 479 So.2d 1169, 1175 (Ala.1985) (quoting Alabama Power Co. v. Alexander, 370 So.2d 252, 254 (Ala.1979)).

It appears to me that the facts are in dispute with regard to whether BASF voluntarily assumed a duty to inspect the application of the polyurethane material on the floor .of the parking deck by CHP Industrial and Marine, Inc. (“CHP”). The letter from BASF to CHP can be construed as acknowledging some supervisory role by BASF during installation. The owner of CHP testified that he was relying on BASF to inspect the installation work. Indeed, BASF’s inspection of the installation was a condition of allow&g CHP to perform the work. The agreement to inspect the installation was arguably made for the benefit of CHP,- the parking-deck owner, and for the ultimate users of the deck. See Rudolph v. First Southern Fed. Sav. & Loan Ass’n, 414 So.2d 64 (Ala.1982) (lender of a construction loan had duty to exercise reasonable care in its inspection of borrower’s premises when inspection was voluntarily undertaken for the benefit of the borrower). Consequently, I would affirm the judgment of the Court of Civil Appeals.

      . In its petition, BASF explained that its correct name is “BASF Construction Chemicals, LLC,” and that it was improperly named "BASF Building Systems, LLC,” in the notice of appeal to the Court of Civil Appeals.

      . For the sake of simplicity and consistent with the terminology used by some of the witnesses, actions or inactions of ChemRex are sometimes referred to herein as those of BASF.

      . “Shot-blasting” is part of the process of preparing the surface area for the application of the Sonoguard base coat.

      . This testimony is quoted in the Crabtrees' response to the motion for a summary judgment, but the pages of the deposition the response cites are not included in the record.

      . Martin is representative of the cited line of cases in that the treatment of the question of duty as one for the court was premised on established facts, i.e., there was no genuine issue of fact as to whether the defendant had "provid[ed] its drivers with a list of operating procedures that included instructions relating to the safety of its child patrons under the age of eight.” Our review indicates that the same could be said of the other cases cited.

      . Thus, even if the April 15, 2003, letter could be understood as documenting an agreement between BASF and CHP for more regular or intensive involvement by BASF in the application process, the record indicates that CHP accepted the assistance that was actually provided by BASF during the work on Deck II as a fulfillment of its obligations under the letter.

      . Because we conclude that the trial court properly entered a summary judgment for BASF on the ground that there is notsubstan-tial evidence that it negligently breached a duty assumed by it in regard to the application by CHP of Sonoguard to Deck II, we need not reach the question whether any such duty ran to the Crabtrees.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jeannie West CRABTREE and Edward Wayne Crabtree v. BASF BUILDING SYSTEMS, LLC.
    2091044.
    Court of Civil Appeals of Alabama.
    April 4, 2014.
    John R. Spencer, Mobile; and C.S. Chie-palich, Mobile, for appellants.
    James B. Newman and D. Andrew Sti-vender of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, for appellee.
   On R'emand from the Alabama Supreme Court

PER CURIAM.

The prior judgment of this court reversing the summary judgment entered by the Mobile Circuit Court (“the trial court”) has been reversed, and the cause remanded by the Supreme Court of Alabama. See Ex parte BASF Constr. Chems., LLC, 153 So.3d 793 (Ala.2013). On remand to this court, and in compliance with the supreme court’s opinion, the summary judgment entered by the trial court is affirmed.

AFFIRMED.

All the judges concur.


author: DONALDSON, Judge.

text:
    T.D.I. v. A.P.
    2120600.
    Court of Civil Appeals of Alabama.
    Nov. 15, 2013.
    Rehearing Denied Feb. 14, 2014.
    Certiorari Denied April 18, 2014 Alabama Supreme Court 1130574.

      Bradley A. Green of Gina H. McDonald & Associates, LLC, Birmingham; and Erin Bell Wellborn, Columbiana, for appellant.
    Amyrtle M. Allen, Hueytown, for appel-lee.
   DONALDSON, Judge.

T.D.I. (“the grandmother”) appeals from a judgment of the Jefferson Juvenile Court, Bessemer Division (“the juvenile court”), in which her petition for custody of A.M.P. (“the child”) was denied. We affirm.

In September 2010, the mother of the child passed away. The mother and A.P. had lived together before her death but were never married. On January 5, 2011, A.P. filed a dependency petition in the juvenile court; that action was assigned case number JU-11-700018. In the petition, A.P. alleged that the child was dependent because her mother was deceased. He also claimed in the petition that he was the putative father of the child. He identified the grandmother as a person who “claim[ed] rights of legal custody of, physical custody of, or visitation with the child.” A.P., however, did not list an address for the grandmother in the petition, and the grandmother was not a party to that case.

Following a preliminary hearing, the juvenile court ordered A.P. to submit to a paternity test regarding the child and relieved the Department of Human Resources (“DHR”) of any supervisory responsibilities with respect to the child. The paternity test established that A.P. was not the child’s biological father. Nonetheless, on May 24, 2011, the juvenile court, noting that the mother was deceased and that the biological father was unknown, found the child to be dependent and awarded A.P. custody of the child. Although the juvenile court’s final order in case number JU-11-700013 did not award the grandmother visitation rights, presumably because she was not a party to the proceedings, the record reveals that the grandmother continued to have frequent visitation of the child following the entry of that judgment. There is nothing in the record to indicate that the juvenile court considered the grandmother or any other relative as a potential custodian of the child, and the record does not reveal any attempts by DHR or the juvenile court to provide the grandmother with notice of the custody award or of the paternity determination.

On January 12, 2012, the grandmother filed a separate dependency petition in the juvenile court; that action was assigned case number JU-12-700041. In her petition, the grandmother alleged that A.P., as the custodian of the child, had provided the child with inadequate care and that A.P. had abandoned the child by allowing his mother to be the primary caretaker for the child. The grandmother also requested custody of the child. A.P. filed an answer on February 1, 2012, in which he denied the grandmother’s allegations of dependency and opposed her request for custody.

The juvenile court commenced a trial on the matter on August 29, 2012. The trial was not completed that day and was continued to March 7, 2013. In the interim, a new juvenile-court judge was assigned to the case. At the portion of the trial conducted on March 7, 2013, the grandmother testified that she had had frequent visitation with the child since the mother’s death. She stated that she had not received notice of A.P.’s dependency petition, although she stated that she had been contacted by a DHR social worker inquiring about A.P. and had informed the social worker that A.P. had been a good father figure to the child. She testified, however, that that inquiry had occurred before she learned that A.P. was not the child’s biological father. She stated that A.P. changed after she found out that he was not the child’s biological father and after she told him that she intended to file a petition for custody. The grandmother testified that she had concerns with the living situation at A.P.’s home. Specifically, she stated that she had observed kerosene heaters being utilized in the home, which she feared could exacerbate the child’s respiratory condition. She testified, however, that she believed the child to be in good health. She also expressed concerns over the number of people living in A.P’s home. She testified that she had been employed at the same place of business for 17 years and that she had the means to provide support for the child.

A.P. testified that he and the child had lived at his current residence for three years. He stated that he was employed and working the evening shift. He testified that he sent the child to day care and that his father and his cousin assisted with caring for the child while he worked. A.P. stated that the child is with the grandmother on most weekends. He stated that he took the child to doctor and dentist appointments. He testified that he had believed himself to be the biological father of the child at the time he filed his dependency petition and up until the paternity results showed that he was not the child’s biological father. He testified that he had been listed as the child’s father on the child’s birth certificate. He stated that he still considered the child to be his daughter and that he intended to continue to raise her.

The juvenile-court judge presiding over the March 7, 2013, portion of the trial received the testimony of Patrice Blanten, a DHR social worker, as an exhibit entered by the consent of the parties. Blan-ten’s testimony had been taken before the previous juvenile-court judge at the August 2012 portion of the trial. Blanten testified that she had performed a home evaluation on both A.P.’s and the grandmother’s residences and that neither residence was deficient. Blanten also stated that, due to criminal-background checks not having been conducted on the grandmother and A.P., she was unable to make a recommendation to the juvenile court concerning custody.

On March 15, 2013, the juvenile court entered a final judgment in case number JU-12-700041. In its judgment, the juvenile court stated, in pertinent part:

“[The matter] was called for trial on Petition to modify custody filed by [the grandmother].
“After an ore tenus trial consisting of sworn testimony, evidence and argument of counsel, the court finds that pursuant to Ex parte [McLendon, 455 So.2d 863 (Ala.1984),] the [grandmother] has not met the burden of proof to modify custody. Therefore the care [and] custody of [the child is] awarded to A.P., [the child’s] putative father.”

Also in its judgment, the juvenile court made reference to a statement made by the grandmother to a DHR social worker that had been included in a DHR report submitted in the dependency case initiated by A.P. The juvenile court stated that

“[t]he maternal grandmother gave a favorable report to ... Meoshia Abramsf, a DHR social worker], under JU-11-700013, ‘her daughter was engaged to [A.P.]. That contact with [A.P.] was every other day and face to face every weekend when she gets [the child]. She reported that he takes good care of [the child] and he doesn’t leave her on other people to care for her. She reported that her daughter never spoke ill of [A.P.] and she has no concerns with him getting full custody of [the child.’]”

The juvenile court also awarded the grandmother visitation rights with the child and entered a visitation schedule.

The grandmother filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial on March 28, 2013. In the motion, the grandmother contended that the juvenile court’s judgment was not supported by the evidence; that the judgment contained citations to the “evidence” that was not submitted at trial; that A.P. suppressed the fact that he was not the father of the child; that A.P. failed to provide the court "with the grandmother’s address in his dependency petition; that the judgment was at odds with the stated policy of the State of Alabama favoring placement of a dependent child with a relative over a nonrelative; and that the grandmother was not a party to the previous dependency action. The grandmother requested a hearing in the motion. Although the record reveals that the juvenile court purported to set the motion for a hearing by an order dated April 15, 2013, the grandmother’s motion was denied by operation of law on April 12, 2013, pursuant to Rule 59.1, Ala. R. Civ. P., and Rule 1(B), Ala. R. Juv. P., without a hearing having been held. Thereafter, the grandmother filed a timely notice of appeal to this court.

It is evident from the judgment that the juvenile court treated the grandmother’s petition as one seeking a modification of custody. During the March 7, 2013, portion of the trial, counsel for both parties made statements that the standard announced in Ex parte McLendon, 455 So.2d 863 (Ala.1984), would apply in the present case. Although in her brief on appeal the grandmother sporadically refers to her petition as being one invoking the dependency jurisdiction of the juvenile court, we note that, in her postjudgment motion, the grandmother did not object to the juvenile court’s application of the McLendon standard to this case. She also does not explicitly raise the juvenile court’s application of the McLendon standard as an issue on appeal. As this court has previously noted:

“Once a juvenile court has placed a dependent child into the ‘permanent’ custody of a proper caregiver, the dependency of the child ends and any further change of custody is governed by the standards set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984). See Ex parte J.P., 641 So.2d 276, 278 (Ala.1994) (applying the McLendon standard in a custody dispute between two sets of relatives when one set of relatives had been awarded custody under a prior judicial order). Thus, the noncustodial relatives were required to meet the McLendon standard in order to be entitled to a modification of the custody of the children. As our supreme court reaffirmed in Ex parte Cleghorn, 993 So.2d 462, 466-67 (Ala.2008):
“ ‘In Ex parte McLendon, we held that the trial court cannot order a change of custody “ ‘unless [the party seeking the change of custody] can show that a change of the custody will materially promote [the] child’s welfare.’” 455 So.2d at 865 (quoting Greene v. Greene, 249 Ala. 155,157, 30 So.2d 444, 445 (1947)). We noted in Ex parte McLendon that “[i]t is important that [the party seeking the change in custody] show that the child’s interests are promoted by the change, i.e., that [the party seeking the change in custody] produce evidence to overcome the ‘inherently disruptive effect caused by uprooting the child.’ ” 455 So.2d at 866.’
“Our supreme court has also stressed that ‘[t]he McLendon standard is a “rule of repose,” meant to minimize disruptive changes of custody because this Court presumes that stability is inherently more beneficial to a child than disruption.’ Ex parte Cleghorn, 993 So.2d at 468. As noted above, the record contains evidence indicating that the children make good grades and are doing well in the custody of the custodians. Nothing in the record would support the conclusion that the children’s best interest would be served by modifying custody and removing the children from the home of the custodians. Accordingly, we affirm the juvenile court’s judgments insofar as they denied the noncustodial relatives’ custody petitions.”

B.C. v. A.A., 143 So.3d 198, 206 (Ala.Civ. App.2013). We have also previously noted:

“[T]he McLendon standard does apply to a petition to modify an award of ‘permanent’ custody that was made pursuant to a finding that the child was dependent. See P.A. v. L.S., 78 So.3d 979, 981 (Ala.Civ.App.2011) (‘When a juvenile court has entered a judgment awarding custody of a'dependent child to a relative, a parent seeking to modify that custody must meet the McLendon standard in order to regain custody of the child.’).
“This court must construe the juvenile court’s judgment, if possible, in a manner that would uphold the validity of the judgment. See Ex parte Snider, 929 So.2d 447, 457 (Ala.2005) (quoting Clark v. Board of Dental Exam’rs of Georgia, 240 Ga. 289, 294, 240 S.E.2d 250, 254 (1977), quoting in turn Byrd v. Goodman, 195 Ga. 621, 621, 25 S.E.2d 34, 35 (1943) (Syllabus by the Court))(‘ “ ‘When a judgment is susceptible of two meanings, one of which would render it illegal and the other proper, that construction will, if reasonably possible, be given it that would render it legal.’ ” ’).”

M.W.H. v. R.W., 100 So.3d 603, 608-09 (Ala.Civ.App.2012). This is not to say that a juvenile court, after a dependent child has been placed into the “permanent” custody of a proper caregiver, is precluded from making a subsequent determination of dependency and award of custody if, upon proper petition of a party, that party satisfies its burden of proving that the circumstances surrounding a child have again rendered that child dependent and that it would be in the best interest of the child to award custody to the petitioner.

But in the present case the juvenile court correctly considered the grandmother’s petition as one seeking modification of the 2012 custody judgment entered in case number JU-11-700013 and correctly applied the McLendon standard. The juvenile court had made a previous determination of dependency and had placed the child in the permanent custody of A.P. without requiring DHR supervision. Although the grandmother made allegations in her petition that the child was dependent while in the custody of A.P., the juvenile court did not make a new finding of dependency. The record further indicates that the parties impliedly consented to treat the case as one'concerning custody modification, to which the McLendon standard would apply. See Rule 15(b), Ala. R. Civ. P. (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.”). See also, Rule 54(c), Ala. R. Civ. P. (“Except as to a party against whom a. judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.”). Thus, the trial court properly determined that any determination as to a further change of custody would be governed by the McLendon standard.

On appeal, the grandmother first contends that the juvenile court erred by failing to give preference to the grandmother, a relative of the child, when making its custody determination. Section 12-15-314, Ala.Code 1975, states, in pertinent part:

“(a) If a child is found to be dependent, the juvenile court may make any of the following orders of disposition to protect the welfare of the child:
“(3) Transfer legal custody to any of the following:
“c. A relative or other individual who, after study by the Department of Human Resources, is found by the juvenile court to be qualified to receive and care for the child. Unless the juvenile court finds it not in the best interests of the child, a willing, fit, and able relative shall have priority for placement or custody over a non-relative.”

The initial determination of dependency, however, was made in the dependency proceeding commenced by A.P. in case number JU-11-700013. As mentioned above, the current case was initiated by the grandmother and was treated by the parties and by the juvenile court as a petition for a modification of a prior custody order. The juvenile court made no new finding of dependency. Therefore, the relative-preference provision of § 12-15-314(a)(3)c. is inapplicable to the current proceeding.

The grandmother next contends that the evidence at trial did not support an award of custody to A.P. The grandmother relies on M.M. v. Colbert County Department Human Resources, 117 So.3d 376 (Ala.Civ. App.2013), for the proposition that she, as a relative of the child, should be entitled to custody under § 12-15-314(a)(3)c. over A.P., a nonrelative, because she has not been found to be unfit. M.M., however, involved a termination-of-parental-rights action in which the grandparent arguing for custody on a motion to intervene in the action was determined not to be “a viable alternative that would forestall termination of the parental rights of the mother,” thus negating application of the relative-preference provision of § 12-15-314(a)(3)c. M.M., 117 So.3d at 381. The present case is distinguishable because it involves a petition to modify a previous custody order to which the McLendon standard applies. The present case is not one in which the juvenile court determined the dependency of the child or where it addressed the termination of parental rights. Essentially, the grandmother is reasserting her argument that she should be eligible for relative preference, and she is stating that DHR had a burden to prove her unsuitability. Although it is true that the evidence in the record may not have supported a finding that the grandmother was an unsuitable relative resource, the issue before the juvenile court was one of modification of custody rather than a disposi-tional adjudication following the initial finding of dependency. The standard to be applied was the McLendon standard, and the juvenile court made a determination that the grandmother did not satisfy her burden of proof. Thus, the juvenile court correctly determined, based on the evidence, that custody should remain with A.P.

The grandmother also asserts that the juvenile court erred in denying her motion for new trial when the juvenile court’s final order was based on inadmissible evidence not presented at trial. Although the grandmother correctly notes that the DHR report submitted in the action initiated by A.P. was not admitted into evidence in this action, the grandmother did testify at trial that she had informed a DHR worker that A.P. had been a good father figure to the child. Thus, the excerpt of the DHR report that the juvenile court quoted in its judgment is cumulative of the grandmother’s testimony. Even if the juvenile court’s consideration of the grandmother’s statements made in the report had constituted error, the error would have been harmless. See Homady Transp., LLC v. Fluellen, 116 So.3d 236, 243 (Ala.Civ.App.2012), citing Wood v. Hayes, 104 So.3d 863, 870 (Ala.2012), and Rule 45, Ala. R.App. P. The grandmother also asserts that a party requesting a hearing on a postjudgment motion is entitled to such a hearing pursuant to Rule 59, Ala. R. Civ. P.

“Rule 59(g), Ala. R. Civ. P., requires that a trial court conduct a hearing on a postjudgment motion if such a hearing is requested in that motion. Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala.2000). The failure to conduct a requested hearing on a postjudgment motion is error. Id. However, any such error ‘is reversible error only if it “probably injuriously affected substantial rights of the parties.’” Kitchens v. Maye, 623 So.2d 1082, 1088 (Ala.1993) (quoting Greene v. Thompson, 554 So.2d 376, 380-81 (Ala.1989)). If the failure to conduct a hearing did not ‘ “injuriously affect[] [the] substantial rights of the parties,” ’ that failure, while error, was harmless. Id.
“ ‘ “Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.” ’
“Kitchens v. Maye, 623 So.2d at 1088-89 (quoting Greene v. Thompson, 554 So.2d at 381).”

DWOC, LLC v. TRX Alliance, Inc., 99 So.3d 1233, 1235-36 (Ala.Civ.App.2012). A review of the record in this case reveals that no prejudicial error occurred. We hold that, based on the evidence, there was no probable merit to the grounds raised in the motion. In her postjudgment motion, the grandmother essentially reasserted arguments that were presented in her casein-chief during trial. She also argued that the juvenile court improperly considered “evidence that was not submitted at trial.” As noted above, we have determined that the juvenile court’s reference to the DHR report was harmless error. Therefore, we conclude that the failure to conduct a hearing on the grandmother’s postjudgment motion was not prejudicial error.

For the foregoing reasons, we affirm the juvenile court’s judgment.

AFFIRMED.

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


author: THOMPSON, Presiding Judge.

text:
    Samuel RODGERS v. Elizabeth McELROY.
    2121039.
    Court of Civil Appeals of Alabama.
    April 18, 2014.

      Stewart E. Burns of Burns Garner Law Firm, Gadsden, for appellant.
    Carl Ann Smith and A. Mark Bahakel of Smith & Pace, P.C., Birmingham, for ap-pellee.
   THOMPSON, Presiding Judge.

This is the second time the parties have come before this court on the issue of compensation for Elizabeth McElroy for her service as personal representative of the estate of Ron’Drequez Cortez White in a wrongful-death action arising out of a motor-vehicle accident in which White was killed. The wrongful-death action resulted in a recovery for White’s next of kin: his mother, Sandey Greene, and his father, Samuel Rodgers. The issue of McElroy’s fee was litigated, after which the Jefferson Circuit Court (“the trial court”) awarded her a fee to be paid from the proceeds of the wrongful-death action for “extraordinary services” rendered as personal representative of the estate, pursuant to § 43-2-848(b), Ala.Code 1975. Rodgers appealed the judgment awarding McElroy a fee; this court affirmed the judgment. Rodgers v. McElroy, 141 So.3d 1030 (Ala.Civ.App.2012)(“Rodgers I ’’).

Subsequently, our supreme court granted Rodgers’s petition for the writ of certio-rari “to determine the narrow question whether a personal representative may be compensated out of the proceeds recovered in a wrongful-death action.” Ex parte Rodgers, 141 So.3d 1038, 1040 (Ala.2013). Our supreme court reversed this court’s judgment, holding that

“ § 43-2-848(b) does not entitle McEl-roy, the personal representative, to any fee from the wrongful-death proceeds because the recovery in the wrongful-death action was not for the estate. Alabama law mandates the payment of wrongful-death proceeds to the heirs of the deceased. The clear language of the wrongful-death statute provides that proceeds from a wrongful-death action ‘are not subject to the payment of the debts or liabilities’ of the decedent. § 6-5-410(c), Ala.Code 1975. There is no allowance in the wrongful-death statute for payment of expenses of the administration of the decedent’s estate, which would include personal-representative compensation. See § 43-2-371, Ala. Code 1975 (setting out the order of preference of debts against the estate). Under the combined effect of §§ 6-5-410 and 43-2-848(a) and (b), Ala.Code 1975, McElroy was not entitled to be paid from the proceeds of the wrongful-death recovery either reasonable compensation for her services or extraordinary compensation for her services.”

(Footnote omitted.) Accordingly, on remand from the supreme court, this court reversed the judgment of the trial court and remanded the cause to the trial court for further proceedings consistent with our supreme court’s opinion. Rodgers v. McElroy, 141 So.3d 1046 (Ala.Civ.App. 2013).

On remand, the trial court held a hearing regarding whether McElroy was entitled to a reasonable fee for her services as personal representative. Afterward, on September 10, 2013, the trial court entered a judgment (“the 2013 judgment”) finding that, although the Alabama Supreme Court had determined that McElroy was not entitled to a fee pursuant to § 43-2-848, “general rules of trust law permit a personal representative compensation in wrongful death actions.” The trial court went on to state:

“Based upon general equitable principles, quantum meruit, and/or pursuant to Alabama Code § 19-3B-708 (1975), Elizabeth McElroy should receive compensation for her services rendered relative to the non-probate creation and administration of a statutory trust. It would be unfair and inequitable for a personal representative and here, an attorney, to perform work for the benefit of others without compensation.”

The trial court then awarded McElroy a fee of $15,750 to compensate her for the services she had rendered as “personal representative, attorney, and statutory trustee of wrongful death proceeds.” The trial court also denied Rodgers’s motion seeking distribution of the $15,750 of the wrongful-death proceeds that had not yet been distributed. The balance of the wrongful-death proceeds had already been distributed to Greene and Rodgers.

Rodgers appealed from the 2013 judgment. McElroy sought to have the appeal dismissed, contending that White’s estate remained open and pending and, therefore, that the judgment was nonfinal. On March 4, 2014, this court reinvested the trial court with jurisdiction to certify the 2013 judgment as final, if appropriate, pursuant to Rule 54(b), Ala. R. Civ. P. The trial court determined that Rule 54(b) certification was appropriate, and it entered an order certifying the 2013 judgment as final on March 18, 2014. Accordingly, the 2013 judgment is now final for purposes of appeal.

On appeal, Rodgers contends that in Ex parte Rodgers, supra, our supreme court made clear that proceeds recovered from a wrongful-death claim must be distributed to the next of kin of the decedent and cannot be paid to the personal representative of an estate as compensation. Therefore, he says, the trial court erred in awarding McElroy a fee under any legal theory.

McElroy, on the other hand, asserts that our supreme court did not hold in Ex parte Rodgers that she was precluded from recovering reasonable compensation as a statutory trustee for the wrongful-death proceeds under § 19-3B-708, Ala.Code 1975, under general principles of trust law, or under other- legal and equitable theories that were not addressed in Rodgers’s petition for the writ of certiorari to our supreme court. In her brief to this court in this appeal, McElroy contends that,

“[ajlthough the issue was not before the Alabama Supreme Court in this case, Justice Bohn (in a special concurrence) confirmed that the recovery of wrongful death proceeds by a personal representative creates a statutory trust out of which the personal representative may be awarded without running afoul of § 43-2-848[, Ala.Code 1975].”

This issue presents this court with a question of law, which we review de novo.

“ ‘ “[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the court’s judgment carries no presumption of correctness.” Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996). Questions of law are reviewed de novo. BT Sec. Corp. v. W.R. Huff Asset Mgmt. Co., 891 So.2d 310 (Ala.2004).’
“Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Ex parte Terry, 957 So.2d 455, 457 (Ala. 2006).

As mentioned, in Ex parte Rodgers, supra, our supreme court granted certiorari review “to determine the narrow question whether a personal representative may be compensated out of the proceeds recovered in a wrongful-death action.” Ex parte Rodgers, 141 So.3d at 10.42. In that case, our supreme court first parsed the language in § 4S-2-848(b), which provides for the compensation of a personal representative “for extraordinary services performed for the estate,” and § 6-5-410, one of Alabama’s wrongful-death statutes. It then wrote:

“Applying the rules of statutory construction, we conclude that § 43-2-848(b) does not entitle McElroy, the personal representative, to any fee from the wrongful-death proceeds because the recovery in the wrongful-death action was not for the estate. Alabama law mandates the payment of wrongful-death proceeds to the heirs of the deceased. The clear language of the wrongful-death statute provides that proceeds from a wrongful-death action ‘are not subject to the payment of the debts or liabilities’ of the decedent. § 6-5-410(c), Ala.Code 1975. There is no allowance in the wrongful-death statute for payment of expenses of the administration of the decedent’s estate, which would include personal-representative compensation. See § 43-2-371, Ala.Code 1975 (setting out the order of preference of debts against the estate).1 Under the combined effect of §§ 6-5-410 and 43-2-848(a) and (b), Ala.Code 1975, McElroy was not entitled to be paid from the proceeds of the wrongful-death recovery either reasonable compensation for her services or extraordinary compensation for her services.
“1 See Affinity Hosp., L.L.C. v. Williford, 21 So.3d 712, 715-16 (Ala.2009). See also Baggett v. Sellers, 282 Ala. 235, 210 So.2d 796 (1968) (damages recovered as result of wrongful death must be distributed according to statute of distribution); Hatas v. Partin, 278 Ala. 65, 175 So.2d 759 (1965) (personal representative is conduit for collecting damages in a wrongful-death action and passing them over to those entitled under statute); Stephens v. Williams, 226 Ala. 534, 147 So. 608 (1933) (administratrix is statutory representative in a wrongful-death action, suing for sole benefit of beneficiaries named in statute); Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882 (1921) (distributees of decedent’s estate are sole beneficiaries of proceeds in a wrongful-death action); Kennedy v. Davis, 171 Ala. 609, 55 So. 104 (1911) (property right in damages collected in a wrongful-death action vested exclusively in distributees of intestate); Louisville & Nashville R.R. v. Street, 164 Ala. 155, 51 So. 306 (1909) (sum recovered as result of a wrongful death not asset of estate, not subject to decedent’s debts or liabilities, and sum recovered is distributable in accordance with our statute of distribution).”

Ex parte Rodgers, 141 So.3d at 1043.

Although McElroy relies on Justice Bo-hn’s special concurrence in Ex parte Rodgers to support her position that the trial court in this case was free to compensate her from the wrongful-death proceeds based on principles of trust law, she overlooks that part of the special writing in which Justice Bohn states that his proposed solution to the inequity that results in cases like this one is prospective. Justice Bohn wrote:

“Although I concur with the main opinion, I posit that the unjust result obtained for the personal representative in this case may well be avoided prospectively on the basis of the finding of a statutory trust in successful wrongful-death actions brought by the personal representative, with reasonable and just compensation being fixed as trustee fees and paid from the trust res in those actions.”

Ex parte Rodgers, 141 So.3d at 1046 (Bolin, J., concurring specially) (emphasis added). To explain this possible solution, Justice Bolin analyzed the role of a personal representative in a wrongful-death action and applied general trust principles to recoveries made in such actions, concluding:

“Based on the foregoing, I conclude that Alabama’s wrongful-death statute, § 6-5-410, Ala.Code 1975, creates a ‘statutory trust’ in that it gives both the capacity and the right, and indeed even the obligation should a wrongful-death cause of action exist, solely to a decedent’s personal representative to bring a wrongful-death action on behalf of the decedent’s next of kin based on the death of the decedent by wrongful act. Although nothing in § 6-5-410 provides for a fair compensation to be paid to the personal representative for bringing such an action, neither does anything expressly prohibit a fair compensation from being paid to a personal representative who has successfully brought a wrongful-death action pursuant to that section, payable from the proceeds resulting therefrom. Thus, I submit that general rules of trust law should govern personal-representative compensation in wrongful-death actions, and either based upon equitable principles or pursuant to § 19-3B-708, Ala.Code 1975, the personal represéntative/quasi-trus-tee should be allowed to receive compensation for services relative to the non-probate administration of a statutory trust. Ex parte Taylor, 93 So.3d [118] at 118 [ (Ala.2012) ] (Murdock, J., concurring specially and stating that the personal representative acts as a quasi-trustee upon recovery in a wrongful-death action).”

Ex parte Rodgers, 141 So.3d at 1046 (Bolin, J., concurring specially).

The appeal in this case, however, is not taken from a judgment entered in a wrongful-death action. The wrongful-death action, which involved other parties, was settled before the judgment in this action was entered. Rodgers 1, 141 So.3d at 1031. This action began when Rodgers filed a petition in the Jefferson Probate Court seeking an order establishing that he had the right to inherit from White because, Rodgers said, he was White’s father. Greene contested Rodgers’s petition, and the matter was moved to the trial court. After a jury trial in October 2011, the jury returned a verdict finding that Rodgers was White’s father and, therefore, that he was entitled to inherit from White. On October 13, 2011, the trial court entered a judgment on that verdict and ruled that, in addition to being entitled to inherit from White under the laws of intestate succession, Rodgers also was entitled to a share of the proceeds of the wrongful-death action. Rodgers I, 141 So.3d at 1032.

This court concludes that nothing in Ex parte Rodgers allows the trial court to award McElroy a fee from the wrongful-death proceeds for her work as the personal representative of White’s estate. If McElroy was to be awarded a fee from the wrongful-death proceeds, the trust res from which such an award could have been paid should have been created by the court in the wrongful-death action against the driver of the other vehicle involved in the accident in which White was killed. The trial court in this action, which involves only issues arising out of the administration of White’s estate, did not have the authority to award McElroy a fee from the wrongful-death proceeds. See Ex parte Rodgers, supra. Accordingly, the judgment of the trial court awarding McElroy a fee out of the wrongful-death proceeds to compensate her for her work as the personal representative of White’s estate must be reversed. Although the statutes applicable in this case require reversal of the trial court’s judgment, this court shares Justice Bolin’s belief, expressed in his special concurrence, that this outcome is “unfair and inequitable to the personal representative.” Ex parte Rodgers, 141 So.3d at 1044 (Bolin, J., concurring specially). Because we are reversing the judgment on this basis, we pretermit discussion of Rodgers’s other issues on appeal.

For the reasons set forth above, the judgment of the trial court is reversed and this cause is remanded for entry of a judgment consistent with this opinion. Rodgers’s request for an attorney fee on appeal, based on his belief that McElroy “per-suad[ed] the trial court to disobey the appellate mandate,” is denied.

REVERSED AND REMANDED.

PITTMAN, THOMAS, and DONALDSON, JJ., concur.

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

      . See Rodgers I, supra, for the factual background of this case.

      . McElroy has filed a motion with this court to strike any arguments or claims Rodgers makes on behalf of Greene. Greene is not a party to this appeal. In fact, as the trial court noted in the 2013 judgment, Greene has never disputed that McElroy is entitled to compensation for her service as a personal representative, and Greene did not appeal from the original judgment of December 15, 2011. The general rule is that when a judgment is rendered against two defendants and only one defendant appeals, the judgment is valid against the nonappealing party. Glasscock v. Wallace, 488 So.2d 1346, 1347 (Ala.1986); see also J.A.P. v. L.W.A., 910 So.2d 115, 119-20 (Ala.Civ.App.2004)). Therefore, the December 15, 2011, judgment remains binding on Greene. Furthermore, Rodgers does not have standing to assert arguments on behalf of Greene. Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990) ("As a general rule, ‘a litigant may not claim standing to assert the rights of a third party.’ ”). To the extent Rodgers purports to make arguments on behalf of Greene in this appeal, McElroy’s motion to strike such arguments is granted.