text:
    Kenneth SMITH v. Connie BUTLER-AUSTIN and John Reynolds.
    2110342.
    Court of Civil Appeals of Alabama.
    May 18, 2012.
    Opinion on Return to Remand Aug. 10, 2012.
    Ronnie L. Williams of Williams & Associates, LLC, Mobile, for appellant.
    Taylor D. Wilkins, Jr., and Robert W. Waller, Jr., of Wilkins, Bankester, Biles & Wynne, P.A., Bay Minette, for John Reynolds.
    Bruce B. Stone of Duck, Calhoun & Stone, Fairhope, for Connie Butler-Austin.
   THOMPSON, Presiding Judge.

On February 9, 2011, Kenneth Smith filed a pro se complaint in the Baldwin Circuit Court seeking to eject Connie Butler-Austin from certain real property. In his complaint against Butler-Austin, Smith alleged that John Reynolds had improperly leased the property to Butler-Austin. Smith’s action against Butler-Austin was assigned case number CV-11-900208. On February 28, 2011, Butler-Austin answered Smith’s complaint, denying that Smith had the right to eject her from the property.

Also on February 28, 2011, Butler-Austin filed in case number CV-11-900208 a third-party complaint naming Reynolds as a third-party defendant. In that third-party complaint, Butler-Austin asserted various claims against Reynolds in the event the trial court determined that Reynolds was not the owner of the property Reynolds had contracted to lease to her. In support of that third-party complaint, Butler-Austin submitted a copy of a May 16, 1997, lease document naming Reynolds and Butler-Austin as parties to the lease agreement.

On March 14, 2011, the trial court entered an order in case number CV-11-900208 scheduling a bench trial for July 26, 2011. Butler-Austin later moved to consolidate case number CV-11-900208 with a separate action Smith had initiated against Reynolds, which she alleged was designated as case number CV-11-900209 and which is hereinafter referred to as “the Reynolds action.” The record on appeal contains no pleadings or orders pertaining to the Reynolds action. However, in a postjudgment motion discussed later in this opinion, Smith alleged that he had filed that action against Reynolds when he discovered that Reynolds had executed an agreement purporting to lease the property to Butler-Austin. On March 25, 2011, the trial court granted Butler-Austin’s motion to consolidate the two actions.

On July 26, 2011, the date of the scheduled bench trial, Butler-Austin filed a motion for an award of an attorney fee pursuant to the Alabama Litigation Accountability Act (“ALAA”), § 12-19-270 et seq., Ala.Code 1975. As a basis for her ALAA claim, Butler-Austin alleged that the trial court had scheduled Smith’s claims against her for a bench trial on July 26, 2011, and that Smith had failed to appear at the scheduled trial.

On July 28, 2011, the trial court entered the following order (hereinafter “the July 28, 2011, order”) in case number CV-11-900208:

“This matter comes before the Court for bench trial final hearing [sic] this 26th day of July 2011; present in Court was the defendant, Connie Butler-Austin, represented by her attorney of record ..., and the defendant, John Reynolds, represented by.... The plaintiff, Kenneth Smith, or any representatives on behalf, failed to appear. The Court, upon [Butler-Austin’s] oral motion to dismiss [Smith’s] complaint against defendant Connie Butler-Austin for his failure to appear, together with [Butler-Austin’s] motion for an attorney fee, made verbal findings on the record which are incorporated within this order by reference; and, further, the Court hereby does:
“ORDER, ADJUDGE and DECREE as follows:
“1. That [Smith’s] complaint as to defendant Connie Butler-Austin is hereby due to be, and is, dismissed with prejudice.
“2. That defendant Connie Butler-Austin’s third-party complainVcross-elaim against defendant John Reynolds is hereby due to be and is dismissed without prejudice.
“3. That defendant Connie Butler-Austin’s motion for an attorney fee pursuant to the [ALAA] is hereby due to be, and is GRANTED. Judgment is hereby entered in favor of defendant Connie Butler-Austin, and against plaintiff Kenneth Smith, for her attorney fees in defending this cause of action, in the amount of $1,500, for which execution [shall] issue.”

(Capitalization in original.) Also on July 28, 2011, the trial court entered another order that is substantially the same as the order quoted above; that order stated: “Trial held on 7/26/2011. Plaintiff failed to appear. Case is dismissed and third-party complaint is dismissed without prejudice.”

On August 26, 2011, Smith, who had by that time retained counsel, filed in case number CV-11-900208 a purported post-judgment motion in which he sought to set aside the July 28, 2011, order. See SCI Alabama Funeral Servs., Inc. v. Hester, 984 So.2d 1207, 1208 n. 1 (Ala.Civ.App.2007) (“A valid postjudgment motion may only be taken in reference to a final judgment.”). Smith submitted certain exhibits in support of his August 26, 2011, motion. On August 29, 2011, the trial court entered an order denying Smith’s August 26, 2011, motion to set aside the July 28, 2011, order. Smith appealed to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975. Smith contends that the trial court erred in failing to set aside the July 28, 2011, order in case number CV-11-900208.

However, as an initial matter, we take notice of a jurisdictional issue. See Bryant v. Flagstar Enters., Inc., 717 So.2d 400, 401 (Ala.Civ.App.1998) (“[W]e must consider whether we have jurisdiction over this appeal, because ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ ” (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987))). A nonfinal order cannot support an appeal. See Schlarb v. Lee, 955 So.2d 418, 420 (Ala.2006).

In Hanner v. Metro Bank & Protective Life Insurance Co., 952 So.2d 1056 (Ala.2006), the judgment entered in Hanner’s divorce action required that she and her former husband maintain life-insurance policies for the benefit of their minor child. Shortly before his death, the former husband assigned a portion of his life-insurance benefits to Metro Bank as security for indebtedness, and he assigned the remainder of those benefits to his new wife. After the former husband’s death, a dispute arose concerning the proceeds of the life-insurance policy. The insurance company filed a declaratory-judgment action against Metro Bank and Hanner. Hanner counterclaimed against the insurance company and filed a cross-claim against Metro Bank. In addition, Hanner filed a separate action against the former husband’s estate and his widow. Hanner’s action was consolidated with the insurance company’s declaratory-judgment action.

In Hanner, supra, the trial court entered a judgment in favor of Metro Bank on all the claims pending between the parties to the declaratory-judgment action. Our supreme court concluded, however, that, because the two actions had been consolidated and no judgment had been entered in Hanner’s action against the estate and the widow, the order in the declaratory-judgment action was nonfinal. Hminer, 952 So.2d at 1060. In so holding, the court explained:

“According to Wright and Miller:
“ ‘Although federal courts usually have said that consolidated actions do not lose their separate identity, some courts have reasoned persuasively that they should be treated as a single action for purposes of review by way of Rule 54(b), and that a judgment in the consolidated case that does not dispose of all claims and all parties is appealable only if certified as that rule requires.’
“9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2386 (2d ed.1995) (footnote omitted). The United States Court of Appeals for the Ninth Circuit has said:
“ ‘In our view, the best approach is to permit the appeal only when there is a final judgment that resolves all of the consolidated actions unless a 54(b) certification is entered by the district court. This leaves the discretion with the court which is best able to evaluate the [ejffect of an interim appeal on the parties and on the expeditious resolution of the entire action.’
“Huene v. United States, 743 F.2d 703, 705 (9th Cir.1984). See, also, Trinity Broad. Corp. v. Eller, 827 F.2d 673, 675 (10th Cir.1987) (‘To obtain review of one part of a consolidated action, appellant must obtain certification under Fed. R.Civ.P. 54(b).’); and Spraytex, Inc. v. DJS & T, 96 F.3d 1377, 1382 (Fed.Cir.1996) (We now extend this approach to join the Ninth and Tenth Circuits in adopting the rule that, absent Rule 54(b) certification, there may be no appeal of a judgment disposing of fewer than all aspects of a consolidated case.’). We find persuasive the holdings of these decisions interpreting the Federal Rules of Civil Procedure, on which our own Rules of Civil Procedure are based. Accordingly, we hold that a trial court must certify a judgment as final pursuant to Rule 51(b), Ala. R. Civ. P., before a judgment on fewer than all the claims in a consolidated action can be appealed.”

Hanner, 952 So.2d at 1060-61 (emphasis added).

In this case, Smith filed his claim in case number CV-11-900208 seeking to eject Butler-Austin from certain real property. In his purported postjudgment motion filed in case number CV-11-900208, Smith alleged that he had filed the Reynolds action to assert claims related to Reynolds’s allowing Butler-Austin to lease that property. The trial court ordered the two actions consolidated, and there is no indication in the record on appeal that the consolidation of the actions was only for the purposes of discovery or trial. See Rule 42(a), Ala. R. Civ. P. (“When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the. actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” (emphasis added)). The record on appeal contains no indication that a judgment or order disposing of the claims Smith asserted against Reynolds has been entered in the Reynolds action, which was consolidated with case number CV-11-900208. We conclude that, given the facts and procedural history of this case, the July 28, 2011, order in case number CV-11-900208 was not sufficiently final to support this appeal.

Accordingly, we remand this cause for 14 days for the trial court (1) to enter a final judgment in the consolidated action, (2) to determine whether a certification of the July 28, 2011, order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., would be appropriate, given the facts, see Lighting Fair, Inc. v. Rosenberg, 68 So.3d 1256, 1263-64 (Ala.2010) (discussing whether claims are too intertwined for a Rule 54(b) certification to be appropriate), or (3) to take no action, which will result in a dismissal of the appeal. If the trial court enters a final judgment or determines that a Rule 54(b) certification would be appropriate in this matter,

“a supplemental record reflecting such action should be prepared and forwarded to this Court within 14 days from the date this opinion is released.... If no supplemental record is forwarded to this Court within 14 days of the date this opinion is released, this appeal will be dismissed.”

Hanner v. Metro Bank & Protective Life Ins. Co., 952 So.2d at 1062.

The motion to strike Smith’s brief is denied as moot.

REMANDED.

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

On Return from Remand

THOMPSON, Presiding Judge.

In an earlier opinion, this court explained the procedural history of this matter as follows:

“On February 9, 2011, Kenneth Smith filed a pro se complaint in the Baldwin Circuit Court seeking to eject Connie Butler-Austin from certain real property. In his complaint against Butler-Austin, Smith alleged that John Reynolds had improperly leased the property to Butler-Austin. Smith’s action against Butler-Austin was assigned case number CV-11-900208. On February 28, 2011, Butler-Austin answered Smith’s complaint, denying that Smith had the right to eject her from the property.
“Also on February 28, 2011, Butler-Austin filed in case number CV-11-900208 a third-party complaint naming Reynolds as a third-party defendant. In that third-party complaint, Butler-Austin asserted various claims against Reynolds in the event the trial court determined that Reynolds was not the owner of the property Reynolds had contracted to lease to her. In support of that third-party complaint, Butler-Austin submitted a copy of a May 16, 1997, lease document naming Reynolds and Butler-Austin as parties to the lease agreement.
“On March 14, 2011, the trial court entered an order in case number CV-11-900208 scheduling a bench trial for July 26, 2011. Butler-Austin later moved to consolidate case number CV-11-900208 with a separate action Smith had initiated against Reynolds, which she alleged was designated as case number CV-11-900209 and which is hereinafter referred to as ‘the Reynolds action.’ The record on appeal contains no pleadings or orders pertaining to the Reynolds action. However, in a post-judgment motion discussed later in this opinion, Smith alleged that he had filed that action against Reynolds when he discovered that Reynolds had executed an agreement purporting to lease the property to Butler-Austin. On March 25, 2011, the trial court granted Butler-Austin’s motion to consolidate the two actions.

“On July 26, 2011, the date of the scheduled bench trial, Butler-Austin filed a motion for an award of an attorney fee pursuant to the Alabama Litigation Accountability Act (‘ALAA’), § 12-19-270 et seq., Ala.Code 1975. As a basis for her ALAA claim, Butler-Austin alleged that the trial court had scheduled Smith’s claims against her for a bench trial on July 26, 2011, and that Smith had failed to appear at the scheduled trial.

“On July 28, 2011, the trial court entered the following order (hereinafter ‘the July 28, 2011, order’) in case number CV-11-900208:

“ ‘This matter comes before the Court for bench trial final hearing [sic] this 26th day of July 2011; present in Court was the defendant, Connie Butler-Austin, represented by her attorney of record ..., and the defendant, John Reynolds, represented by.... The plaintiff, Kenneth Smith, or any representatives on behalf, failed to appear. The Court, upon [Butler-Austin’s] oral motion to dismiss [Smith’s] complaint against defendant Connie Butler-Austin for his failure to appear, together with [Butler-Austin’s] motion for an attorney fee, made verbal findings on the record which are incorporated within this order by reference; and, further, the Court hereby does:
“‘ORDER, ADJUDGE and DECREE as follows:
“ ‘1. That [Smith’s] complaint as to defendant Connie Butler-Austin is hereby due to be, and is, dismissed with prejudice.
“‘2. That defendant Connie Butler-Austin’s third-party complaint/cross-claim against defendant John Reynolds is hereby due to be and is dismissed without prejudice.
“ ‘3. That defendant Connie Butler-Austin’s motion for an attorney fee pursuant to the [ALAA] is hereby due to be, and is GRANTED. Judgment is hereby entered in favor of defendant Connie Butler-Austin, and against plaintiff Kenneth Smith, for her attorney fees in defending this cause of action, in the amount of $1,500, for which execution [shall] issue.’
“(Capitalization in original.) Also on July 28, 2011, the trial court entered another order that is substantially the same as the order quoted above; that order stated: ‘Trial held on 7/26/2011. Plaintiff failed to appear. Case is dismissed and third-party complaint is dismissed without prejudice.’
“On August 26, 2011, Smith, who had by that time retained counsel, filed in case number CV-11-900208 a purported postjudgment motion in which he sought to set aside the July 28, 2011, order. See SCI Alabama Funeral Servs., Inc. v. Hester, 984 So.2d 1207, 1208 n. 1 (Ala.Civ.App.2007) (‘A valid postjudgment motion may only be taken in reference to a final judgment.’). Smith submitted certain exhibits in support of his August 26, 2011, motion. On August 29, 2011, the trial court entered an order denying Smith’s August 26, 2011, motion to set aside the July 28, 2011, order. Smith appealed to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975. Smith contends that the trial court erred in failing to set aside the July 28, 2011, order in case number CV-11-900208.”

Smith v. Butler-Austin, 108 So.3d 1014, 1016 (Ala.Civ.App.2012) (footnotes omitted).

In Smith v. Butler-Austin, supra, this court concluded that the July 28, 2011, order from which Smith had appealed was not sufficiently final to support the appeal. Accordingly, this court remanded the cause for the trial court to determine whether to enter a final judgment, to determine whether a Rule 54(b), Ala. R. Civ. P., certification was appropriate, or to take no action. 108 So.3d at 1018.

On June 1, 2012, the trial court entered a judgment in case number CV-11-900208 finding that Reynolds owned the property at issue, dismissing Smith’s claims against Butler-Austin and Reynolds in “this action and the consolidated action,” noting that Butler-Austin had withdrawn her third-party claim against Reynolds, and ordering Smith to pay Reynolds an attorney fee under the ALAA. The record also indicates that on May 23, 2012, the trial court entered a judgment in the Reynolds action dismissing that action. Those judgments disposed of the remaining pending claims between the parties and, therefore, constituted a final judgment in this matter.

On appeal, Smith argues that the trial court erred in denying his motion seeking to set aside what he refers to as the trial court’s “default judgment.” This court noted in Smith v. Butler-Austin, supra, that, although “[t]he parties refer to the July 28, 2011, order as a ‘default judgment,’ ” “[w]e conclude that that order was one dismissing the claims in case number CV-11-900208 pursuant to Rule 41(b), Ala. R. Civ. P.” Smith v. Butler-Austin, 108 So.3d at 1016 n. 2 (citing Blake v. Stinson, 5 So.3d 615 (Ala.Civ.App.2008)).

This court has explained the law concerning a dismissal pursuant to Rule 41(b), Ala. R. Civ. P., as follows:

“ ‘The dismissal of a civil action for want of prosecution because of the plaintiffs failure to appear at a trial falls within the judicial discretion of a trial court and will not be reversed upon an appeal except for an abusive use of that discretionary power.’ Thompson v. McQuagge, 464 So.2d 105, 106 (Ala.Civ.App.1985). However, ‘[d]ismissal with prejudice is a harsh sanction and should be used only in extreme circumstances.’ Atkins v. Shirley, 561 So.2d 1075, 1077 (Ala.1990) (quoting Selby v. Money, 403 So.2d 218, 220 (Ala.1981)).
“ ‘ “In Alabama, and many federal courts, the interest in disposing of the litigation on the merits is overcome and a dismissal may be granted when there is a clear record of delay, willful default or contumacious conduct by the plaintiff. Willful default or conduct is a conscious or intentional failure to act. ‘Willful’ is used in contradistinction to accidental or involuntary noncompliance. No wrong motive or intent is necessary to show willful conduct.” ’ ”

Goodley v. Standard Furniture Mfg. Co., 716 So.2d 226, 227 (Ala.Civ.App.1998) (quoting Selby v. Money, 403 So.2d 218, 220-21 (Ala.1981)).

With regard to reviewing a dismissal under Rule 41(b), this court has further explained:

“It is well settled that the decision whether to enter a Rule 41(b) dismissal is within the sound discretion of the trial court, and such a dismissal will be reversed only if the trial court exceeded its discretion. Atkins v. Shirley, 561 So.2d 1075, 1077 (Ala.1990); Riddlesprigger v. Ervin, 519 So.2d 486, 487 (Ala.1987); State ex rel. S.M. v. A.H., 832 So.2d 79, 80 (Ala.Civ.App.2002); and Coulter v. Stewart, 726 So.2d 726, 728 (Ala.Civ.App.1999). However, because dismissal with prejudice is a drastic sanction, it should be applied only in extreme situations. Smith v. Wilcox County Bd. of Educ., 365 So.2d 659, 661 (Ala.1978). Therefore, this court will carefully scrutinize orders dismissing an action with prejudice and occasionally will find it necessary to set them aside. Id. In reviewing the trial court’s dismissal of an action, we must determine whether the ruling is supported by the evidence contained in the record. Nash v. Cosby, 597 So.2d 209, 210 (Ala.1992); Atkins v. Shirley, 561 So.2d at 1077; and Riddlesprigger v. Ervin, 519 So.2d at 487.”

Blake v. Stinson, 5 So.3d 615, 617-18 (Ala.Civ.App.2008).

In Goodley, supra, the trial court dismissed an action pursuant to Rule 41(b) when Goodley and his attorney failed to appear at the scheduled trial. In his post-judgment motion, Goodley alleged that his attorney had failed to notify him of the trial setting. This court reversed the dismissal, noting that, “[o]ther than Goodley’s failure to appear on the date set for trial, the case action summary reveals no delay, default, or dereliction on his part.” Goodley, 716 So.2d at 227. This court concluded that the record on appeal indicated “no delay, willful default, or contumacious conduct by Goodley.” Id. See also Burdeshaw v. White, 585 So.2d 842 (Ala.1991) (the failure to appear at a summary-judgment hearing and then delaying 10 months to seek to have another hearing scheduled did not warrant a Rule 41(b) dismissal); and Cabaniss v. Wilson, 501 So.2d 1177 (Ala.1986) (reversing a dismissal when the evidence indicated, in part, that the failure to appear for a summary-judgment hearing was not willful).

In his motion to set aside the judgment of dismissal, Smith alleged that, before the actions were consolidated, an order had been entered in case number CV-11-900208 scheduling that action for a bench trial on July 26, 2011, and that the bench trial in the Reynolds action had been scheduled for September 29, 2011. Smith stated that he erroneously concluded that the actions would be tried on the later date, i.e., September 29, 2011. Smith argued that his conclusion was “based on faulty judgment or logic” and that it was not “a wilful disregard of an order” of the trial court. Smith reiterates those arguments in his brief before this court. The record contains no indication of any delay or dereliction by Smith before his failure to appear at the bench trial. Goodley, supra. Given the record on appeal and the arguments asserted by Smith, we must conclude that the trial court erred in dismissing Smith’s claims. Therefore, we reverse the trial court’s judgment and remand the cause for further proceedings.

REVERSED AND REMANDED.

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

      . On August 2, 2011, Butler-Austin Bled a motion seeking an award of an attorney fee under the ALAA. In response, on August 11, 2011, the trial court entered an order identical to the July 28, 2011, order quoted above; the only differences between the July 28, 2011, order and the August 2, 2011, post-judgment order are the dates on those documents.

      . The parties refer to the July 28, 2011, order as a "default judgment.” We conclude that that order was one dismissing the claims in case number CV-11-900208 pursuant to Rule 41(b), Ala. R. Civ. P. Blake v. Stinson, 5 So.3d 615 (Ala.Civ.App.2008).

      .In his notice of appeal, Smith named both Butler-Austin and Reynolds as appellees. None of the parties has asserted on appeal any arguments regarding Butler-Austin's third-party claims against Reynolds. However, Reynolds has filed a brief on appeal adopting the arguments asserted by Butler-Austin and a motion to strike Smith's appellate brief.

      . In his brief on appeal, Smith erroneously characterizes the June 28, 2011, order as one entering a default judgment. Accordingly, in his brief on appeal, he argues the factors set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988), that must be addressed in a Rule 55(c), Ala. R. Civ. P., motion to set aside a default judgment. One of the Kirtland factors concerns whether the defaulting party’s conduct was culpable. Kirtland, 524 So.2d at 606. We interpret Smith’s argument on that factor as addressing the propriety of the Rule 41 dismissal in this case, i.e., whether his conduct in failing to appear at the bench trial constituted willful or contumacious conduct. See Goodley v. Standard Furniture Mfg. Co., supra.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    ENGINEERED COOLING SERVICES, INC. v. STAR SERVICE, INC. OF MOBILE.
    2110178.
    Court of Civil Appeals of Alabama.
    June 8, 2012.
    Opinion on Return to Remand Aug. 10, 2012.
    Certiorari Denied Oct. 12, 2012 Alabama Supreme Court 1111515.

      Forrest S. Latta and Taylor N. Barr of Burr & Forman LLP, Mobile; and John H. Adams of Emmanuel Sheppard & Con-don, Pensacola, Florida, for appellant.
    S. Russell Copeland of Hoiles, Dasinger, Hollon & Copeland, P.C., Robertsdale, for appellee.
   BRYAN, Judge.

Engineered Cooling Services, Inc. (“ECS”), appeals from a judgment in favor of Star Service, Inc. of Mobile (“Star”). We affirm in part and remand with instructions.

Factual Background

Star specializes in contracting to provide maintenance service for commercial heating, ventilation, and air-conditioning (“HVAC”) equipment for a fixed price. In January 2005, Star employed Mark Davis as a salesman. When Star employed Davis, he had had no previous experience in the HVAC business, and Star trained and developed Davis as a salesman of HVAC-maintenance service.

When he began his employment with Star, Davis signed a written contract titled “Employee Confidentiality Agreement” (“the confidentiality agreement”) in which he agreed, among other things, that he would not remove Star’s confidential information from its premises or disclose it to others during or after his employment with Star unless authorized to do so by Star and that, for a year after his employment with Star ended, he would not contact Star’s customers for the purpose of offering services from a competitor of Star.

In December 2008, ECS, one of Star’s competitors, offered Davis a job as a salesman at a base salary that was almost twice his base salary at Star. Pete Doyle, ECS’s president, told Davis that ECS wanted to hire Davis in order to increase its HVAC-maintenance business. On January 6, 2009, Davis accepted ECS’s job offer.

When Davis informed Shaun Mayeux, Star’s president, that he was leaving Star to accept a job with ECS, Mayeux reminded Davis of his obligations under the confidentiality agreement. On January 9, 2009, Star sent a letter to Davis reminding him of his obligations under the confidentiality agreement and sent ECS a letter informing it of Davis’s obligations under the confidentiality agreement. Star subsequently discovered that Davis had e-mailed three of Star’s confidential documents from his Star e-mail account to his personal e-mail account, which was a violation of the confidentiality agreement. On January 16, 2009, Star’s attorney sent Davis a letter demanding that he return Star’s confidential documents and sent ECS a letter informing it that Davis had violated the confidentiality agreement and warning ECS that it would be tortiously interfering with Star’s contractual relations with Davis if it induced him to violate the confidentiality agreement. Davis returned two of the three confidential documents to Star on a compact disk and deleted the third from his personal e-mail account.

Within a few months of Davis’s leaving Star, Ray Rodriguez, ECS’s vice president, asked Davis to accompany him on a visit to Mobile Gas, one of Star’s customers. While he was working at Star, Davis had prepared the proposal that had resulted in Mobile Gas’s awarding Star the contract to maintain Mobile Gas’s HVAC equipment. Davis testified that Rodriguez probably knew that he had prepared Star’s proposal and that he accompanied Rodriguez to Mobile Gas because Rodriguez was his boss and had asked him to do so. At Mobile Gas, Rodriguez and Davis met with Daniel Caylor, the Mobile Gas employee with the authority to decide which company should be awarded the contract to maintain Mobile Gas’s HVAC equipment. The evidence was in conflict regarding whether Rodriguez and Davis solicited the contract to maintain Mobile Gas’s HVAC equipment at the meeting with Caylor. Davis testified that he and Rodriguez did not solicit it; however, Caylor testified that they did. Caylor further testified that he declined to switch the contract to maintain Mobile Gas’s HVAC equipment from Star to ECS.

Also within a few months of Davis’s leaving Star, Joel Beckham, an ECS employee, asked Davis to accompany him to a meeting with John Harnish, an employee of the Mississippi National Guard Readiness Center (“Readiness Center”) in Gulf-port, Mississippi. Readiness Center was one of Star’s customers, and Harnish was responsible for deciding which company should be awarded the contract to maintain Readiness Center’s HVAC equipment. Davis testified that he knew that Readiness Center was a customer of Star, that Beckham wanted Davis to accompany him to the meeting with Harnish because Davis had worked for Star, and that he and Beckham had solicited the contract to maintain Readiness Center’s HVAC equipment at the meeting with Harnish. Har-nish testified that Beckham and Davis told him that they thought ECS could do the work that Star was doing better and cheaper than Star. However, the undisputed evidence indicates that Readiness Center did not switch the contract to maintain its HVAC equipment from Star to ECS.

Davis also contacted Dauphin Way United Methodist Church (“Dauphin Way”) and Holiday Inn Downtown (“Holiday Inn”) in Mobile, who were customers of Star, and solicited the contracts to maintain their HVAC equipment on behalf of ECS. ECS terminated Davis’s employment in January 2010.

In 2009, Star had a contract to maintain the mechanical HVAC equipment of Little Sisters of the Poor (“Little Sisters”), while ECS had the contract to maintain the chiller equipment of Little Sisters. By letter dated January 29, 2010, Little Sisters informed Star that it would not be renewing Star’s contract. Mayeux testified that Little Sisters’ administrator, Sister Paul Mary, told him that ECS knew that Star’s price for maintaining Little Sisters’ mechanical HVAC equipment was $12,000 and that ECS was offering to maintain it for $2,000 less. Although Little Sisters subsequently agreed to continue using Star to maintain its mechanical HVAC equipment through September 30, 2010, it contracted for ECS to begin maintaining its mechanical HVAC equipment on October 1, 2010. Mayeux testified that Star had derived a profit from its contract with Little Sisters and that it lost that profit when it lost its contract with Little Sisters; however, he testified that, because its contract with Little Sisters was a fixed-price contract and Star’s cost for the labor and parts necessary to maintain Little Sisters’ mechanical HVAC equipment varied from year to year, the amount of its profit varied from year to year.

Drew Adams, ECS’s chief financial officer, testified that Little Sisters asked ECS to quote a price for maintaining its mechanical HVAC equipment, that ECS quoted a price, and that Little Sisters awarded ECS the contract to maintain the mechanical HVAC equipment. Adams testified that he never instructed Davis to go to Little Sisters and that, to his knowledge, Davis never went to Little Sisters on behalf of ECS. Adams admitted that ECS would have an advantage in competing with a competitor for a customer’s business if it knew the competitor’s price for doing that customer’s work.

Procedural History

On August 14, 2009, Star sued Davis, ECS, and Doyle, alleging that Davis had breached the confidentiality agreement and that ECS and Doyle had tortiously interfered with Star’s contractual relationship with Davis by inducing him to breach the confidentiality agreement. Answering, Davis denied breaching the confidentiality agreement, and ECS and Doyle denied tortiously interfering with Star’s contractual relationship with Davis. After a number of continuances, the trial court held a bench trial at which it received evidence ore tenus on July 20, 2011. On August 22, 2011, the trial court entered the following judgment:

“Upon consideration of the testimony and evidence submitted by the parties during the trial of this matter on July 20, 2011, the Court enters judgment in favor of Plaintiff [Star] and against Defendants Mark Davis and Engineered Cooling Services, Inc. in the amount of $1 in nominal damages and $30,000.00 in punitive damages, for a total judgment of $30,001.00. Judgment is rendered in favor of Pete Doyle. Costs are taxed against Defendants Mark Davis and Engineered Cooling Services, Inc.”

On September 19, 2011, ECS filed a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the judgment. The motion specifically requested that the trial court alter, amend, or vacate the punitive-damages award on the ground that it was excessive. After hearing ECS’s motion, the trial court entered an order denying ECS’s motion on September 30, 2011, without stating its reasons for determining that the punitive-damages award was not excessive. ECS then timely appealed to this court.

Analysis

I. Liability and Nominal Damages

ECS first argues that the trial court erred in finding in favor of Star with respect to the issue of liability and in awarding Star nominal damages because, ECS says, Star failed to prove (1) that ECS had interfered with Star’s contractual relationship with Davis and (2) that Star was damaged as a result. Because the trial court made no specific findings of fact, this court must assume that it made those findings necessary to support its judgment. Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992). The ore tenus rule applies to those implicit findings, and, therefore, we must presume that those implicit findings are correct unless they are plainly and palpably wrong. Id.

“In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of witnesses, and the trial court should accept only that testimony it considers to be worthy of belief. Ostrander v. Ostrander, 517 So.2d 3 (Ala.Civ.App.1987). Further, in determining the weight to be accorded to the testimony of any witnesss the trial court may consider the demeanor of the witness and the witness’s apparent candor or evasiveness. Ostrander, supra.... It is not the province of this court to override the trial court’s observations. Brown[ v. Brown, 586 So.2d 919 (Ala.Civ.App.1991) ].”

Woods v. Woods, 653 So.2d 312, 314 (Ala.Civ.App.1994). A de novo standard of review applies to the trial court’s conclusions of law and its application of the law to the facts. See Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

The essential elements of the tort of intentional interference with contractual or business relations are: “(1) the existence of a protectible business relationship; (2) of which the defendant knew; (3) to which the defendant was a stranger; (4) with which the defendant intentionally interfered; and (5) damage.” White Sands Group, L.L.C. v. PRS II, LLC, 32 So.3d 5, 14 (Ala.2009).

“The damages recoverable for intentional interference with a contractual relationship include:
“ ‘ “(1) the pecuniary loss of the benefits of the ... relation; (2) consequential losses for which the interference is a legal cause; ... (3) emotional distress or actual harm to reputation if either is reasonably to be expected to result from the interference,” KW Plastics v. United States Can Co., 131 F.Supp.2d 1265, 1268 (M.D.Ala.2001); and (4) punitive damages.’
“White Sands Group, L.L.C. v. PRS II, LLC, 32 So.3d 5, 17 (Ala.2009).”

Roberson v. C.P. Allen Constr. Co., 50 So.3d 471, 477 (Ala.Civ.App.2010).

In the present case, ECS does not challenge the existence of the first three essential elements of the tort of intentional interference with contractual or business relations. Consequently, it has waived the issue whether those three essential elements existed. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”). Therefore, in reviewing the trial court’s judgment, we must presume (1) that Star had a protectible business relationship with Davis, (2) that ECS knew of it, and (3) that ECS was a stranger to it.

With respect to the issue whether ECS intentionally interfered with Star’s contractual relationship with Davis, the trial court had before it undisputed evidence that would support a finding that, within a few months after Davis left Star, Rodriguez asked Davis to accompany him to the meeting with Caylor at Mobile Gas. The trial court also had before it evidence that would support a finding that, when he asked Davis to accompany him to the meeting with Caylor, Rodriguez knew that Davis had prepared Star’s proposal that had resulted in Mobile Gas’s awarding Star the contract to maintain Mobile Gas’s HVAC equipment. Although Davis testified that he and Rodriguez did not solicit the contract to maintain Mobile Gas’s HVAC equipment at the meeting with Caylor, Caylor testified that they did. The trial court, as the judge of the facts and the credibility of the witnesses, could have accepted Caylor’s testimony that Rodriguez and Davis solicited the contract to maintain Mobile Gas’s HVAC equipment at that meeting and rejected Davis’s conflicting testimony. Davis’s soliciting the contract to maintain Mobile Gas’s HVAC equipment on behalf of ECS within one year of his leaving Star constituted a violation of the confidentiality agreement. Thus, the evidence before the trial court would support a finding that ECS, through its agent Rodriguez, intentionally interfered with Star’s contractual relationship with Davis by inducing Davis to breach the confidentiality agreement by meeting with Caylor and soliciting the contract to maintain Mobile Gas’s HVAC equipment on behalf of ECS.

Moreover, the trial court had before it undisputed evidence establishing that, within a few months after Davis left Star, Beckham, who was an agent of ECS, asked Davis to go to the meeting with Harnish and that Beckham and Davis solicited the contract to maintain Readiness Center’s HVAC equipment on behalf of ECS at that meeting. Davis’s solicitation of the contract to maintain Readiness Center’s HVAC equipment on behalf of ECS within one year of his leaving Star constituted a violation of the confidentiality agreement. Thus, the trial court had evidence before it that would support a finding that ECS, through its agent Beckham, intentionally interfered with Star’s contractual relationship with Davis by inducing Davis to breach the confidentiality agreement by meeting with Harnish and soliciting the contract to maintain Readiness Center’s HVAC equipment on behalf of ECS.

The evidence was in conflict regarding Little Sisters’ switching the contract to maintain its mechanical HVAC equipment from Star to ECS. However, the trial court, as the judge of the facts and the credibility of the witnesses, could have accepted Mayeux’s testimony that Sister Paul Mary had told him that ECS knew that Star was charging Little Sisters $12,000 for maintaining its mechanical HVAC equipment and that ECS was offering to do that work for $2,000 less. The trial court could have inferred from the evidence indicating that ECS knew that Star’s price for maintaining Little Sisters’ mechanical HVAC equipment was $12,000 and that ECS had induced Davis to breach the confidentiality agreement by soliciting Mobile Gas and Readiness Center within one year of his leaving Star that ECS had also induced Davis to breach the confidentiality agreement by disclosing Star’s price for maintaining Little Sisters’ mechanical HVAC equipment to ECS. Thus, the trial court had evidence before it that would support a finding that ECS intentionally interfered with the contractual relationship between Star and Davis by inducing Davis to breach the confidentiality agreement by disclosing Star’s price for maintaining Little Sisters’ mechanical HVAC equipment to ECS.

The trial court also could have inferred from the evidence indicating that Davis had solicited Dauphin Way and Holiday Inn on behalf of ECS within one year of his leaving Star and that ECS had induced Davis to breach the confidentiality agreement by soliciting Mobile Gas and Readiness Center on behalf of ECS within one year of his leaving Star that ECS had also induced Davis to breach the confidentiality agreement by soliciting Dauphin Way and Holiday Inn on behalf of ECS within one year of his leaving Star. Thus, the trial court had before it evidence that would support a finding that ECS had intentionally interfered with the contractual relationship between Star and Davis by inducing Davis to breach the confidentiality agreement by soliciting Dauphin Way and Holiday Inn within one year of his leaving Star. Accordingly, we find no merit in ECS’s argument that the trial court erred in finding in favor of Star with respect to the issue of liability and in awarding Star nominal damages on the ground that Star failed to prove that ECS had interfered with Star’s contractual relationship with Davis.

With respect to the issue whether Star suffered damage as a result of ECS’s intentional interference with Star’s contractual relationship with Davis, the trial court had before it undisputed evidence indicating that Star had lost profits as a result of losing its contract with Little Sisters. As explained above, the trial court could have inferred from the evidence before it that ECS learned that Star was charging $12,000 to maintain Little Sisters’ mechanical HVAC equipment by inducing Davis to disclose that information in violation of the confidentiality agreement. Adams admitted that ECS’s knowledge of the price a competitor was charging a customer would give ECS an advantage in competing for that customer’s business. The trial court could have found that ECS used its knowledge of Star’s price to secure the contract to maintain Little Sisters’ mechanical HVAC equipment by offering to do it for $2,000 less than Star was charging. Thus, the trial court could have found from the evidence before it that Star had been damaged by the loss of the profit from its contract with Little Sisters as a consequence of ECS’s intentional interference with Star’s contractual relationship with Davis. Although the evidence did not indicate the specific amount of profit Star had lost, a plaintiff is entitled to an award of nominal damages when he or she proves that he or she was damaged by a defendant’s intentional interference with the plaintiffs contractual relations but cannot prove the specific amount of his or her damage. See Roberson v. C.P. Allen Constr. Co., 50 So.3d at 477-78. Accordingly, we find no merit in ECS’s argument that the trial court erred in finding in favor of Star with respect to the issue of liability and in awarding Star nominal damages on the ground that Star failed to prove it was damaged by ECS’s intentional interference with Star’s contractual relationship with Davis.

Because we find no merit in ECS’s arguments challenging the trial court’s finding in favor of Star with respect to the issue of liability and its awarding Star nominal damages, we affirm the trial court’s judgment insofar as it found in favor of Star with respect to the issue of liability and awarded Star nominal damages.

II. Punitive Damages

ECS also challenges the trial court’s award of punitive damages on several grounds. One of those grounds is that the trial court erred in failing to state its reasons for determining that the punitive-damages award was not excessive in its order denying ECS’s postjudgment motion. Because we conclude that the trial court should have stated its reasons for determining that the punitive-damages award was not excessive, see, e.g., Hammond v. City of Gadsden, 498 So.2d 1374, 1379 (Ala.1986), we remand the cause with instructions for the trial court to enter an order stating its reasons for determining that the punitive-damages award was not excessive. We further instruct the trial court to make a return to remand within 42 days.

AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.

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

On Return to Remand

BRYAN, Judge.

On June 8, 2012, we remanded this cause with instructions for the trial court to enter an order stating its reasons for determining that the punitive-damages award in the amount of $30,000 was not excessive. The trial court has entered such an order, and we will now address the remaining arguments of Engineered Cooling Services, Inc. (“ECS”), regarding the trial court’s award of punitive damages.

The trial court’s order on remand states:

“In compliance with the remand instructions, the following are the undersigned’s reasons for determining that the punitive damages awarded to the Plaintiff in this trial are not excessive:
“1. The undisputed evidence at trial confirms that the industry that Plaintiff Star Service, Inc. of Mobile (hereinafter ‘Star’) and Defendant Engineered Cooling Systems (hereinafter ‘ECS’) work in is highly competitive and that gaining knowledge of a competitor’s pricing and customer information would be a huge advantage. Furthermore, it was established that when Star first started in Mobile in 2000, it was the only company in the area that focused on fixed-cost maintenance agreements. Defendant Mark Davis (hereinafter ‘Davis’) started with Star in 2005 and had no prior experience in the commercial [heating, ventilation, and air-conditioning] industry. During the four years he worked at Star, Davis received extensive training from Star and learned how it operated its business.
“2. Davis was first approached by Defendant ECS about going to work for them in late 2008 and testified ECS and its President Pete Doyle explained to him that one reason they wanted to hire him and pay him almost two times what he was making at Star was because they wanted to build up their maintenance division of the company and they knew he had been at Star and learned from them.
“3. The undisputed evidence is that Davis had signed an Employee Confidentiality Agreement when he started at Star which among other things prevented him from using, disclosing or removing any of Star’s confidential and/or proprietary information and also prohibited him from contacting any of Star’s customers for a one year period from the time he left their employment. It was further undisputed that Defendant ECS was put on notice of this agreement by Star both at the time Davis left and again only days later.
“4. The undisputed evidence at trial established that not only did Davis immediately violate the agreement by taking highly confidential documents belonging to Star with him when he left that contained customer lists and pricing information, but that Defendant ECS also intentionally interfered with this agreement between Star and Davis within a few months of Davis becoming an employee when its Vice President and second in command (Ray Rodriguez) and another employee (Joel Beckham) had Davis accompany them to solicit business from companies that were known by all to be Star customers. In fact, it was proven that one of the companies approached by Davis and ECS, Mobile Gas, had just renewed its maintenance contract with Star in late 2008 and it was Davis who had put together and submitted the proposal to Mobile Gas on behalf of Star. Ray Rodriguez, Vice President of ECS, knew Mobile Gas was a Star customer and also knew that Davis had prepared and submitted the proposal for Star and still asked him to go with him to Mobile Gas to solicit their business.
“5. Star put on evidence from two of its customers, Mobile Gas (Danny Cay-lor) and Mississippi National Guard Readiness Center (John Harnish), and the testimony from both of these witnesses clearly supported Star’s position that ECS personnel accompanied Davis to meetings with these customers for the purpose of soliciting their business and that this was all done within the first several months after Davis left Star’s employment.
“6. This Court also finds that the clear and convincing credible evidence in this case establishes that ECS induced Davis to call on other Star customers, namely Dauphin Way United Methodist Church and Holiday Inn Downtown in an effort to solicit their business. Furthermore, this Court finds that ECS also induced Davis to provide them with information relating to the maintenance agreement Star had with The Little Sisters of the Poor, specifically, the price Star was charging for this work, all in violation of the Employee Confidentiality Agreement that ECS was fully aware of.
“7. It was not lost on this Court that after hiring Davis and basically doubling his compensation package, ECS fired him almost a year to the date after hiring him but not before engaging in the conduct set forth above wherein they intentionally and tortiously interfered with the contractual relationship between Star and Davis. After hearing all of the evidence, it is the Court’s opinion that Davis’ hiring was part of a plan by ECS to gain an unfair advantage in this highly competitive field and that ECS directed and induced Davis to violate his agreement with Star and did so all the while knowing of the Agreement and what was and was not allowed.
“8. This Court finds Defendant ECS’s conduct to be premeditated and so reprehensible that the $30,000 punitive damage award is not only not excessive in light of the overwhelming evidence in this case but is justified and necessary in order to punish and properly deter this type of conduct in the future. Regardless of whether ECS was successful in directly stealing away Star customers Mobile Gas, Mississippi National Guard Readiness Center, Dauphin Way United Methodist Church or Holiday Inn Downtown, and even though an exact figure could not be ascertained regarding lost profits from the Little Sisters of the Poor contract that Star Service lost, the potential harm that was likely to be suffered by Star in the loss of its customers was severe. It is the Court’s opinion that the egregious, wrongful conduct by ECS (albeit largely unsuccessful) justifies the punitive damages award in this case.
“9. ECS did not assert that the $30,000 punitive damages award had any significant impact on its financial position.
“10. There is no indication that ECS has already been punished, civilly or criminally, for the conduct which resulted in the punitive damages award.
“11. Finally, although no evidence was submitted as to the litigation cost to Star, the Court notes that Star retained highly competent counsel who presumably did not work for free.”

ECS argues that the trial court erred in awarding punitive damages because, ECS says, Mark Davis breached his “Employee Confidentiality Agreement” (“the confidentiality agreement”) with Star Service, Inc. of Mobile (“Star”), without being induced to do so by ECS. However, as we indicated in our opinion of June 8, 2012, there was substantial evidence before the trial court that would support a finding that ECS did indeed induce Davis to breach the confidentiality agreement, and the trial court made such a finding in its order on remand. Because that finding is supported by substantial evidence, we cannot hold that it is erroneous. See Allsopp v. Bolding, 86 So.3d 952, 959 (Ala.2011) (“ ‘Under the ore tenus standard of review, we must accept as true the facts found by the trial court if there is substantial evidence to support the trial court’s findings.’ ” (quoting Beasley v. Mellon Fin. Servs. Corp., 569 So.2d 389, 393 (Ala.1990))). Therefore, ECS’s first argument has no merit.

ECS also argues that the trial court erred in awarding punitive damages because, ECS says, Star was not damaged. However, as we indicated in our opinion of June 8, 2012, there was substantial evidence before the trial court that would support a finding that Star was damaged by the loss of the profit it had derived from its contract to maintain the mechanical heating, ventilation, and air-conditioning (“HVAC”) equipment of Little Sisters of the Poor (“Little Sisters”), and the trial court made such a finding in its order on remand. Because that finding is supported by substantial evidence, we cannot hold that it is erroneous. Id. Therefore, we find no merit in ECS’s second argument.

Finally, ECS argues that the trial court’s award of punitive damages is excessive because, ECS says, the ratio of punitive damages to nominal damages is greater than 3 to 1. An appellate court applies a de novo standard of review to a trial court’s determination regarding whether a punitive-damages award is excessive. See Ross v. Rosen-Rager, 67 So.3d 29, 41 (Ala.2010).

“In reviewing a punitive-damages award, we apply the factors set forth in Green Oil [Co. v. Hornsby, 539 So.2d 218, 223-24 (Ala.1989) ], within the framework of the ‘guideposts’ set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), and restated in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 418, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). See AutoZone, Inc. v. Leonard, 812 So.2d 1179, 1187 (Ala.2001) (Green Oil factors remain valid after Gore).
“The Gore guideposts are: ‘(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.’ Campbell, 538 U.S. at 418, 123 S.Ct. 1513. The Green Oil factors, which are similar, and auxiliary in many respects, to the Gore guideposts, are:
“‘(1) the reprehensibility of [the defendant’s] conduct; (2) the relationship of the punitive-damages award to the harm that actually occurred, or is likely to occur, from [the defendant’s] conduct; (3) [the defendant’s] profit from [his] misconduct; (4) [the defendant’s] financial position; (5) the cost to [the plaintiff] of the litigation; (6) whether [the defendant] has been subject to criminal sanctions for similar conduct; and (7) other civil actions [the defendant] has been involved in arising out of similar conduct.’
“Shiv-Ram, Inc. v. McCaleb, 892 So.2d 299, 317 (Ala.2003) (paraphrasing the Green Oil factors).”

Ross, 67 So.3d at 41-42.

Reprehensibility: The First Gore Guidepost and Green Oil Factor (1)

“ ‘[T]he most important indici-um of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.’ ” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (quoting BMW of North America, Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)). For purposes of the first Gore guidepost, the degree of reprehensibility of the defendant’s conduct should be determined by considering whether “the harm caused was physical as opposed to economic; the tor-tious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.” State Farm, 538 U.S. at 419. In the present case, ECS’s tortious conduct caused economic harm rather than physical harm. Moreover, its tortious conduct did not evince an indifference to or a reckless disregard of the health or safety of others. Furthermore, there is no evidence indicating that Star, the target of ECS’s tortious conduct, was financially vulnerable. However, in its order on remand, the trial court found that ECS’s tortious conduct was intentional and premeditated and that it involved repeated actions rather than an isolated incident. As we indicated in our opinion of June 8, 2012, there was substantial evidence before the trial court that would support such findings. Therefore, we must accept them as true. See Allsopp, 86 So.3d at 959.

“ ‘Our assessment of the degree of the reprehensibility of the defendant’s conduct is broader in a Hammond/Green Oil review than our assessment in a [Gore] review.’ Employees’ Benefit Ass’n v. Grissett, 732 So.2d 968, 980 (Ala.1998). In that regard, we consider ‘ “[t]he duration of the conduct, the degree of the defendant’s awareness of any hazard which his conduct has caused or is likely to cause, and any concealment or ‘cover up’ of that hazard, and the existence and frequency of similar past conduct.” ’ Green Oil, 539 So.2d at 223 (quoting Aetna Life Ins. Co. v. Lavoie, 505 So.2d 1050, 1062 (Ala.1987) (Houston, J., concurring specially)).”

Shiv-Ram, Inc. v. McCaleb, 892 So.2d 299, 317 (Ala.2003).

In the present case, in its order on remand, the trial court found that ECS had engaged in its tortious conduct over a period of months and that ECS was aware that its tortious conduct, if successful, would cause Star economic harm. As we indicated in our opinion of June 8, 2012, there was substantial evidence before the trial court that would support such findings. Therefore, we must accept them as true. See Allsopp, 86 So.3d at 959. There is no evidence indicating that ECS concealed a hazard or that it had engaged in similar tortious conduct in the past.

Because ECS intentionally engaged in repeated tortious acts over a period of months with the awareness that its tor-tious acts, if successful, would cause Star economic harm, we conclude that the first Gore guidepost and Green Oil factor (1) weigh in favor of a finding that the trial court’s punitive-damages award is reasonable.

Proportionality: The Second Gore Guidepost and Green Oil Factor (2)

As noted above, ECS argues that the punitive-damages award is ipso facto excessive because the ratio of punitive damages to nominal damages is greater than 3 to 1. In State Farm, 538 U.S. at 425, the United States Supreme Court stated that, “in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” However, that court has also stated that there is no “bright-line ratio which a punitive damages award cannot exceed,” State Farm, 538 U.S. at 425, and that

“low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages. A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine.”

Gore, 517 U.S. at 582.

The United States Supreme Court has not addressed the application of the second Gore guidepost in a case in which only nominal and punitive damages have been awarded. In Tanner v. Ebbole, 88 So.3d 856, 875-76 (Ala.Civ.App.2011) (opinion on return to remand), a plurality decision, this court stated:

“When substantial punitive damages are awarded in a case with only nominal compensatory damages, the ratio will invariably far exceed a single-digit ratio. Although the issue has not been addressed in Alabama, many other courts have struggled with applying the ratio or ‘proportionality’ guidepost of Gore when only nominal compensatory damages have been awarded. See Arnold v. Wilder, 657 F.3d 353, 370 (6th Cir.2011) (stating that the ‘ “Supreme Court’s cases on the ratio component of the ex-cessiveness inquiry — which involved substantial compensatory damages awards for economic and measurable noneconomic harm — are ... of limited relevance” in § 1983 cases where “the basis for the punitive damages award was the plaintiffs unlawful arrest and the plaintiffs economic injury was so minimal as to be essentially nominal” ’ (quoting Romanski v. Detroit Entm’t, L.L.C., 428 F.3d 629, 645 (6th Cir.2005))); Mendez v. County of San Bernardino, 540 F.3d 1109, 1121 (9th Cir.2008) (upholding a 125,000-to-l ratio in a § 1983 case and concluding that ‘[r]a-tios in excess of single digits in § 1983 suits ... will not generally violate due process when the victim suffers no com-pensable injury’); Abner v. Kansas City Southern R.R., 513 F.3d 154, 164 (5th Cir.2008) (upholding a punitive-damages award of $125,000 for each plaintiff in a Title VTI racial-discrimination case when the jury awarded each plaintiff $1 in nominal damages and stating that, ‘as we have found in punitive damages cases with accompanying nominal damages, a ratio-based inquiry becomes irrelevant’); Romanski, 428 F.3d at 645 (stating that ‘[t]his Court and other courts have recognized that where “injuries are without a ready monetary value,” such as invasions of constitutional rights unaccompanied by physical injury or other compensable harm, higher ratios between the compensatory or nominal award and the punitive award are to be expected’); Kemp v. American Tel. & Tel. Co., 393 F.3d 1354, 1364 (11th Cir.2004) (reducing punitive damages of $1 million to $250,000 when plaintiff was awarded $115.05 in compensatory damages and stating that a single-digit multiplier ratio ‘would utterly fail to’ punish and deter the defendant); Williams v. Kaufman County, 352 F.3d 994, 1016 (5th Cir.2003) (stating that ‘any punitive damages-to-compensatory damages “ratio analysis” cannot be applied effectively in cases where only nominal damages have been awarded’); Local Union No. 38, Sheet Metal Workers’ Int’l Ass’n v. Pelella, 350 F.3d 73, 88 (2d Cir.2003) (stating that ‘the ratios referred to in [State Farm ] may not apply with equal force when punitive damages are compared to nominal damages’); DiSorbo v. Hoy, 343 F.3d 172, 187 (2d Cir.2003) (noting that, when nominal compensatory damages are awarded, ‘ “the use of a multiplier to assess punitive damages is not the best tool_”’ (quoting Lee v. Edwards, 101 F.3d 805, 811 (2d Cir.1996))); Lee, 101 F.3d at 811 (holding that, when compensatory damages are nominal, ‘a much higher ratio [of punitive damages to compensatory damages] can be contemplated’); Sherman v. Kasotakis, 314 F.Supp.2d 843, 871 (N.D.Iowa 2004) (stating that ‘the ... prudent path [when an award of compensatory damages is nominal] is to apply the Gore guideposts, but [to] place less emphasis on the proportionality requirement’); Howard Univ. v. Wilkins, 22 A.3d 774, 784 (D.C.2011) (upholding punitive-damages award of $43,677.50 when plaintiff was awarded $1 in compensatory damages and stating that, because ‘ “[punitive damages may properly be imposed to further a State’s legitimate interest in punishing unlawful conduct and deterring its repetition,” .... there is no need to disturb the jury’s punitive damages award under the second Gore guidepost’ (quoting Gore, 517 U.S. at 568)); and [Lawnwood Med. Ctr., Inc. v.] Sadow, 48 So.3d [710] at 732 [ (Fla.Dist.Ct.App.2010) ] (stating that ‘[n]othing in [Gore] and State Farm hints how an arithmetical ratio used in cases of purely • economic misconduct would function’ in a case in which the jury awarded zero compensatory damages and $5 million punitive damages for slander).”

In the present case, because Star could not prove the specific amount of the profits it lost as a result of losing the contract to maintain Little Sisters’ mechanical HVAC equipment, the trial court awarded nominal damages in the amount of $1 only. Consequently, adherence to a single-digit ratio of punitive damages to nominal damages in the present case would result in a maximum punitive-damages award of $9, while the 3-to-l ratio advocated by ECS would result in a punitive-damages award of $3. Alabama has “legitimate interests in punishing unlawful conduct and deterring its repetition.” Gore, 517 U.S. at 568. Considering the reprehensibility of ECS’s tortious conduct, neither an award of $3 nor an award of $9 would effectively punish ECS for its tortious conduct or deter it from repeating it.

In Tanner, supra, the trial court’s judgment, which was entered on a jury verdict, made awards of nominal damages and punitive damages against each of the three defendants. The judgment made an award of nominal damages in the amount of $1 and an award of punitive damages in the amount of $100,000 against one of the defendants, Paul Averette, Jr. Thus, in the case of the awards against Averette, the ratio of punitive damages to nominal damages was 100,000 to 1. Nonetheless, a plurality of this court upheld the punitive-damages award against Averette. 88 So.3d at 881-82. The plurality concluded that, given the reprehensibility of Aver-ette’s conduct and the fact that nominal damages of only $1 had been awarded, the application of a strict ratio analysis would undermine Alabama’s legitimate interests in punishing unlawful conduct and deterring its repetition. 88 So.3d at 876. The same is true in the present case.

In Gore, the United States Supreme Court stated: “Only when an award [of punitive damages] can fairly be categorized as ‘grossly excessive’ in relation to [a state’s interests in punishing unlawful conduct and deterring its repetition] does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment.” 517 U.S. at 568. In the present case, we conclude that, given the reprehensibility of ECS’s conduct and the fact that nominal damages of only $1 were awarded, the trial court’s award of punitive damages in the amount of $30,000 cannot be characterized as “grossly excessive” in relation to Alabama’s legitimate interests in punishing unlawful conduct and deterring its repetition. Accordingly, we conclude that the second Gore guidepost and Green Oil factor (2) do not weigh in favor of a finding that the punitive-damages award in the present case is excessive.

ECS’s Profit from Its Misconduct: Green Oil Factor (3)

ECS did not introduce any evidence relating to this factor in the trial court and does not argue on appeal that this factor weighs in favor of a finding that the punitive-damages award is excessive.

The Financial Position of ECS: Green Oil Factor (k)

ECS did not introduce any evidence relating to this factor in the trial court and does not argue on appeal that this factor weighs in favor of a finding that the punitive-damages award is excessive.

The Cost to the Plaintiff of the Litigation: Green Oil Factor (5)

The record contains no evidence regarding this factor, and ECS does not argue that it weighs in favor of a finding that the punitive-damages award is excessive.

Sanctions for Comparable Conduct: The Third Gore Guidepost and Green Oil Factors (6) and (7)

The record contains no evidence indicating that ECS was subject to civil or criminal sanctions for its tortious conduct or that it had been involved in other civil actions arising out of similar tortious conduct. Moreover, ECS does not argue that this Gore guidepost and these Green Oil factors weigh in favor of a finding that the punitive-damages award is excessive.

In summary, the first Gore guidepost and Green Oil factor (1) weigh in favor of a finding that the trial court’s award of punitive damages in the amount of $80,000 is reasonable, and none of the Gore guideposts or Green Oil factors weigh in favor of a finding that that award is excessive. Accordingly, we conclude that the trial court’s award of punitive damages in the amount of $80,000 is not excessive, and, therefore, we affirm the trial court’s judgment with respect to that award.

AFFIRMED.

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

      . Davis did not file a notice of appeal.


author: MOORE, Judge.

text:
    Darry LEE v. STATE of Alabama ex rel. Robert L. BROUSSARD, District Attorney of Madison County.
    2110751.
    Court of Civil Appeals of Alabama.
    Oct. 5, 2012.

      Joe M. Reed of Joe M. Reed & Associates, LLC, Montgomery, for appellant.
    Luther Strange, atty. gen., and J. Matt Bledsoe, asst. atty. gen., for appellee.
   MOORE, Judge.

On February 4, 2010, the State of Alabama, on behalf of Robert L. Broussard, District Attorney of Madison County, filed a complaint seeking the forfeiture of $3,000 in United States currency (“the cash”) and a 2003 Infiniti G35 automobile seized from Jarvis Woods. The complaint alleged that the vehicle was registered to Darry Lee (“Darry”) but was believed to be owned by Woods. Woods and Darry were both added as parties to the action. On February 19, 2010, Woods answered the complaint. Darry filed an answer on March 5, 2010, asserting that he was the owner of the cash and the Infiniti. On September 1, 2011, Woods filed a consent to the forfeiture of the cash and the Infiniti. On September 6, 2011, the trial court entered a judgment forfeiting all rights Woods possessed in the cash and the Infiniti and stating that the action would remain pending for a decision regarding Darry’s interest in that property. After a trial, the trial court entered a judgment on March 22, 2012, stating, in pertinent part:

“This is a condemnation proceeding brought by the Madison County District Attorney’s Office pursuant to Alabama Code [1975,] § 20-2-93 seeking the forfeiture of Three Thousand Dollars ($3,000.00) in U.S. Currency and One (1) 2003 Infiniti G35, ... seized from Jarvis Woods during his arrest for trafficking in cocaine. Darry Lee, the registered owner of the vehicle, was an Intervenor in this action. The case was heard ore tenus on March 12, 2012. Woods entered a Consent to Forfeiture....
“Based upon the evidence presented by the State and the inferences attendant thereto, the Court is reasonably satisfied that the currency and vehicle were used in violation of the statute and that the State presented a prima facie case.... Based upon the testimony of [an investigator] that this same vehicle had been under investigation some six or seven months prior as part of an drug investigation involving Bill Oscar Lee, brother to Darry, and that [the investigator] had spoken to Darry Lee about Bill Oscar Lee using the vehicle and purchasing this and other vehicles in Darry Lee’s name to keep said vehicles from being seized by the police, the Court finds that [Darry] Lee is not an ‘innocent owner’ as contemplated by statute.
“It is therefore ORDERED, ADJUDGED and DECREED by the Court that the Three Thousand Dollars ($3,000.00) in U.S. Currency and One (1) 2003 Infiniti G35 ... are declared contraband and [are] hereby forfeited to the plaintiff for use in law enforcement. The vehicle is awarded to the Huntsville Madison County Strategic Counterdrug Team.”

(Capitalization in original.) On May 3, 2012, Darry filed his notice of appeal to this court.

Discussion

Darry appeals only that part of the trial court’s judgment pertaining to the forfeiture of the Infiniti. In its judgment, the trial court found that Darry “is not an ‘innocent owner’” of the Infiniti. The State construes that language, along with the preceding language referring to Bill Oscar Lee as the purchaser of the Infiniti, as a factual finding that Darry did not own the Infiniti, but that Bill Oscar Lee did. If the State is correct, Darry would have no interest in the Infiniti and, thus, would lack standing to pursue an appeal of the forfeiture judgment, and his appeal would be due to be dismissed. See Dobyne v. State, 4 So.3d 506, 510 (Ala.Civ.App.2008). However, under those circumstances, the judgment would be void for failing to join Bill Oscar Lee as an indispensable party. See Hillbert v. State, 66 So.3d 779 (Ala.Civ.App.2010).

On the other hand, the language of the judgment could be construed as a finding that Darry, who indisputably was registered as the titleholder, owned the Infini-ti, but that Darry was not an “innocent” owner within the meaning of § 20 — 2—93(h), Ala.Code 1975, because he was aware of its use in drug-related activity. See State ex rel. Watkins v. Sellers, 894 So.2d 733 (Ala.Civ.App.2004). In such case, Darry would have standing to appeal the judgment to contest the sufficiency of the evidence in support of that finding. See generally Jester v. State, 668 So.2d 822 (Ala.Civ.App.1995).

Because we are to construe judgments so as to support, rather than to defeat, their validity, see Ex parte Snider, 929 So.2d 447, 457 (Ala.2005) (quoting Clark v. Board of Dental Exam’rs of Georgia, 240 Ga. 289, 294, 240 S.E.2d 250, 254 (1977), quoting in turn Byrd v. Goodman, 195 Ga. 621, 621, 25 S.E.2d 34, 35 (1943) (Syllabus by the Court)) (“ ‘ “When a judgment is susceptible of two meanings, one of which would render it illegal and the other proper, that construction will, if reasonably possible, be given it that would render it legal.” ’ ”), we conclude that the trial court intended the latter meaning. Thus, we reject the State’s contention that Darry lacks standing to appeal the judgment.

Turning to the merits, Darry maintains that the record does not contain sufficient evidence indicating that the Infiniti had been used to transport or to facilitate the transport of a controlled substance so as to be subject to forfeiture under § 20-2-293(a)(5), Ala.Code 1975. We agree.

The evidence in the record indicates that, during a 2010 surveillance operation, the State uncovered evidence indicating that Woods was selling cocaine out of his residence and arrested him. The Infiniti was parked at that residence at the time of Woods’s arrest. Woods informed the arresting officer that the Infiniti belonged to Bill Oscar Lee, although it was titled in Darry’s name, and that Woods drove the Infiniti; however, the arresting officer did not find drugs in the Infiniti or observe Woods using it to transport drugs. The arresting officer also testified that he was not aware of any money being found in the Infiniti. An investigator with the Madison Police Department testified that, during an earlier investigation in 2009, Bill Oscar Lee had told him that he owned the Infini-ti, that the officer had observed Bill Oscar Lee driving the Infiniti, and that the keys to the Infiniti had been seized in a search of Bill Oscar Lee’s home. Darry testified that he owned the Infiniti, that he allowed Bill Oscar Lee to drive the Infiniti, even after acquiring knowledge that Bill Oscar Lee was involved in drug trafficking, and that the Infiniti had never been used for drug-related purposes to Darry’s knowledge.

The record contains no direct evidence indicating that the Infiniti had been used to facilitate any violation of the controlled-substance laws. At worst, the evidence indicates that known drug traffickers sometimes drove the Infiniti. That evidence alone, however, is not sufficient circumstantial evidence to prove that the In-finiti was ever used for illegal purposes. See Harris v. State, 821 So.2d 177, 185 (Ala.2001) (although the State proved that drug trafficker actually owned automobile that was titled in a relative’s name, in absence of evidence of illegal drugs in the automobile, evidence indicating that illegal drugs had been transported in the automobile, or evidence that the automobile had been purchased with funds derived from illegal drug transactions, circuit court committed plain and palpable error in ordering forfeiture of automobile).

“‘In a § 20-2-93, Ala.Code 1975, forfeiture proceeding, the State may establish a prima facie case by showing that the item to be forfeited was used, or intended to be used, in violation of the Alabama Uniform Controlled Substances Act. Culpepper v. State, 587 So.2d 359 (Ala.Civ.App.1991). The standard of that proof is reasonable satisfaction. Agee v. State ex rel. Galanos, 627 So.2d 960 (Ala.Civ.App.1993)....’”

Harris, 821 So.2d at 185 (quoting Robbs v. State ex rel. Whetstone, 674 So.2d 1301, 1302 (Ala.Civ.App.1995)).

“[W]here, as here, the trial court entered its judgment after hearing disputed oral testimony, the ore tenus standard applies to our review of the trial court’s findings of fact, and we will not disturb its judgment based on those findings unless those findings are plainly and palpably wrong and not supported by the evidence.”

$3,011 in United States Currency v. State, 845 So.2d 810, 813-14 (Ala.Civ.App.2002).

We conclude that the trial court committed plain and palpable error insofar as it found that the Infiniti should be forfeited. We therefore reverse the judgment, and we remand the case for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: BRYAN, Judge. THOMPSON,

text:
    Ex parte A.J. (In re J.C. v. A.J.).
    2110879.
    Court of Civil Appeals of Alabama.
    Oct. 5, 2012.

      Beverly Paschal Poston, Cullman, for petitioner.
    Andria Richter, Cullman, for respondent.
   BRYAN, Judge.

A.J. (“the mother”) petitions this court for a writ of mandamus ordering the Cull-man Circuit Court (“the trial court”) to vacate a pendente lite custody order. We deny the petition.

Procedural History

On July 20, 2011, J.C. (“the father”) filed a petition seeking to adjudicate his paternity of B.L.C. (“the child”), a child born in July 2010. In his petition, the father also requested an award of “primary” custody of the child. The mother filed an answer and a counterclaim for an adjudication of paternity of the child and an award of “full” custody of the child.

After a hearing on March 29, 2012, the trial court, on April 5, 2012, entered a “temporary order” pursuant to an agreement of the parties (“the April 5 order”) that awarded the father, among other things, unsupervised visitation with the child from 4:00 p.m. on Tuesday April 10, 2012, until 1:00 p.m. on Wednesday April 11, 2012. In the April 5 order, the trial court also awarded the father the same Tuesday night visitation on April 17, 2012, and set the case for trial on April 25, 2012. The father was ordered to pay the mother $861 a month in child support.

On May 10, 2012, the father filed an unverified “Motion for Immediate Relief,” requesting an order awarding him temporary custody of the child and awarding the mother visitation with the child. The father alleged that he had picked up the child for visitation on May 1, 2012, and that the child “was covered with scratches and bruises, and she was filthy from head to toe.” The father further alleged that he had discovered bite marks on the child’s back and that the mother had a history of biting her children. The father stated that he feared for the safety and physical well-being of the child and that the mother was unable to provide a healthy and safe environment for the child. The father attached to his motion several undated photographs of the child that allegedly supported his allegations. The father’s motion contained a certificate of service indicating that the pleading had been served on the mother. However, on the same day, May 10, 2012, the trial court entered an ex parte order granting the father temporary legal and physical custody of the child (“the May 10 ex parte order”). The trial court awarded the mother supervised visitation with the child on Mondays, Wednesdays, and Fridays for two hours each day. The trial court also suspended the father’s child-support obligation pending further orders of the court.

On May 17, 2012, the mother filed a motion to vacate the May 10 ex parte order. The mother argued that the trial court’s order violated her due-process rights because the child was removed from her custody without giving her notice and an opportunity to be heard. She also argued that the May 10 ex parte order was erroneously entered because the father’s allegations were unverified, there were no supporting affidavits filed with the father’s motion, the photographs attached to the motion were unauthenticated, and there was no allegation that the child was subject to immediate and irreparable injury. In support of her motion to vacate the May 10 ex parte order, the mother attached seven affidavits from herself and various family members that disputed the allegations in the father’s motion for immediate relief, alleged that the child was unsafe in the father’s custody, and set forth the mother’s ability to care for the child. On May 18, 2012, the father filed a “verified answer” disputing the allegations in the mother’s motion to vacate, and he attached affidavits from himself, his current wife, and his mother that supported the allegations in his motion for immediate relief, set forth his ability to care for the child, and alleged that the mother was not capable of caring for the child.

The State Judicial Information System indicates that, on May 21, 2012, the trial court scheduled a hearing to be conducted on May 31, 2012, on the mother’s motion to vacate the May 10 ex parte order and that notice of the hearing was “sent to all.” The materials attached to the mother’s petition for a writ of mandamus indicate that the trial court conducted a hearing on May 31, 2012, but the mother did not attach a transcript of that hearing to her petition. The trial court entered an order on June 1, 2012 (“the June 1 order”), vacating the May 10 ex parte order. The trial court noted in its June 1 order that the father had not yet been adjudicated the father of the child despite the fact that genetic testing revealed that he was the father of the child. Thus, the trial court specifically adjudicated the father as the father of the child. The trial court then awarded the mother and the father “week to week visitation” with the child and stated that the father’s child-support obligation was still suspended. The trial court set the “determination of custody” for a hearing on June 19, 2012. The mother filed this petition for a writ of mandamus on June 14, 2012.

Issues and Relief Requested

In her petition, the mother argues that the trial court’s May 10 ex parte order and its June 1 order are due to be vacated because she was denied due process of law. The mother seeks an order from this court vacating the May 10 ex parte order and the June 1 order so that the custody and child-support provisions in the April 5 order will be reinstated.-

Discussion

“ ‘A writ of mandamus is an extraordinary remedy, and it “will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” ’ ”

Ex parte Monsanto Co., 862 So.2d 595, 604 (Ala.2003) (quoting Ex parte Butts, 775 So.2d 173, 176 (Ala.2000) (quoting in turn Ex parte United Sen. Stations, Inc., 628 So.2d 501, 503 (Ala.1993))).

Initially, we note that the mother’s petition for a writ of mandamus insofar as it challenges the propriety of the May 10 ex parte order is not reviewable by this court because the May 10 ex parte order has already been vacated by the trial court. Thus, the May 10 ex parte order is a nullity, and there is nothing for this court to review.

Accordingly, we will consider only the arguments presented by the mother regarding the propriety of the June 1 order. The mother argues that the trial court violated her due-process rights by modifying the April 5 order without receiving any evidence to support the June 1 order. In support of her argument, the mother cites this court’s decision in Ex parte Russell, 911 So.2d 719, 724-25 (Ala.Civ.App.2005). In that case, the mother was awarded sole physical custody of the children in the parties’ divorce judgment and the father subsequently filed a petition to modify custody and a motion to set an expedited pendente lite custody hearing. Id. at 720. The trial court conducted a pendente lite hearing and awarded the father pendente lite custody of the children when the mother failed to appear at the hearing. Id. at 720-21. When the trial court was later informed that the mother had not been served with notice of the scheduled pendente lite hearing, the trial court made a notation on the case-action summary that the pendente lite order was entered ex parte. Id. at 721. The mother filed a motion to “reconsider,” and the trial court scheduled another hearing at which only the arguments of counsel were presented to the trial court. Id. At that hearing, the mother’s counsel stated: “ ‘Why I stand here today is simply to try to get the ex parte order reversed and set aside and get a hearing date set so that we can address these issues and give my client due process.’ ” Id. After the hearing, the trial court entered a second pendente lite order, keeping the “status quo,” with the father maintaining pendente lite custody of the children. Id. at 722. The mother filed a petition for a writ of mandamus, and we held that the ex parte pendente lite order violated the mother’s due-process rights because the mother had not been given notice or an opportunity to be heard and because there was no evidence indicating that the health and physical well-being of the children were endangered on the date the ex parte pendente lite order was entered. Id. at 724.

We then considered whether the second pendente lite order violated the mother’s due-process rights “because it was entered in the absence of any supporting evidence.” Id. Thus, this court considered “whether, in a postdivorce proceeding in a circuit court brought by a parent to modify custody, evidence must be presented to justify a pendente lite custody order.” Id. at 724-25. We concluded “that due process required that, before the trial court awarded the father pendente lite custody, the father introduce evidence establishing that an award of pendente lite custody to him was in the best interest of the child.” Id. at 725. Although the parties’ attorneys had presented arguments to the court at the second pendente lite hearing, we noted that “[t]he unsworn statements, factual assertions, and arguments of counsel are not evidence.” Id. (citing Singley v. Bentley, 782 So.2d 799, 803 (Ala.Civ.App.2000)). We therefore granted the mother’s petition for a writ of mandamus and ordered the trial court to vacate the second pen-dente lite order because the second pen-dente lite order was unsupported by any evidence and, thus, violated the mother’s due-process rights. Id.

The mother in this case asks this court to order the trial court to vacate the June 1 order, which essentially awarded the parties pendente lite joint physical custody of the child, because, she asserts, like in Ex parte Russell, there was no evidence presented to support the pendente lite custody award. However, we find the facts of this case materially distinguishable from the facts in Ex parte Russell. First, although the mother contends that the trial court considered only the arguments of counsel at the May 31 hearing, the mother did not include a transcript of that hearing in the materials attached to her petition for a writ of mandamus, so we have no way of knowing what transpired during that hearing. See Ex parte Guaranty Pest Control, Inc., 21 So.3d 1222, 1228 (Ala.2009) (“When [an appellate cjourt considers a petition for a writ of mandamus, the only materials before it are the petition and the answer and any attachments to those documents.”). Furthermore, unlike the facts in Ex parte Russell, the materials attached to the mother’s petition fail to demonstrate that the mother requested an evidentiary hearing on the father’s pending request for relief before the trial court entered its June 1 order. Thus, to issue a writ of mandamus directing the trial court to vacate the June 1 order because it failed to first conduct an eviden-tiary hearing leaves open the possibility that this court would hold the trial court in error for failing to grant relief to the mother that was never requested by the mother. Finally, we are unable to conclude, as we did in Ex parte Russell, that the father’s pending petition for pendente lite custody of the child was not supported by any evidence. Even if we assume that no evidence was presented at the May 31 hearing, the trial court had before it 10 affidavits from the mother, the father, and their family members concerning each party’s ability to care for the child. The mother does not contend that the sworn statements in the affidavits do not support the trial court’s determination that the best interests of the child would be served by awarding the mother and the father pendente lite joint physical custody of the child.

The mother contends that, once the May 10 ex parte order was vacated, the trial court should have reinstated the April 5 order. However, even after the trial court determined that the May 10 ex parte order was due to be vacated, the father’s motion for pendente lite custody of the child was still pending. Considering that the trial court had some evidence before it and that there is no indication that the mother requested the opportunity to present additional evidence before the trial court ruled on the father’s motion, we cannot conclude that the mother has demonstrated a clear legal right to the relief sought in her petition. See Ex parte Monsanto Co., 862 So.2d at 604. Accordingly, we deny the petition.

The mother’s request for an attorney fee on appeal is denied.

PETITION DENIED.

PITTMAN, J., concurs.

THOMPSON, P.J., concurs specially.

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

THOMAS, J., recuses herself.

THOMPSON,

Presiding Judge, concurring specially.

A petitioner seeking a writ of mandamus bears a high burden.

“The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows ‘ “ ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ” ’ Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala.1996)); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala.1999).”

Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala.2005). As detailed in the main opinion, A.J., the mother, failed to meet that high burden in this case; therefore, her petition must be denied.

      .There is a distinction recognized in Alabama law between “pendente lite” custody orders, which "are generally entered only during the pendency of the litigation and are usually replaced by a final order or judgment that is entered at the end of the litigation," and a "temporary” custody order, which actually awards "permanent custody subject to change.” Ex parte J.P., 641 So.2d 276, 278 (Ala.1994). Although the order entered on April 5, 2012, was designated by the trial court as a “temporary order,” the order set the case for trial on April 25, 2012. Accordingly, we conclude that the April 5, 2012, order was actually a pendente lite order.

      . It appears from the materials attached to the mother’s petition for a writ of mandamus that the trial scheduled for April 25, 2012, was continued.

      . Although the April 5 order does not specifically award the mother pendente lite sole physical custody of the child, the terms of the order essentially make such an award: the father was awarded limited visitation with the child and was ordered to pay child support to the mother. Cf. T.B. v. C.D.L., 910 So.2d 794, 795 (Ala.Civ.App.2005) (holding that a child-support judgment in a paternity action constituted a custody award in favor of the recipient parent).

      . Furthermore, the mother’s petition, for a writ of mandamus was not filed within a reasonable time of the entry of the May 10 ex parte order. See Ex parte A.E.Q., 102 So.3d 388, 390 (Ala.Civ.App.2012) (dismissing a petition for a writ of mandamus taken from an order entered in a paternity action for lack of jurisdiction when the petition was not filed within 14 days of the entry of the order under review).

      . The mother argues that the father was required to meet the custody-modification burden set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), in order to modify the custody provisions of the April 5 order. We disagree. The April 5 order, like the June 1 order, was a pendente lite order, not a final determination of custody. "[Wjhether to grant a pendente lite order is in the trial court’s discretion,” P.B. v. P.C., 946 So.2d 896, 898 (Ala.Civ.App.2006), and a trial court’s pendente lite custody determination is based on the best interests of the child. See Ex parte Russell, 911 So.2d 719, 725 (Ala.Civ.App.2005) (concluding that the parent requesting pendente lite custody of the child must present evidence establishing that such an award is in the best interest of the child). We also note, for the benefit of the parties, that the entry of a pendente lite order does not affect the applicable burden of proof regarding the underlying petitions for custody. See Sims v. Sims, 515 So.2d 1, 3 (Ala.Civ.App.1987) (holding that a pendente lite custody award, in itself, does not "activate” the burden of proof set forth in Ex parte McLendon, supra).