author: MAIN, Justice.

text:
    ALABAMA PSYCHIATRIC SERVICES, P.C., and Managed Health Care Administration, Inc. v. A CENTER FOR EATING DISORDERS, L.L.C.
    1110703.
    Supreme Court of Alabama.
    Jan. 24, 2014.

      Thomas A. Kendrick and W.M. Bains Fleming III of Norman, Wood, Kendrick & Turner, Birmingham, for Alabama Psychiatric Services, P.C., and Managed Health Care Administration, Inc.; and Jack Criswell of Hare Clement & Duck, P.C., Birmingham, for Alabama Psychiatric Services, P.C.
    Stephen D. Heninger of Heninger Garrison & Davis, LLC, Birmingham, for appel-lee.
   MAIN, Justice.

Alabama Psychiatric Services, P.C. (“APS”), and Managed Health Care Administration, Inc. (“MHCA”), the defendants in this action, appeal from the trial court’s order denying their motions for a judgment as a matter of law (“JML”) made at the close of all the evidence. Although the jury entered a verdict for APS and MHCA, they nonetheless argue that the two claims that were ultimately tried should not have been submitted to a jury. APS and MHCA also appeal from the order entered by the trial court granting a motion for a new trial filed by A Center for Eating Disorders, L.L.C. (“ACED”), the plaintiff in this action. The trial court’s order overturned the judgment entered on a jury verdict for APS and MHCA. We reverse and remand.

I. Factual Background and Procedural History

In its order granting in part the motions for a summary judgment filed by APS and MHCA, the trial court stated the facts as follows:

“Plaintiff A Center for Eating Disorders, L.L.C. (‘ACED’), opened on February 23, 2009, providing partial hospitalization treatment (‘PHP’) for individuals suffering from eating disorders. In a PHP program, patients come to the facility for various treatment sessions for five or six hours per day for five or six days per week. ACED is fully accredited by the Joint Commission.
“Blue Cross Blue Shield of Alabama (‘BCBS’) is in the health insurance business. BCBS does not have a preferred provider network for individual mental health providers. BCBS utilizes Managed Health [Care Administration], Inc. (‘MHCA’) to manage behavioral health networks for their members. MHCA is owned mainly by physicians who work for [Alabama] Psychiatric Services, P.C. (‘APS’). Additionally, MHCA is managed by two non-physicians who are also employed by APS. Rusty Adams has been the Chief Operating Officer of APS for 20 years and the Chief Operating Officer of MHCA for 15 years. Similarly, Doyle Stewart has been the Chief Financial Officer of both APS and MHCA for the past 10 years. BCBS has testified that it was not aware of the overlapping ownership between MHCA and APS.
“APS entered into a contract with BCBS in 1986 to manage what is known as Expanded Psychiatric Services (‘EPS’). In 1991, that contract was transferred from APS to MHCA. MHCA now manages a number of behavioral health networks for BCBS. BCBS contracts with members for health insurance and out of the premiums it receives, BCBS pays MHCA $3.10/month per member. MHCA is expected to arrange mental health services for these members for that monthly payment, and any leftover amount is profit to MHCA. Many BCBS group health insurance plans and self-funded group plans administered by MHCA provide mental health benefits for their members through three benefit designs that access certain preferred provider networks: (1) Expanded Psychiatric Services benefits; (2) Expanded Psychiatric Services Exclusive (‘EPX’) benefits; and (3) Blue Choice Behavioral benefits (‘Blue Choice’).
“The services of mental health professionals covered under BCBS are accessed through EPS and administered by MHCA. APS operates the [Eating Disorders Center of Alabama (‘the EDCA’) ], which provides treatment for patients through a partial hospitalization program. In a prior trademark suit filed by APS against ACED, APS alleged that the services provided by ACED were essentially identical to the services provided by the EDCA. BCBS members with EPS benefits in their health plan may obtain PHP services for eating disorders by accessing their EPS benefits.
“BCBS has stated that ACED is not an MHCA provider and that any claims submitted by ACED are paid as Out of Network benefits, regardless of whether or not the plan provides access to EPS benefits. As a result, BCBS members seeking behavioral health treatment receive no benefit whatsoever if they choose treatment at ACED. This places ACED at a clear competitive disadvantage, as BCBS members with EPS plans constitute 90-95% of the market. If members wanted any EPS benefits at all for behavioral health treatment, they were required to choose treatment at the EDCA, which is operated by APS and managed by the same individuals who manage MHCA.
“Before ACED opened, it contacted BCBS about seeking Individual Case Management (TCM’) agreements. Under an Individual Case Management agreement, BCBS and the provider work together to design an individual contract for services that are otherwise not covered under the member’s health plan. Individual Case Management Agreements are discretionary and subject to the voluntary participation of BCBS, the member and the provider. On most occasions, BCBS declined to agree to an Individual Case Management Agreement with ACED.
“The contract between Blue Cross and MHCA requires that if MHCA subcontracts or otherwise delegates any of its health network functions it must be done by another contract authorized by BCBS. The contract also requires that MHCA must have contractual agreements with any providers it deems to be ‘in-network,’ and thus able to receive benefits from BCBS under the EPS network. APS is the only provider deemed by MHCA to be ‘in-network.’ ”

ACED opened its doors under the name Alabama Center for Eating Disorders and using the acronym ACED. Shortly thereafter, as the trial court noted, APS filed a trademark-infringement lawsuit against ACED, arguing that ACED’s name infringed on the name of APS’s eating-disorder center. ACED voluntarily changed its name to A Center for Eating Disorders so that it could continue to use the acronym ACED, and the trademark-infringement lawsuit was dismissed. After MHCA refused to allow ACED to apply as a services provider for the network of mental-health professionals treating patients insured by Blue Cross Blue Shield of Alabama (“Blue Cross”) with EPS benefits, ACED filed its own seven-count lawsuit against APS, MHCA, and Blue Cross. ACED alleged intentional interference with contractual or business relations (count I); defamation (count II); fraud, misrepresentation, and deceit (count III); breach of contract (count IV); interference with the healthcare-provider/patient relationship (count V); civil conspiracy (count VI); and a count seeking declaratory relief (count VII), in which ACED sought to have the trial court “enjoin [APS and MHCA], separately and severally, from employing artificial and improper restrictions on [ACED’s] business and patients seeking pre-certification or coverage/benefits; from engaging in conduct that disparages [ACED] and/or its staff; [and] from engaging in conduct that interferes with [ACED’s] Health Care Provider/Patient relationship.”

APS, MHCA, and Blue Cross initially filed motions to dismiss ACED’s complaint. The trial court denied those motions as to all counts except count III, which alleged fraud, misrepresentation, and deceit. As to count III, the trial court ordered ACED to file a more definite statement. When ACED filed nothing further, the trial court entered an order on January 6, 2010, dismissing count III as to all defendants with prejudice.

APS, MHCA, and Blue Cross then filed motions for a summary judgment; ACED opposed those motions. All parties filed evidence supporting their respective positions. The trial court heard what it described as “extensive oral arguments” on the summary-judgment motions on April 13, 2011. On April 19, 2011, the trial court entered a summary judgment for APS and MHCA as to count II (defamation). On June 29, 2011, the trial court entered detailed orders on the summary-judgment motions. As to Blue Cross, the trial court entered a summary judgment in its favor on all counts except count VII (seeking declaratory relief). As to APS and MHCA, the trial court entered a summary judgment in their favor as to counts IV (breach of contract) and V (interference with the health-care-provider/patient relationship). The trial court denied the summary-judgment motions as to count I (intentional interference with contractual/business relations) and count VI (conspiracy). The trial court made no ruling on count VII, the count seeking declaratory relief, in its June 29 order.

On October 13, 2011, the trial court entered an order finding that the evidence before it indicated that there was no justi-ciable controversy requiring declaratory relief in this case because, the court said, “a judgment of this Court would not affect [ACED’s] legal position and would not provide [ACED] with any relief. Additionally, [ACED] lacks standing to obtain the requested relief.” The trial court then entered a summary judgment in favor of APS and MHCA as to count VII. It also entered a summary judgment in favor of Blue Cross as to count VII and, because no other claims remained pending against Blue Cross, dismissed Blue Cross as a defendant with prejudice.

The case then proceeded to trial against APS and MHCA on counts I and VI of ACED’s complaint. Before trial, APS and MHCA filed an extensive motion in limine as to numerous items; ACED also filed a motion in limine. On November 9, 2011, the trial court entered an order responding to the items that were the subject of the motions in limine. The trial began on November 14 and concluded with a verdict in favor of APS and MHCA on November 18. The trial court had denied APS’s and MHCA’s motions for a JML made at the close of all the evidence. The trial court entered a judgment on the jury verdict on November 18.

ACED then filed a motion for a new trial. ACED argued that the trial court erred in excluding certain evidence pursuant to its pretrial order on the parties’ motions in limine. ACED concluded by arguing that the trial court’s exclusion of the evidence discussed in its motion prevented ACED “from showing the true manipulation of this sham network by no written agreement and the actual false statements made in later contracts.” After APS and MHCA responded to the motion for a new trial, the trial court heard argument on the motion. On January 26, 2012, the trial court entered an order granting ACED’s motion for a new trial and reinstating count IV (breach of contract) as to which the court had entered a summary judgment in favor of APS and MHCA. APS and MHCA appealed.

II. Standards of Review

A. Motion for a JML

“When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).”

Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003).

B. Motion for a New Trial

‘When the court grants a motion for a new trial on grounds other than a finding that the verdict is against the great weight or preponderance of the evidence, this Court’s review is limited.
“ ‘ “It is well established that a ruling on a motion for a new trial rests within the sound discretion of the trial judge. The exercise of that discretion carries with it a presumption of correctness, which will not be disturbed by this Court unless some legal right is abused and the record plainly and palpably shows the trial judge to be in error.” ’
“Curtis v. Faulkner Univ., 575 So.2d 1064, 1065-66 (Ala.1991) (quoting Kane v. Edward J. Woerner & Sons, Inc., 543 So.2d 693, 694 (Ala.1989), quoting in turn Hill v. Sherwood, 488 So.2d 1357, 1359 (1986)).”

Baptist Med. Ctr. Montclair v. Whitfield, 950 So.2d 1121, 1125-26 (Ala.2006).

III. Analysis

The elements of a claim of intentional interference with business relations are (1) the existence of a protectable business relationship; (2) of which APS and MHCA were aware; (8) to which APS and MHCA were strangers; and (4) with which APS and MHCA intentionally interfered; and (5) damage to ACED. White Sands Grp., LLC v. PRS II, LLC, 32 So.3d 5, 14 (Ala.2009). APS and MHCA first argue that the trial court erred when it denied their motions for a JML at the close of all the evidence. Because ACED failed to support each of the elements of intentional interference with a business relationship with substantial evidence, they argue, they were entitled to a JML as to that claim. They further argue that because they are entitled to a JML as to ACED’s claim of intentional interference with a business relationship, ACED’s conspiracy claim also fails.

The dispositive question presented by this appeal is whether ACED presented substantial evidence at trial of any act of intentional interference by APS or MHCA with ACED’s business relationships. APS and MHCA argue that they did not attempt to manipulate the market so that APS is MHCA’s only in-network provider for eating-disorder partial-hospitalization (“PHP”) services or to ensure that APS “gets all the business.” APS and MHCA’s brief, at 27. Instead, they say, “MHCA has simply made the business decision that, in order to provide the appropriate and required treatment to Blue Cross insureds with [expanded psychiatric services] benefits, it only needs one eating disorder PHP facility in its network of providers.” APS and MHCA’s brief, at 27-28.

APS and MHCA correctly state that this Court has consistently held that a mere refusal to deal is not an intentional interference with a business relationship, citing Axelroth v. Health Partners of Alabama, Inc., 720 So.2d 880, 886 (Ala.1998). APS and MHCA also rely on Denton v. Alabama Cotton Coop. Ass’n, 30 Ala.App. 429, 432-33, 7 So.2d 504, 507 (1942), in which the Court of Appeals held that “[e]very person has the right to deal or refuse to deal with whom he chooses.” Moreover, they say, Aabama courts cannot force a company to do business with another company because, they argue, Aabama law recognizes that a citizen of this state “is free to contract in any way he sees fit,” citing Kinmon v. J.P. King Auction Co., 290 Ala. 323, 325, 276 So.2d 569, 570 (1973). Because the business arrangement between APS and MHCA is within their rights, they argue, ACED’s claims fail as a matter of law. We agree.

APS and MHCA maintain that ACED failed to offer any evidence indicating that MHCA was obligated to include ACED in its approved-provider network for expanded-psychiatric-services policy coverage. They argue that ACED’s claim amounts to an argument that it is “not fair” that MHCA did not approve ACED as an in-network provider, and such a claim, they argue, does not create a valid cause of action. APS and MHCA contend that Renee Miller, ACED’s clinical director and one of the two members of the limited liability corporation, admitted that MHCA had no obligation to do business with ACED and that she knew what ACED’s status with Blue Cross would be before she formed ACED. Furthermore, they argue, Aabama is not an “any willing provider” state in which health insurers are obligated to include all providers in their networks, but, instead, Aabama law permits health insurers to maintain exclusive-provider networks, citing Blue Cross & Blue Shield of Alabama v. Nielsen, 917 F.Supp. 1532 (N.D.Ala.1996). Moreover, APS and MHCA say, there is no evidence indicating that APS or MHCA directed patients away from ACED. They contend that Miller testified only that she thought Blue Cross, APS, and MHCA were acting in collusion and that ACED failed to present any evidence from patients that could establish that APS or MHCA had interfered with their access to ACED.

After reviewing the record in this case, we are unable to find any evidence to suggest that APS or MHCA intentionally interfered with ACED’s business relationships. During Miller’s cross-examination by one of the attorneys for APS and MHCA, she testified that she had no evidence to confirm that APS and MHCA had interfered with ACED’s business and had instructed patients to leave ACED’s program and to attend APS’s program. Miller further testified that MHCA had no obligation to do business with ACED. Based on the record before us, we conclude that ACED simply argues that it is unfair that APS and MHCA have chosen not to contract with ACED for preferred in-network provider services. This does not constitute evidence of intentional interference with an existing business relationship. Furthermore, APS and MHCA have no legal obligation to do business with ACED. Axelroth, 720 So.2d at 886. Consequently, we conclude that, as a matter of law, ACED’s intentional-interference-with-business-relations claim should not have been submitted to the jury. APS and MHCA were entitled to a JML as to that claim.

Likewise, because APS and MHCA were entitled to a JML as to ACED’s intentional-interference-with-business-relations claim, ACED’s conspiracy claim should not have been submitted to the jury. Alabama law is clear that a conspiracy “is not an independent cause of action; therefore, when alleging conspiracy, a plaintiff must have a viable underlying cause of action.” Drill Parts & Serv. Co. v. Joy Mfg. Co., 619 So.2d 1280, 1290 (Ala.1993) (citing Allied Supply Co. v. Brown, 585 So.2d 33, 36 (Ala.1991)). Because ACED did not prove its underlying cause of action (intentional interference with business relations), APS and MHCA also were entitled to a JML as to ACED’s conspiracy claim.

We conclude that ACED failed to present substantial evidence showing that APS or MHCA intentionally interfered with ACED’s business relations. Because, as a matter of law, the evidence does not support a finding of intentional interference, the trial court erred in denying the motion for a JML filed by APS and MHCA at the close of all the evidence as to ACED’s intentional-interference-with-business-relations claim and its conspiracy claim. Therefore, those claims should not have been submitted to the jury, and the trial court’s order denying APS’s and MHCA’s motions for a JML is due to be reversed.

We next address whether the trial court should have granted ACED’s motion for a new trial. Because we hold that the trial court erred when it submitted ACED’s two remaining claims to the jury, we further hold that the trial court erred when it granted ACED’s motion for a new trial and reinstated ACED’s breach-of-contract claim.

IV. Conclusion

We reverse the trial court’s order denying APS’s and MHCA’s motions for a JML as to ACED’s intentional-mterference-with-business-relations and conspiracy claims, and we reverse the trial court’s order granting ACED’s motion for a new trial. We remand the cause and direct the trial court to enter a JML in favor of APS and MHCA on ACED’s remaining two counts. Because we conclude that the trial court should have entered a JML as to ACED’s remaining two claims, we preter-mit consideration of the other arguments made by the parties.

REVERSED AND REMANDED.

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

MOORE, C.J., dissents.

WISE, J., recuses herself.

      1. The "Joint Commission” provides nationally recognized accreditation credentials for health-care organizations and programs in the United States.

      . "Q. Ms. Miller, what obligates MHCA to do business with your company?
      "A. There is no obligation.”


source: Caselaw Access Project

author: THOMAS, Judge. MOORE, Judge,

license: Public Domain

text:
    BELLA INVESTMENTS, INC. v. MULTI FAMILY SERVICES, INC.
    2120478.
    Court of Civil Appeals of Alabama.
    Nov. 22, 2013.
    Certiorari Denied Feb. 14, 2014 Alabama Supreme Court 1130279.

      T. Blake Liveoak of Liveoak & Boyles, LLC, Birmingham, for appellant.
    Kile T. Turner and W.M. Bains Fleming III of Norman, Wood, Kendrick & Turner, Birmingham, for appellee.
   THOMAS, Judge.

Bella Investments, Inc. (“Bella”), appeals from a judgment as a matter of law (“JML”) entered by the Jefferson Circuit Court (“the trial court”) in favor of Multi Family Services, Inc. (“MFS”), on Bella’s negligent-construction and fraudulent-suppression claims. Additionally, Bella appeals the trial court’s denial of its motion for a JML on its negligent-construction and fraudulent-suppression claims.

This is the third time these parties have been before this court. See Bella Invs., Inc. v. Multi Family Servs., Inc., 80 So.3d 921 (Ala.Civ.App.2011) (“Bella /”); and Bella Invs., Inc. v. Multi Family Servs., Inc., 97 So.3d 787 (Ala.Civ.App.2012) (“Bella II”). The procedural history of this ease is set forth in Bella II:

“ Tn June 2003, Bella entered into a contract with MFS for MFS to serve as the general contractor for the construction of a hotel in Gardendale. The contract between the parties included a warranty provision, warranting MFS’s work for one year from the issuance of the certificate of occupancy. MFS, in turn, contracted with various other entities, including David & Company Architects, Inc. (“David & Company”), to serve as the architects for the project and Danny Hawkins d/b/a Danny Hawkins Floor Covering (“Hawkins”) to serve as a subcontractor to install tile flooring in the hotel.
“ ‘The building inspector for the City of Gardendale inspected the hotel on April 5, 2006, and, that same day, issued a certificate of occupancy for the hotel. At the time that the certificate of occupancy was issued, several issues, including cracking in some of the floor tiles, remained outstanding and had been listed on a punch list of items for MFS to remedy. Bella also made requests under the warranty provision of the contract for MFS to repair cracked floor tiles in the hotel. According to Bella, problems with cracking floor tiles continued and MFS failed to remedy the issue.
‘“On August 4, 2008, Bella sued MFS, C. Boyd Edgerton, in his individual capacity, David & Company, and various fictitiously named defendants in the Marshall Circuit Court. In its complaint, Bella asserted claims of negligence/wantonness, negligent hiring and supervision, suppression, and breach of contract. Bella also asserted that MFS’s subcontractors were liable to Bella because Bella was a third-party beneficiary to the contracts between MFS and the subcontractors. Bella then moved the Marshall Circuit Court to transfer the action to the Jefferson Circuit Court; MFS and Edgerton joined Bella’s motion to transfer the action. On September, 30, 2008, the Marshall Circuit Court transferred the action to the Jefferson Circuit Court....
“ ‘On November 3, 2008, Bella amended its complaint, reasserting its claims and substituting Layne Structural, Gonzales Strength & Associates, Inc., Tusco Fence, Inc., and Whiten Pools for some of the fictitiously named defendants. MFS answered Bella’s complaint, denying all its material allegations and asserting certain affirmative defenses, including the statute of limitations. MFS also asserted a counterclaim against Bella, alleging that Bella had breached its contract with MFS by failing to pay MFS the full amount owed under the contract. In addition, MFS asserted a third-party complaint against Sur-esh Parmar and Bharti Parmar, in their individual capacities, alleging that the Parmars had executed a note in favor of MFS, which they had not paid. On May 5, 2010, Bella filed a second amended complaint, reasserting its claims and substituting Hawkins for one of the fictitiously named defendants.
“‘On June 14, 2010, MFS moved the trial court for a summary judgment on all Bella’s claims against it. MFS asserted three bases in support of its summary-judgment motion: (1) that all Bella’s claims were barred by the applicable statute of limitations, as provided in § 6-5-221, Ala.Code 1975; (2) that Bella did not provide MFS with notice of its claims, in contravention of the contract between the parties; and (3) that there was no genuine issue of material fact concerning Bella’s suppression claim. MFS also submitted evidence in support of its summary-judgment motion. Bella filed a brief in opposition to MFS’s summary-judgment motion and submitted evidence in support of its brief in opposition.
“ ‘On September 23, 2010, the trial court entered a summary judgment in favor of MFS on all Bella’s claims against it. In its order, the trial court stated that it had determined, among other things, that Bella’s claims were barred by the statute of limitations. The summary-judgment order also stated that “[t]his order shall not affect [Bella’s] claims against Defendants David & Company ... and [Hawkins],” the only other defendants still remaining in the action.... Bella filed a purported postjudgment motion requesting that the trial court alter, amend, or vacate its summary-judgment order, which the trial court denied. Bella subsequently appealed to the Alabama Supreme Court. Our supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.’
“Bella [I], 80 So.3d at 922-24 (footnotes omitted).
“In Bella [7], we dismissed Bella’s appeal as having been taken from a non-final judgment because several claims against other defendants as well as MFS’s counterclaim and third-party claims were still pending in the trial court and the trial court had failed to certify the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Id. at 924.
“After this court issued a certificate of judgment in Bella [7], on October 13, 2011, MFS filed a motion to dismiss its counterclaim against Bella and its third-party claims against Suresh Parmar and Bharti Parmar without prejudice. Additionally, on October 13, 2011, Bella filed a stipulation of dismissal with the trial court, noting that it stipulated to the dismissal of all its claims against David & Company and Hawkins. That same day the trial court entered an order dismissing MFS’s counterclaim and third-party claims and Bella’s claims against David & Company and Hawkins. On October 28, 2011, Bella filed a timely notice of appeal; its appeal was transferred by the supreme court to this court, pursuant to Ala.Code 1975, § 12-2-7(6).”

Bella II, 97 So.3d at 790-91.

In addressing the appeal in Bella II, this court affirmed “the trial court’s summary judgment in favor of MFS on Bella’s wantonness claim, third-party-beneficiary claim, negligent-hiring, -supervision, and -training claim, breach-of-contract claim, and negligent-construction claim regarding the widespread cracking of tile flooring.” Id. at 800. However, we reversed the “the trial court’s summary judgment in favor of MFS on Bella’s [fraudulent-]suppression claim and its negligent-construction claim” insofar as it related to defects with the doors, buckling floors, and improper installation of the fiber-cement siding, and we remanded the action for further proceedings. Id. On remand, the trial court held a jury trial regarding Bella’s fraudulent-suppression claim and its negligent-construction claim regarding the floors, the doors, and the siding.

The testimony revealed the following facts pertinent to this appeal. Suresh Par-mar testified that he is one of the two principals of Bella Investments; his wife, Bharti Parmar, is the other principal. He testified that Bella was formed to construct the Microtel Inn in Gardendale (“the hotel”). Suresh testified that the total project cost $4,000,000 and that the total contract price between Bella and MFS for construction of the hotel was $2,275,408. He further testified that Bella and MFS reached an agreement that the construction price would be $2,275,408 around 2003 but that, due to financing issues, construction of the hotel did not begin until 2005. However, he testified that MFS honored the 2003 construction-contract price of $2,275,408 in 2005. He testified that the hotel was completed on time, that the hotel’s certificate of occupancy was issued on April 5, 2006, and that April 19, 2006, was the hotel’s first day of business.

Suresh testified that he had relied on MFS to follow the applicable building codes and the building plans throughout its construction of the hotel. He further testified that, at the end of construction, Bella had provided MFS with a “punch list” identifying items to be rectified and that he was not aware of whether MFS had made an attempt to correct those items, although, he said, MFS had indicated that it intended to meet its obligations to Bella in an e-mail exchange. He testified that the punch list did not include problems with the siding, the concrete flooring system, or the installation of the doors. Additionally, he testified that MFS never informed him that the siding had been misapplied, that the flooring system was improper, or that the doors had not been installed correctly and that he would have expected MFS, the general contractor, to tell him that information. He also testified that operational issues could impact the value or income of the hotel.

Richard Laframboise testified that he is employed at E-services, Inc., that he has an Alabama home-inspection license, and that he is certified by the International Code Council as a building inspector. He testified that he had inspected the hotel on August 5, 2010, and then again on October 31, 2012. He testified that his inspections revealed that a flooring membrane, or felt paper, was missing on the second and third floors, that the siding and flashing on the exterior of the hotel had been improperly installed, and that framing issues had caused problems with the doors within the hotel. He opined that the missing felt paper had led to the widespread cracking of the lightweight concrete on the second and third floors. Laframboise also testified that there was no way to determine the amount of damage to the hotel caused by the improper installation of the siding without removing all the siding.

Rayford Smith testified that he had been retained by MFS, that he has a general contractor’s license, and that he had performed an inspection of the hotel. He opined that, based on his inspection, the cost to repair the issues with the siding, the floors, and the doors at the hotel was approximately $116,029.91.

Shane McMillan testified that he is the vice president of Watermark Restoration and that Watermark Restoration does general contracting and work on multifamily dwellings, such a hotels and other commercial structures, across the southeast. He testified that he is a licensed general contractor in the State of Alabama and that he had been to the hotel site about 7 to 10 times to inspect the hotel and to perform destructive testing in one hotel room. He opined that, based on his testing, the estimated cost to repair the damage caused by the defective floors, doors, and siding was $1,106,519.02. Specifically, he testified that the cost to repair “the exterior” would be approximately $207,000, that the cost to repair the floors would be approximately $499,010, that the cost to repair “the interior” would be approximately $114,498.60, and that the cost for a dumpster and a superintendent to be on the site would be approximately $45,131.95; he also testified that Watermark Restoration would expect some profit to perform the repair work on the hotel and that his estimate was based on the E-Services report compiled by Laf-ramboise.

Boyd Edgerton testified he is a principal of MFS. He testified that the contract price between Bella and MFS for construction of the hotel was $2,275,408 and that MFS had been paid in full for the construction project. He testified that he did not have any knowledge that felt paper was used only on very small portions on the second and third floors before pouring the lightweight concrete.

Dennis Key testified that he is the owner of Key and Company and that he is a real-estate appraiser and a certified general appraiser. He testified that he had been informed that the contract price to construct the hotel was $2,275,408 and that he had used that number as the “presumed” value of the hotel for appraisal purposes; that is, Key testified that he did not determine a “before value” of the hotel. Specifically, he testified that, using his methodology, the presumed before value of the hotel was $2,275,000 and that the present-day value would be reduced by at least the repair costs, which, he was told, would be $1,106,519.02. He further testified that the present-day value could be reduced by more than just the repair costs. Key testified that he had never been to the hotel, that he had not consulted anyone in the hotel business to do his valuation, and that he had seen the estimated repair costs for the first time on the day of trial. Key testified that many factors, such as rates charged, competition, and hotel management, can affect the market value of a commercial property such as a hotel. On cross-examination, he testified that being informed that other testimony indicated that repair costs would be in the $115,000 to $116,000 range could “impact” his valuation. He further explained that the number he was talking about was “hypothetical” and that he was just trying to explain the “methodologies” used to value a property. Specifically, he testified: “I am here, as I said, to state the methodology of which damages are applied. I know nothing about this specific property other than hypothetical opinion that we were talking about here as it would apply in a certain condition of damages to property and the methodology as such.” He further testified that “I didn’t do a valuation. I did a methodology explanation and that’s all I did.”

At the close of Bella’s case, MFS moved for a JML. Bella also moved for a JML. The trial court heard oral argument concerning the motions, and, on January 31, 2013, the trial court entered a JML in favor of MFS on Bella’s claims. Bella timely appealed the trial court’s decision to this court on March 8, 2013. This court transferred the appeal to our supreme court for lack of jurisdiction. Our supreme court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

On appeal, Bella argues that the trial court’s JML is due to be reversed because, it contends, it presented sufficient evidence of damages to the hotel to support its negligent-construction claim. Additionally, it contends that the trial court erred as a matter of law in entering a JML on its fraudulent-suppression claim because, it says, the trial court applied the incorrect elements in examining that claim. Moreover, Bella contends that it presented evidence sufficient to warrant a JML in its favor on its claims.

Our standard of review of a JML is well settled.

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

Leonard v. Cunningham, 4 So.3d 1181, 1184 (Ala.Civ.App.2008).

First, Bella argues that the JML in favor of MFS on its negligent-construction claim is due to be reversed, because, it says, it presented sufficient evidence of damages. Bella’s first argument is twofold. Specifically, it contends that the evidence of repair costs is sufficient under applicable Alabama law to establish damages and second that, even assuming that evidence of repair costs is not sufficient, the evidence presented, taken in the light most favorable to it, was sufficient to allow the jury to infer the market value of the hotel both before and after the damage (“the before and after values”). We disagree.

Initially, we address Bella’s contention that evidence of repair costs is sufficient evidence of damages on its negligent-construction claim. The negligent-construction claim is a tort claim, and it is well settled that “[t]he elements of a negligence claim are .a duty, a breach of that duty, causation, and damage.” Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 679 (Ala.2001) (citing AALAR, Ltd., Inc. v. Francis, 716 So.2d 1141, 1144 (Ala.1998)). Thus, evidence of damages is an essential element of the negligent-construction claim. See Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330, 335 (Ala.2006) (“Damages are an essential element of the tort of negligence.”). In its motion for a JML, MFS asserted that Bella had failed to present evidence of damages, an essential element of its negligent-construction claim, and, thus, that MFS was entitled to a JML. Specifically, MFS argued that, under Alabama law, “[t]he proper measure of damages for property injury in a tort action is the difference between the fair market value of the property before the injury and the fair market value after the injury.” Nelson Bros., Inc. v. Busby, 513 So.2d 1015, 1017 (Ala.1987) (citing Dooley v. Ard Oil Co., 444 So.2d 847 (Ala.1983)). In contrast, at trial and on appeal, Bella contends that evidence of cost of repair is sufficient to establish the damages under the facts of this case. In support of this contention, Bella cites QORE, Inc. d/b/a QORE Property Sciences v. Bradford Building Co., 25 So.3d 1116 (Ala.2009), IMAC Energy, Inc. v. Tittle, 590 So.2d 163 (Ala.1991), and Birmingham Coal & Coke Co. v. Johnson, 10 So.3d 993 (Ala.2008). We will examine these cases in turn.

In QORE, our supreme court rejected QORE’s argument that the trial court had erred in denying its motion for a JML and affirmed the judgment on the jury’s verdict in favor of Bradford on Bradford’s breach-of-contract claim regarding the construction of a Walgreen’s store. 25 So.3d 1116. In affirming the judgment, our supreme court considered whether Bradford had presented sufficient evidence of damages and concluded that the evidence indicating that the damage would not have occurred had the contract not been breached, coupled with the evidence of repair costs, was sufficient to support the damages awarded by the jury. Id. at 1126-27. However, the opinion in that case is not instructive because, unlike the case at hand, it analyzed a breach-of-contract claim, which was not before the jury in this case. See Bella II, 97 So.3d at 797-98 (affirming the trial court’s summary judgment in favor of MFS on Bella’s breach-of-contract claim).

In IMAC Energy, 590 So.2d at 168, our supreme court affirmed the jury’s award of damages resulting from the Tittles’ claims of negligence and wantonness, in which they had sought compensation for damage they had sustained to their house and property as a result of IMAC Energy’s blasting operations occurring near the house. In affirming the jury’s damages award, our supreme court noted that “[t]he proper measure of compensatory damages in a tort action based on damage to real property is the difference between the fair market value of the property immediately before the damage and the fair market value immediately after the damage.” Id. at 168. In support of their negligence claim, the Tittles presented evidence indicating

“that in January 1983, they paid $41,300 for the construction of their residence and that on August 3, 1988, after the blasting had ceased, the Tittles obtained a repair estimate of $8,500. Although the Tittles presented no evidence indicating the difference in the fair market value of their property before the blast-mg and its fair market value after the blasting, they testified that they were unable to obtain an appraisal of their residence after litigation had begun.”

Id. Thus, our supreme court noted that the testimony indicated that the Tittles were unable to get an appraisal of the fair market value of the house after the damage had occurred but also indicated the fair market value of the house before the damage occurred.

In the present case, Bella had an appraiser testify as an expert, but he testified only as to his “methodology” based upon “presumed” numbers. Specifically, Key testified that “I didn’t do a valuation. I did a methodology explanation and that’s all I did.” Key was questioned about the factors that are used to determine a valuation of a commercial property like a hotel; Bella’s counsel offered to stipulate that “a number of different factors could affect the value of the hotel.” Key specifically mentioned occupancy rates and the presence of pests, like insects and vermin. Without evidence of the expected occupancy rates, the cleanliness of the hotel, and a myriad of other factors, the jury lacked evidence from which to extrapolate the fair market value of the hotel at the time it was completed, had it been properly constructed. The only evidence concerning the value of the hotel was the $2,275,408 contract price agreed upon in 2008, as opposed to the fair market value of the hotel upon completion in 2006, and that amount did not take into account any of the myriad factors that are required to perform a valuation of a commercial property like a hotel. Thus, unlike the Tittles in IMAC Energy, Bella did not present evidence of the fair market value of the property before the alleged injury. Further, Bella failed to prove that it was unable to ascertain information regarding the before or after values of the hotel or that it could not secure a valuation of the fair market value of the hotel after the damage occurred. Thus, we conclude that IMAC Energy is distinguishable from the case at hand.

In Johnson, our supreme court affirmed a trial court’s award of damages to the plaintiffs for blasting operations that damaged 10 houses. On appeal, Birmingham Coal contended that the damages award was unsupported by the evidence because, it argued, “six plaintiffs did not express an opinion on the diminution, if any, in the value of their houses and because the trial court based its award on evidence of repair costs and diminution in value.” Johnson, 10 So.3d at 998. In support of this argument, Birmingham Coal cited Poffenbarger v. Merit Energy Co., 972 So.2d 792 (Ala.2007), which our supreme court concluded was inapposite. Thus, our supreme court affirmed the trial court’s award of damages because, it determined, “Birmingham Coal [failed to] present to [it] any other argument or authority indicating that the trial court’s method of calculating the property damages is in error.” Johnson, 10 So.3d at 998. Thus, Johnson, too, is unlike the case at hand, in which MFS presented sufficient authority at trial and before this court to support a JML in its favor on Bella’s negligent-construction claim because of the insufficiency of the evidence regarding Bella’s damages.

Next, we consider Bella’s argument that the trial court erred in granting a JML in favor of MFS because, it says, it presented sufficient evidence from which the jury could have inferred the before and after values of the hotel. In support of this argument, Bella highlights the testimony of Suresh Parmar that the hotel project was a $4,000,000 project and that the contract between Bella and MFS to construct the hotel was in the amount of $2,275,408. Additionally, Bella highlights Key’s testimony regarding the methodology of how to assess damages as an appraiser, Smith’s testimony that the repair cost was $116,029.61, and McMillan’s testimony that the cost to repair the damage would be $1,106,519.02. Bella asserts that the aforementioned testimony provided sufficient evidence from which a jury could have inferred the before and after value of the hotel. We find this argument misguided.

Initially, we note that Bella supports this argument that an inference regarding the before and after values of the hotel would be sufficient with only one general citation to West v. Founders Life Assurance Co. of Florida, 547 So.2d 870 (Ala.1989), which is a case regarding the sufficiency of the evidence in the context of a summary judgment. However, even if we excuse the lack of specific authority, Bella’s argument fails.

The record undisputedly indicated that the contract price of $2,275,408 was decided upon between Bella and MFS to construct the hotel in 2003 but that the construction did not begin until 2005 due to issues with financing. The evidence also undisputedly indicates that MFS honored the 2003 contract price in 2005. Thus, the evidence indicated that $2,275,408 was merely a contract price agreed upon in 2003 as opposed to the fair market value of the hotel upon completion in 2006. See Jenelle Mims Marsh, Alabama Law of Damages § 33:1 (6th ed. 2012) (“ ‘Market value’ is defined as the price at which a willing seller would sell and a willing buyer would buy, neither being compelled to sell or to buy.”). Moreover, we note that Key did not testify as to the hotel’s before and after values; rather, he testified only as to a methodology to value the hotel based on a presumed initial market value based upon the 2003 contract price and estimated repair costs. Key further testified that other factors such as income and nearby competitors are relevant factors to consider when conducting a valuation on a commercial property such as the hotel. Additionally, Suresh Parmar did not testify regarding the value of the hotel, although he was allowed to do so because, as a principal of Bella, he was an owner of the hotel. See Alabama Power Co. v. Cummings, 466 So.2d 99, 102-03 (Ala.1985) (“The general rule is that an owner of real estate is competent to testify as to its value.”). Accordingly, although repair costs is a factor to consider in determining the after-damage fair market value of real property, see Kerns v. Pro-Foam of South Alabama, 572 F.Supp.2d 1303, 1305-06 (S.D.Ala.2007), we cannot conclude that the evidence presented was sufficient to provide the jury with a reasonable basis upon which it could determine the before and after values of the hotel so as to assess the appropriate amount of damages under Alabama law. See Parsons v. Aaron, 849 So.2d 932, 949 (Ala.2002) (“[D]am-ages may not be awarded where they are remote or speculative. A jury must have some reasonable basis for the amount of its award.”).

Based on the cases cited by both Bella and MFS it is clear that, pursuant to Alabama law, the law regarding damage to real property in a negligence action is well settled. Specifically,

“[t]he proper measure of compensatory damages in a tort action based on damage to real property is the difference between the fair market value of the property immediately before the damage and the fair market value immediately after the damage. Nelson Brothers, Inc. v. Busby, 513 So.2d 1015, 1017 (Ala.1987); Dooley v. Ard Oil Co., 444 So.2d 847, 848 (Ala.1984). Although mathematical certainty is not required, a jury cannot be left to speculate as to the amount of damages, but ‘ “[t]his does not mean that the plaintiff must prove damages to a mathematical certainty or measure them by a money standard. Rather, he must produce evidence tending to show the extent of damages as a matter of just and reasonable inference.” C. Gamble, Alabama Law of Damages § 7-1 (2d ed. 1988).’ Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So.2d 812, 820 (Ala.1988). (Emphasis added.)”

IMAC Energy, 590 So.2d at 168.

In this case, Bella failed to present evidence either of the fair market value of the hotel before the damage or of the fair market value after the damage. Additionally, we cannot conclude that evidence of repair costs alone is sufficient to support a damages award regarding the negligent construction of the hotel under the facts of this case. Accordingly, although it presented evidence of the 2003 contract price for the construction of the hotel, of repair costs, and of the methodology to be used to value the hotel based on the repair costs, Bella failed to adduce sufficient evidence to establish its damages under Alabama law. Furthermore, Bella’s argument that the evidence presented could support an inference of the fair market values of the hotel before and after the damage, thus indicating the hotel’s diminution in value, fails. See Poffenbarger, 972 So.2d at 801 (stating “that the appropriate measure of direct, compensatory damages to real property generally is the diminution in the value of that property, even when the cost to remediate the property exceeds the diminution in the value thereof’); IMAC Energy, 590 So.2d at 168 (affirming damages award in property-damage case as being based on sufficient evidence where plaintiffs made no direct showing of difference in fair market value before and after defendant’s blasting conduct but did submit evidence of amount paid for property and repair estimate for the property); Southern Ry. Co. v. Slade, 192 Ala. 568, 573, 68 So. 867, 870 (1915) (“While the reasonable cost of the burned building, or of similar new buildings, is not the criterion of value, yet evidence thereof is relevant in support of opinion evidence as to actual value....”); Alabama Great Southern R.R. v. Johnston, 128 Ala. 283, 295, 29 So. 771, 775 (1901) (“Though the cost of building new houses of the kind burned was not the criterion by which to measure the damage caused by their destruction, evidence of such cost was relevant as tending to throw light on their value.... ”); see generally Arrick v. Fanning, 35 Ala.App. 409, 413, 47 So.2d 708, 712 (1950) (stating, in a case involving damage to personal property, that “evidence of the amount required to make necessary repairs is an evidential factor which the jury is authorized to consider in arriving at the true measure of damages”); Alabama Pattern Jury Instructions-Civil § 11.38 (3d ed. 2012) (similar). Thus, because Bella failed to present sufficient evidence of damages, the trial court properly entered a JML in favor of MFS on Bella’s negligent-construction claim.

Bella next contends that the trial court erred in granting a JML in favor of MFS on its fraudulent-suppression claim. Specifically, it asserts that the trial court erred because, it contends, the trial court applied the incorrect elements of a fraudulent-suppression claim, as indicated by its judgment, which states that “a plaintiff is required to show that the defendant made a false representation concerning a material fact.” It argues that evidence of a false representation is not required.

“The elements of a cause of action for fraudulent suppression are: (1) a duty on the part of the defendant to disclose facts; (2) concealment or nondisclosure of material facts by the defendant; (3) inducement of the plaintiff to act; (4) action by the plaintiff to his or her injury.” Lambert v. Mail Handlers Benefit Plan, 682 So.2d 61, 63 (Ala.1996). We note that the second element — “concealment or nondisclosure of material facts by the defendant” — differs in wording and in substance from the trial court’s diction — “false representation.” However, the trial court’s incorrect diction is of no consequence in this case. As noted above, we review a trial court’s ruling either granting or denying a JML under the same standard as the trial court applied — i.e., we ‘“must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury.’ ” Leonard v. Cunningham, 4 So.3d at 1184.

In this case, the trial court granted a motion in limine filed by MFS to restrict Bella from presenting Danny Hawkins’s verified answer, upon which this court relied in reversing the summary judgment on the fraudulent-suppression claim. See Bella II, 97 So.3d at 798. Thus, that pleading was not before the jury. Additionally, the testimony failed to indicate that MFS had concealed or failed to disclose any material fact. Instead, Edger-ton, the only witness associated with MFS, testified that he did not have any knowledge as to whether felt paper was used on only very small portions on the second and third floors before pouring the lightweight concrete. Thus, Bella presented no testimony indicating that MFS was aware that the usage of lightweight concrete without the accompanying felt paper would cause cracking throughout the concrete floors on the second and third floors of the hotel. Additionally, the record is devoid of any testimony regarding any concealment or nondisclosure regarding issues with the hotel’s siding or doors. On appeal, Bella contends that because MFS was the general contractor and because, based on the destructive testing, experts found deficiencies in the siding, doors, and floors of the hotel, MFS either knew or should have known that it had improperly constructed the hotel. Essentially, Bella’s argument on appeal concerning fraudulent suppression focuses only on what it alleges MFS should have both known and disclosed but that Bella itself could have discovered through its employment of independent architects, which it had on the construction site. See Richard Brown Auction & Real Estate, Inc. v. Brown, 583 So.2d 1313 (Ala.1991) (holding that a plaintiff has no valid claim of suppression concerning a fact that the plaintiff could have ascertained). Thus, we affirm the trial court’s JML in favor of MFS on Bella’s fraudulent-suppression claim.

Conclusion

Because we conclude that the trial court properly granted a JML in favor of MFS on Bella’s negligent-construction and fraudulent-suppression claims, we preter-mit consideration of Bella’s final argument that the trial court should have granted a JML in its favor on those claims. Therefore, we affirm the trial court’s judgment.

AFFIRMED.

PITTMAN and DONALDSON, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.

MOORE, J., concurs in part and dissents in part, with writing.

MOORE, Judge,

concurring in part and dissenting in part.

I respectfully dissent from the main opinion’s affirmance of the judgment as a matter of law entered by the Jefferson Circuit Court (“the trial court”) in favor of Multi Family Services, Inc. (“MFS”), on the claim alleging negligent construction of a hotel brought against MFS by Bella Investments, Inc. (“Bella”), because I conclude that there was sufficient evidence for a jury to infer the fair market value of the hotel owned by Bella before and after the damage occurred.

In IMAC Energy, Inc. v. Tittle, 590 So.2d 163 (Ala.1991), the Alabama Supreme Court held that a jury’s verdict awarding damages to the plaintiffs based on damage to their residence was supported by the evidence. The supreme court reasoned:

“[T]he Tittles produced evidence that in January 1983, they paid $41,300 for the construction of their residence and that on August 3,1988, after the blasting had ceased, the Tittles obtained a repair estimate of $8,500. Although the Tittles presented no evidence indicating the difference in the fair market value of their property before the blasting and its fair market value after the blasting, they testified that they were unable to obtain an appraisal of their residence after litigation had begun. They introduced evidence that they experienced unannounced detonations conducted by IMAC; that they had to suffer the bad smell and foul taste of their formerly clear well water; that their daughter’s hair turned orange as a result of the polluted water; that the polluted water caused their toilet bowls to turn black; that the poor water quality forced them to purchase a water purification system at a cost of $2,495; and that they had to endure, for over a two-year period, the constant anxiety of unannounced detonations by IMAC. We hold that this evidence sufficiently supports the jury’s verdict of $60,000 in compensatory damages as a just and reasonable inference from the evidence presented to support count four of the Tittles complaint.”

590 So.2d at 168-69. The supreme court also discussed Dooley v. Ard Oil Co., 444 So.2d 847, 848 (Ala.1983), stating:

“In Dooley, the jury awarded the property owners $70,000 in compensatory damages after the owners presented evidence that the purchase price for the property and its contents had been $45,000 and that the building and its contents were insured for $40,000. The owners presented further evidence showing that the ‘repair or replacement value’ of the property was between $120,000 and $174,000. This Court affirmed a judgment based on the jury’s damages award of $70,000.”

590 So.2d at 168. Similarly, in the present case, I conclude that the difference in the fair market values of the hotel before and after the damage occurred could be inferred from the evidence presented at the trial in the case, specifically the evidence indicating the contract price for building the hotel; the testimony of Dennis Key, a real-estate appraiser and certified general appraiser, who testified that the present day value of the hotel would be reduced by at least the repair costs; and the evidence regarding the repair costs. Therefore, I would reverse the judgment as a matter of law entered by the trial court on the negligent-construction claim. I concur to affirm the judgment as a matter of law entered in favor of MFS on Bella’s fraudulent-suppression claim.


author: PER CURIAM. THOMAS, Judge, MOORE, Judge,

text:
    Ex parte M.M.T. (In re M.B. v. M.M.T.).
    2130069.
    Court of Civil Appeals of Alabama.
    Jan. 31, 2014.

      Daniel H. Chambers, Birmingham, for petitioner.
    Stephen P. Bussman and Stanna Crowe Guice of Bussman & Guice, PC, Fort Payne, for respondent.
   PER CURIAM.

M.M.T. (“the mother”) petitions for a writ of mandamus directing the DeKalb Juvenile Court (“the juvenile court”) to enter an order dismissing the child-custody proceeding filed by M.B. (“the father”). We grant the petition and issue the writ.

Before their marriage, the parties and the mother’s older child from another relationship resided with the father’s family in Alabama. During that time the mother became pregnant with R.D.B. (“the child”). Thereafter, the father, who was serving in the United States Army, was given notice that he was to be stationed in Colorado; therefore, the parties moved to Colorado, where they were married on October 3, 2012, and where the child was born on October 30, 2012.

The father was discharged from the military on January 18, 2013, and on February 15, 2013, the mother, the father, the mother’s older child, and the child traveled to Alabama. The child had never been in Alabama before February 15, 2013. That same evening the parties had an argument regarding the purpose of the trip from Colorado to Alabama. The mother and the mother’s older child returned to Colorado on February 18, 2013. The child remained in Alabama with the father.

On February 19, 2013, the mother filed a petition in the El Paso County District Court of Colorado (“the Colorado court”) seeking a divorce from the father and implementation of “abduction prevention measures.” The materials included for our review include an affidavit indicating that the father was served with the mother’s petition on February 22, 2013. On February 21, 2013, the father filed a petition for emergency custody of the child in the juvenile court, in which he alleged that the mother had abandoned the child after the mother had displayed erratic behavior. The father’s petition indicated that the mother had “left the state” but did not assert that the juvenile court had acquired jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), § 30-3B-101 et seq., Ala.Code 1975. See § 30-3B-204, Ala. Code 1975. That same day the father’s attorney filed an affidavit, which stated that “no effort ha[d] been made to notify the [mother] of this filing due to the erratic behavior displayed by the [mother,] which was related to me by [the father].” The juvenile court entered an order awarding ex parte temporary emergency custody of the child to the father on February 28, 2013; among the exhibits attached to the mother’s petition for the writ of mandamus is a certified-mail receipt for a summons and a copy of the father’s petition that was served upon the mother that same day. At the time of the parties’ filings, the child was almost four months old and had been in Alabama for less than one week.

On March 5, 2018, a hearing was held in the Colorado court, which the father attended telephonically. On March 11, 2013, the father amended his petition in the juvenile court to seek a divorce from the mother and requested a transfer of the action to the DeKalb Circuit Court (“the circuit court”). According to the juvenile court’s October 9, 2013, judgment, the juvenile court was aware that the mother had filed a petition in the Colorado court at some time before March 21, 2013, because it states that a conference call with the Colorado court that was scheduled for that date “did not take place.” On April 11, 2013, the mother, acting pro se, filed a response to the father’s motion to transfer the action, in which she argued that the juvenile court lacked jurisdiction over the father’s action pursuant to the UCCJEA. On April 25, 2013, the juvenile court entered an order scheduling a hearing.

On May 23, 2013, the Colorado court entered a judgment determining that Colorado was the child’s home state pursuant to the UCCJEA, awarding temporary custody of the child to the mother, requiring that the child be returned to Colorado that same day, and noting that the juvenile-court judge had not returned its telephone calls. Thereafter, the juvenile court and the Colorado court communicated and agreed to hold a UCCJEA conference on June 4, 2013. The juvenile court informed the Colorado court that there might be another related action filed in the circuit court.

The mother’s attorney filed a notice of limited appearance contesting the jurisdiction of any Alabama court over the father’s action, and a hearing occurred on August 19, 2013, at which the juvenile court heard testimony ore tenus. The materials provided to this court contain three unsigned filings — the mother’s amended response to the father’s motion to transfer, the mother’s motion for an emergency hearing, and the mother’s “Amended Motion to Dismiss Original Ex parte Petition” — which, although they lack any indication that they were filed in the juvenile court, were apparently filed, because the juvenile court specifically noted these filings in its July 9, 2013, order scheduling the August 19, 2013, hearing and in its October 9, 2013, judgment.

The juvenile court’s October 9, 2013, judgment states the following findings. The father initiated a child-custody action on February 21, 2013, when he filed in the juvenile court his petition for emergency custody of the child alleging that the mother had abandoned the child, and the juvenile court entered an order granting the father temporary emergency custody of the child on February 28, 2013. Before a hearing took place in the juvenile court, the father amended his petition to seek a divorce from the mother and sought a transfer of the action to the circuit court. The juvenile court’s October 9, 2013, judgment states that it was aware that no UCCJEA conference with the Colorado court had taken place, that the Colorado court had entered a judgment in the action initiated by the mother, and that the mother had alleged that the juvenile court lacked jurisdiction over the action initiated by the father pursuant to the UCCJEA. However, the judgment states that the mother submitted to the jurisdiction of the juvenile court with her “pro se filing of April 11.”

The testimony presented at the August 19, 2013, hearing and many of the findings recited in the juvenile court’s October 9, 2013, judgment focus on the residency of the mother and of the father, the reasons for the mother’s leaving Alabama, the mother’s lack of credibility regarding her stated reasons for not returning to Alabama or seeking visitation with the child after the juvenile court granted ex parte temporary emergency custody of the child to the father, and the mother’s postings on a social-media Web site that characterized the father as a “kidnapper.”

The juvenile court discounted the mother’s contention that it lacked jurisdiction over the father’s action pursuant to the UCCJEA for two reasons. First, the juvenile court concluded that, pursuant to the UCCJEA, it had attained temporary emergency jurisdiction to enter its February 28, 2013, order because it had subsequently received evidence on August 19, 2013, that had indicated that the mother had been suicidal, had been mentally unstable, or had perjured herself. Second, the juvenile court concluded that Colorado could not properly be the child’s home state because, it stated, it was “unclear” whether the mother had informed the Colorado court of a pending proceeding in an Alabama court, although the juvenile court, in the same sentence, stated that the Colorado court was informed by the father of the Alabama proceeding.

In its October 9, 2013, judgment, the juvenile court discussed the Colorado court’s duty to immediately contact the Alabama court. The judgment reads:

“[The Colorado version of the UC-CJEA §] 14-13-204(4) requires that a Colorado court assuming jurisdiction under sections 14-13-201, 202, or 203, upon being informed that a child custody determination has been made by a court of another state under a statute similar to Colorado’s, shall immediately communicate with the court of the other state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order. The Colorado court has purportedly made attempts to contact this Court[;] however, no record has been made by the Colorado court of its efforts to resolve the emergency, protect the parties or the child, or to determine a period for the duration of the temporary order. In fact, upon review of the Colorado court record, it does not appear that that Court acknowledged the existence of any emergency whatsoever, as its order demanded immediate return of the child to Colorado, prior to any conversation with this Court resolving the emergency on which its order was based.”

(Emphasis in original; footnote omitted.)

The judgment states that the Colorado court had “obviously” not declined jurisdiction over the child-custody issue, and it notes that such a decision by the Colorado court “might be appropriate.” The judgment declares that Alabama “is in as good or better position to make determinations about the child’s well-being than Colorado” because, at the time the October 9, 2013, judgment was entered, the child had lived in Alabama “twice the time that he lived in Colorado.” The judgment concludes that, pursuant to the UCCJEA, the juvenile court had properly exercised “emergency jurisdiction” over the father’s action, that the juvenile court’s February 28, 2013, order remained in effect, and that the father’s action must be transferred to the circuit court because the father sought a divorce as well as a custody determination.

The mother filed her mandamus petition with this court, together with the transcript of the juvenile court’s August 19, 2013, hearing and other relevant exhibits, seeking this court’s review as to whether the juvenile court lacked jurisdiction over the father’s action.

“ ‘[T]he question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.’ Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000) (citing Ex parte Johnson, 715 So.2d 783, 785 (Ala.1998)).
“ ‘ “ ‘A writ of mandamus is an extraordinary remedy that requires a showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ ” ’
“Ex parte Punturo, 928 So.2d 1030, 1033 (Ala.2002) (quoting Ex parte Bruner, 749 So.2d 437, 439 (Ala.1999), quoting in turn Ex parte McNaughton, 728 So.2d 592, 594 (Ala.1998)). ‘Subject-matter jurisdiction cannot be waived, and the lack of subject-matter jurisdiction may be raised at any time by a party or by a court ex mero motu.’ 928 So.2d at 1033 (citing Greco v. Thyssen Mining Constr., Inc., 500 So.2d 1143 (Ala.Civ.App.1986)). ‘A judgment issued by a trial court without jurisdiction is a nullity.’ 928 So.2d at 1034 (citing Ex parte Hornsby, 663 So.2d 966 (Ala.1995)).”

Ex parte Siderius, 144 So.3d 319, 323 (Ala.2013).

Although this specific basis for the juvenile court’s lack of jurisdiction was not raised by the mother, we determine that the juvenile court lacked subject-matter jurisdiction pursuant to § 12-15-114(a), Ala.Code 1975.

“Although the parties did not raise the issue of subject-matter jurisdiction, this court is ‘ “duty bound to notice ex mero motu the absence of subject-matter jurisdiction.” ’ Baldwin County v. Bay Minette, 854 So.2d 42, 45 (Ala.2003) (quoting Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 945 n. 2 (Ala.1994)).
“ ‘ “On questions of subject-matter jurisdiction, this Court is not limited by the parties’ arguments or by the legal conclusions of the trial and intermediate appellate courts regarding the existence of jurisdiction. Rather, we are obligated to dismiss an appeal if, for any reason, jurisdiction does not exist. See Ex parte Smith, 438 So.2d 766, 768 (Ala.1983) (‘Lack of subject-matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject-matter jurisdiction ex mero motu.’ (citing City of Huntsville v. Miller, 271 Ala. 687, 688, 127 So.2d 606, 608 (1958))).”
‘Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 894-95 (Ala.2008).’
“Championcomm.net of Tuscaloosa, Inc. v. Morton, 12 So.3d 1197, 1199 (Ala.2009).”

K.S. v. H.S., 18 So.3d 417, 418 (Ala.Civ.App.2009).

The father’s February 21, 2013, petition for emergency custody alleged that the mother had abandoned the child, which is an allegation supporting a finding of dependency regarding the child. Section 12-15-114(a) provides, in relevant part: “A dependency action shall not include a custody dispute between parents.” Therefore, because the father’s petition improperly sought the determination of a custody dispute between parents by attempting to invoke the dependency jurisdiction of the juvenile court, we grant the mother’s petition and instruct the juvenile court to vacate its February 28, 2013, order and its October 9, 2013, judgment for lack of jurisdiction pursuant to § 12-15-114(a).

PETITION GRANTED; WRIT ISSUED.

PITTMAN and DONALDSON, JJ„ concur.

THOMAS, J., concurs specially.

THOMPSON, P.J., concurs in the result, without writing.

MOORE, J., concurs in the result, with writing.

THOMAS, Judge,

concurring specially.

I agree with this court’s grant of M.M.T.’s petition for a writ of mandamus instructing the DeKalb Juvenile Court (“the juvenile court”) to vacate its February 28, 2013, order and its October 9, 2013, judgment for lack of jurisdiction pursuant to § 12-15-114(a), Ala.Code 1975. However, I write to express my further agreement with M.M.T. (“the mother”) that, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), § 30-3B-101 et seq., Ala Code 1975, the juvenile court could not have properly exercised jurisdiction over the underlying action initiated by M.B. (“the father”).

Under a UCCJEA analysis, the threshold issue is whether Alabama or Colorado is the home state of R.D.B. (“the child”). The UCCJEA defines the term “home state” in § 30-3B-102(7), Ala.Code 1975:

“The state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of the child or any of the mentioned persons is part of the period.”

(Emphasis added.)

It is undisputed that immediately before the commencement of the child-custody proceeding initiated by the father, the child was less than six months old and Colorado was the state in which the child had lived from birth with the mother and the father. The child’s presence in Alabama for less than one week before the father initiated the underlying action merely constituted a “period of temporary absence” from Colorado. Colorado is clearly the child’s home state.

Furthermore, the materials provided to this court do not support the conclusion that the juvenile court properly exercised temporary emergency jurisdiction over the father’s action pursuant to § 30-3B-204(a)-(d), Ala.Code 1975, which reads:

“(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
“(b) If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under Sections 30-SB-201 through 30-3B-203, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.
“(c) If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, any order issued by a court of this state under this section must specify ⅛ the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Sections 30-3B-201 through 30-3B-203. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.
“(d) A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under Sections 30-3B-201 through 30-3B-203, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to Sections 30-3B-201 through 30-3B-203, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.”

Contrary to the conclusion in the juvenile court’s judgment, the requirements of § 30-3B-204(a) have not been met. The child was not “abandoned” by the mother in Alabama. The UCCJEA defines “abandoned” in § 30-3B-102(l) as “[ljeft without provision for reasonable and necessary care or supervision,” and, because the father was providing the child’s care, the child was not abandoned as defined by the UCCJEA. Furthermore, the father did not allege that it was necessary for the juvenile court to exercise temporary emergency jurisdiction over the child to protect the child because the child was threatened with mistreatment or abuse.

Similarly, the materials before this court do not support the conclusion that the juvenile court properly exercised temporary emergency jurisdiction over the father’s action pursuant to § 30-3B-204(b). On February 28, 2013, when the juvenile court entered its ex parte temporary emergency order, there had been no previous custody determination regarding the child; however, a child-custody proceeding had been commenced on February 19, 2013, by the mother in the El Paso County District Court of Colorado (“the Colorado court”), which had jurisdiction by virtue of its being a court of the child’s home state. The father’s petition for custody was filed two days later, on February 21, 2018.

Furthermore, pursuant to § 30-3B-204(c), the juvenile court’s judgment suffered from a failure to specify the period that the juvenile court considered adequate to allow the mother to obtain an order from the Colorado court. Because a child-custody proceeding had been commenced in Colorado, the child’s home state, the juvenile court’s February 28, 2013, order, at best, remained in effect until the judgment of the Colorado court was obtained on May 23, 2013.

Finally, § 30-3B-204(d) required the Colorado court and the juvenile court to “immediately communicate” in order to resolve the emergency, to protect the safety of the parties and the child, and to determine a period for the duration of the juvenile court’s temporary order. The Colorado court immediately sought to communicate with the juvenile court once it was informed that a custody proceeding had been commenced in Alabama; however, the juvenile court failed to respond to the Colorado court’s efforts to communicate until May 24, 2013.

I conclude that Colorado is the home state of the child, that the juvenile court lacked a basis upon which to exercise temporary emergency jurisdiction pursuant to the UCCJEA, and, like the judges concurring in the main opinion, that the juvenile court lacked jurisdiction pursuant to § 12-15-114(a). Therefore, I concur specially.

MOORE, Judge,

concurring in the result.

The materials provided to us by the parties show that, on February 21, 2013, M.B. (“the father”) filed in the DeKalb Juvenile Court (“the juvenile court”) a pleading entitled “Ex Parte Emergency Petition for Custody.” In that petition, in which M.M.T. (“the mother”) was named as the defendant, the father asserted, in pertinent part:

“1. The Plaintiff is the natural Father and the Defendant is the natural Mother of one (1) minor child, [R.D.B.]....
“2. That on February 18, 2013, the Defendant/Mother left the state and abandoned said child, leaving the care solely dependent on the Plaintiff/Father.
“3. Based on the foregoing, it is in the best interest of the minor child to reside with the Plaintiff/Father.”

The father requested the juvenile court to set the matter for a hearing and to award him custody of the child. The attorney for the father filed an affidavit stating that he had not served the petition on the mother because of her reported erratic behavior. On February 28, 2013, the juvenile court awarded the father ex parte custody of the child pending a hearing scheduled for March 21, 2013.

Section 30-3B-204, Ala.Code 1975, a part of the Uniform Child Custody Jurisdiction and Enforcement Act (“the UC-CJEA”), § 30-3B-101 et seq., Ala.Code 1975, provides, in pertinent part:

“(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.”

The term “court” refers to “[a]n entity authorized under the law of a state to establish, enforce, or modify a child custody determination.” § 30-3B-102(6), Ala. Code 1975. “Abandoned” means “[l]eft without provision for reasonable and necessary care or supervision.” § 30-3B-102(1), Ala. Code 1975.

In Alabama, juvenile courts are authorized to make child-custody determinations only in limited contexts, as outlined in the Alabama Juvenile Justice Act of 2008 (“the AJJA”), § 12-15-101 et seq., Ala.Code 1975. Unless a provision of the AJJA explicitly grants a juvenile court the power to dispose of the custody of a child, the juvenile court, as a statutorily created court of limited jurisdiction, may not make a child-custody determination. See K.C.G. v. S.J.R., 46 So.3d 499, 501 (Ala.Civ.App.2010).

Section 12-15-141, Ala.Code 1975, a part of the AJJA, provides, in pertinent part:

“The juvenile court may enter an ex parte order of protection or restraint on an emergency basis, without prior notice and a hearing, upon a showing of verified written or verbal evidence of abuse or neglect injurious to the health or safety of a child subject to a juvenile court proceeding and the likelihood that the abuse or neglect will continue unless the order is issued.”

Upon filing his petition, the father did not make any showing that the child was subject to abuse or neglect injurious to his health or safety or contend that such abuse or neglect was likely to continue absent the entry of an emergency order. To the contrary, the father asserted that the child was in his custody and care and that the mother had left Alabama. Hence, the father did not invoke the emergency jurisdiction of the juvenile court by filing his petition, and, thus, the juvenile court lacked the power to act on that petition under § 12-15-141. See generally J.H. v. J.W., 69 So.3d 870 (Ala.Civ.App.2011) (plurality opinion).

The father’s petition also failed to invoke the dependency jurisdiction of the juvenile court as established in § 12-15-114, Ala. Code 1975, also a part of the AJJA. Although the father alleged that the mother had left the child in Alabama, he did not allege that the child was without provision for reasonable and necessary care or supervision such that the child could be considered abandoned within the meaning of § 30-3B-102(l), thereby permitting the juvenile court to exercise temporary emergency jurisdiction pursuant to § 30-3B-204(a). In fact, the father asserted that, after the mother left Alabama, he had assumed the sole care and custody of the child. The father did not allege that he was not the legal custodian of the child. See Ex parte L.E.O., 61 So.3d 1042 (Ala.2010) (holding that child is dependent if legal custodian abandons child to care of strangers). Hence, the father did not expressly or impliedly plead that the child was without a proper parent or legal custodian to provide for his needs. See § 12-15-102(8), Ala.Code 1975 (defining “dependent child”). Even read broadly, the father’s petition asserted only a custody dispute between the parents of the child, which does not fall within the dependency jurisdiction of the juvenile courts. See § 12-15-114(a) (“A dependency action shall not include a custody dispute between parents.”).

Because the juvenile court never acquired subject-matter jurisdiction, it had no power to enter any orders affecting the custody of the child, and, thus, all of its orders and judgments entered in the underlying proceeding are void. See J.H., supra. Accordingly, I agree that the petition for a writ of mandamus filed by the mother is due to be granted.

      . The materials included for our review do not include a copy of the mother’s petition; however, the materials do include an order of the Colorado court that refers to the hearing held before the entry of that order as a hearing on “[the mother]’s Emergency Motion for Abduction Protection Measures.”

      . Colorado has also adopted the UCCJEA. It is codified at Colo.Rev.Stat., § 14-13-101 et seq.

      . We note that the entirety of the mother’s "pro se filing” is a challenge to the juvenile court’s jurisdiction based upon her argument that Colorado is home state of the child pursuant to the UCCJEA. In the context of a custody matter controlled by the UCCJEA, "jurisdiction to make a child custody determination is subject matter jurisdiction.” § 30-3B-201, Ala.Code 1975, Official Comment.
      " ' "[Sjubject-matter jurisdiction may not be waived; a court’s lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu." ’ S.B.U. v. D.G.B., 913 So.2d 452, 455 (Ala.Civ.App.2005) (quoting C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala.Civ.App.2003)). Questions of law, such as whether a court has subject-matter jurisdiction, are reviewed de novo. BT Sec. Corp. v. W.R. Huff Asset Mgmt. Co., 891 So.2d 310 (Ala.2004).”

        K.R. v. Lauderdale Cnty. Dep’t of Human Res., 133 So.3d 396, 404 (Ala.Civ.App.2013).

      . To the extent that the juvenile court’s judgment might indicate that Colorado is an "inconvenient forum” pursuant to § 30-3B-207, Ala.Code 1975, we note that the decision to decline to exercise jurisdiction on that basis rests with the child’s home state, which, in this case, is Colorado. See § 30-3B-102(7), Ala.Code 1975; Colo.Rev.Stat., § 14 — 13— 102(7).


author: DONALDSON, Judge.

text:
    M.E. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2120846.
    Court of Civil Appeals of Alabama.
    Feb. 7, 2014.
    Seth D. Stringer, Birmingham, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   DONALDSON, Judge.

M.E. (“the mother”) appeals from the judgment of the Jefferson Juvenile Court (“the juvenile court”) ordering that custody of her minor son, J.H. III (“the child”), continue with the child’s maternal grandfather and his wife (“the grandparents”) and closing the dependency case concerning the child to further court review. The mother asserts that she was deprived of the right to due process and that, by closing the case, the juvenile court improperly relieved the Jefferson County Department of Human Resources (“DHR”) of its duties. Because we hold that the mother was not provided adequate notice of the nature of the proceedings that were conducted, and thus was denied due process, we reverse and remand.

Facts and Procedural History

The record indicates that DHR filed a dependency petition concerning the child in the juvenile court on September 1, 2012. The petition alleged that the mother had left the then 15-month-old child in the care of her paramour, who then assaulted the child. The child was placed in the temporary custody of the grandparents. On February 20, 2013, the parties stipulated to the dependency of the child. Later that day, the juvenile court entered an order scheduling a “review hearing” for May 29, 2013. The order, which was on a standardized form, listed certain types of proceedings that could be marked by the court with a check mark to further specify the purpose of the scheduled proceeding. The box for “Compliance/Dispositional Hearing” is checked on the form, but the box for “Permanency Hearing” is not checked. On March 12, 2013, the juvenile court appointed a Court Appointed Special Advocate (“the CASA”) to represent the best interests of the child and to report to the court the circumstances surrounding the welfare of the child. On March 19, 2013, the grandparents filed a contempt motion, alleging that the mother had not been paying the court-ordered child support. The hearing on the contempt motion was also set for May 29, 2013.

At the May 29, 2013, hearing, the juvenile court began the proceeding by announcing: “We’re set today for a motion for contempt” and “We’re also here on review today.” The juvenile court did not receive sworn testimony at the hearing, but it heard arguments from counsel for DHR, counsel for the mother, counsel for the grandparents, and the child’s guardian ad litem. During the arguments, DHR asked the court to change the permanency plan for the child from one of reunification to a concurrent plan of reunification and permanent relative placement. DHR also recommended continuing custody of the child with the grandparents. DHR’s counsel requested that the court “close” the case because the mother had not complied with DHR’s requests or with orders of the court.

Among other things, counsel for the parties discussed the mother’s living situation and whether she had continued a relationship with the paramour who had assaulted the child. The attorney for the grandparents indicated that the grandparents expected to call witnesses at any hearing held on the issues. During the proceedings, the guardian ad litem questioned a witness identified as a law-enforcement officer about certain events; however, the witness was not sworn and the exchange was conducted informally without direct examination or cross-examination. The attorney for the mother maintained that the mother would refute the factual allegations made by DHR, the grandparents, and the guardian ad litem concerning the mother’s alleged noncompliance with DHR requests and the orders of the court.

At the conclusion of the arguments, the juvenile court asked the parties if they wanted to present any other testimony or evidence. The guardian ad litem requested an opportunity to ask the mother a question under oath. The juvenile court responded by stating that no more evidence was needed, and it then announced it had decided to leave the child in the grandparents’ custody and to “close” the case. The juvenile court stated that it was entering the order over the mother’s objection.

The juvenile court subsequently entered a written judgment stating that a “Compliance/Dispositional” and “Permanency” hearing had been held on May 29, 2013. Adopting DHR’s permanency plan, the judgment vested permanent custody in the grandparents, relieved DHR and the CASA from further supervision or involvement in the case, and closed the matter to further court review. On June 10, 2013, the mother submitted a timely motion to alter, amend, or vacate the judgment, raising the arguments that her due-process rights had been violated by a lack of adequate advance notice of the nature of the proceedings and that the case had been prematurely closed. Specifically, the mother’s motion stated:

“That the hearing held on May 29, 2013, was identified as a Compliance/Dispositional Hearing not as a Permanency Hearing. However, the substance of the hearing held on that date indicated that it was a Permanency Hearing.
“That the mother had notice of a Compliance/Dispositional Hearing that was to be held on that date, but received no notice of a Permanency Hearing.
“That the mother’s due process was violated by holding a Permanency Hearing on May 29, 2013.
“In the DHR Court Report prepared on May 20, 2013, and incorporated into the Court Order dated May 29, 2013, DHR’s permanency plan was for the child to be reunited with the parent.
“That closing the above-styled case would unfairly prejudice the mother in future attempts of regaining custody of her child.
“That no party would be unfairly prejudiced in reopening the above-styled case.”

This motion was not ruled upon within 14 days and, therefore, was denied by operation of law pursuant to Rule 1(B), Ala. R. Juv. P. The mother filed a timely notice of appeal of the juvenile court’s judgment to this court on July 1, 2013.

Discussion

The mother contends that she was deprived of due process when she was not provided with adequate advance notice that the May 29 proceeding would be a permanency and final dispositional hearing. She asserts that the order dated February 20, 2013, notified her only that the May 29 hearing would be a review hearing and a “Compliance/Dispositional” hearing. She argues that the proceedings instead were conducted as a permanency hearing, which resulted in the discharge of any further obligations on the part of DHR and the closing of the case without further review, all without providing her adequate notice and an opportunity to be heard.

Under the circumstances presented in this case, the Alabama Juvenile Justice Act (“the Act”), § 12-15-101 et. seq., Ala. Code 1975, required the juvenile court to hold a permanency hearing within 12 months of the removal of the child from the mother’s home. § 12-15-S15(a), Ala. Code 1975. As part of the permanency-review process under the Act, DHR is required to present a permanency plan to the juvenile court, and the court determines the plan for permanent placement of the child from various options. Id. The court “is required to hold periodic review hearings to ensure that ‘reasonable efforts are being made to finalize the existing permanency plan.’ ” N.J.D. v. Madison Cnty. Dep’t of Human Res., 110 So.3d 387, 393 (Ala.Civ.App.2012) (quoting § 12-15-312(a)(3)).

Neither the February 20, 2013, order nor the subsequent order setting the grandparents’ contempt motion for a hearing provided notice to the mother that the May 29 hearing would be a permanency hearing as opposed to a dispositional hearing. Due process of law should be observed in legal proceedings dealing with “ ‘ “ ‘the welfare of a minor child.’ ” ’ ” N.J.D., 110 So.3d at 391 (quoting Gilmore v. Gilmore, 103 So.3d 833, 835 (Ala.Civ.App.2012), quoting in turn Strain v. Maloy, 83 So.3d 570, 571 (Ala.Civ.App.2011), quoting in turn Danford v. Dupree, 272 Ala. 517, 520, 132 So.2d 734, 735 (1961)). In N.J.D., this court applied a three-factor test set forth in Thorne v. Thorne, 344 So.2d 165, 169 (Ala.Civ.App.1977), to decide in a dependency case whether a parent was deprived of due process in legal proceedings that determined permanent custody of the parent’s children. 110 So.3d at 391-94. We considered “ ‘the nature of the right involved, the nature of the proceeding, and the possible burden on the proceeding.’ ” 110 So.3d at 391 (quoting Thorne, 344 So.2d at 169). We held that the parent had been deprived of due process in the dependency case because the parent’s right to custody of his children was protected by due process; the parent was not provided notice, as required by due process, of the nature of the proceedings; and the burden of providing notice to the parent was minimal.

The mother argues that the holding in N.J.D. is controlling in this case. First, she asserts that the nature of the right involved, as in N.J.D., is a parent’s right to custody of her child and that due process requires adequate advance notice of proceedings that could result in a deprivation of that right. Second, she asserts that the notice of the hearing failed to adequately inform her of the purpose of the proceedings. Both the trial court in N.J.D. and the juvenile court in this case provided notice that a scheduled hearing would be a review hearing, but on the scheduled date the proceedings in both cases were conducted as a permanency hearing. After the hearing, the court in each case entered a judgment that finalized the permanency plan, awarded permanent custody of the affected child or children with a grandparent or grandparents, and closed the case. Moreover, the juvenile court in this case did not take any sworn testimony, and it entered its judgment over the objection of the mother. Finally, with respect to the third consideration of the Thome test, like in N.J.D., providing the mother notification of the purpose for the hearing would have required only minimal effort.

“ ‘ “[D]ue process of law means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing.” ’ ” M.H. v. Jer. W., 51 So.3d 334, 337 (Ala.Civ.App.2010) (quoting Neal v. Neal, 856 So.2d 766, 782 (Ala.2002), quoting in turn Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940)) (emphasis omitted). In our review of the record, the facts support the mother’s argument. Neither DHR nor the guardian ad litem refute the mother’s argument that she was not provided with due process in this case. Therefore, we hold that, based on N.J.D., the judgment was entered without providing the mother with due process.

Conclusion

For the reasons discussed above, we reverse the judgment finalizing the permanency plan, closing the case, and permanently awarding custody of the child to the grandparents. We remand the cause for further proceedings consistent with this opinion. Because we are reversing the judgment on another basis, we pretermit discussion of the mother’s contention that, by closing the ease, the juvenile court improperly relieved DHR of its duties.

REVERSED AND REMANDED.

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

      . Because the judgment of the juvenile court relieved DHR from all further responsibility toward the child and the mother, this case is distinguishable from Ex Parte F.V.O., 145 So.3d 27 (Ala.2013) (noting that the order appealed from in that case did not relieve "DHR of its legal obligation to make reasonable efforts toward [the parent’s] rehabilitation and reunification with the [children] going forward”).

      . We note that Rule 13(C), Ala. R. Juv. P., provides, in pertinent part, that, "[e]xcept for detention, shelter-care, and 72-hour hearings, written notice of all hearings ... shall be provided to all parties in the proceedings and shall include the date, time, place, and purpose of the hearings.” (Emphasis added.)

      . The juvenile court in the present case also scheduled the hearing to discuss the grandparents' contempt motion based on the mother’s alleged failure to make court-ordered child-support payments.