author: PER CURIAM.

text:
    COOK’S PEST CONTROL, INC. v. Robert REBAR and Margo Rebar Robert Rebar and Margo Rebar v. Cook’s Pest Control, Inc.
    1050029 and 1050128.
    Supreme Court of Alabama.
    Feb. 20, 2009.
    Rehearing Applications Denied Aug. 21, 2009.
    See also 852 So.2d 730.

      Clifton E. Slaten, Mindi C. Robinson, and Jason J. Baird of Slaten & O’Connor, P.C., Montgomery, for appellant/cross-ap-pellee Cook’s Pest Control, Inc.
    Thomas F. Campbell and Raymond L. Bronner of Campbell Law, P.C., Birmingham, for appellees/cross-appellants Robert Rebar and Margo Rebar.
   PER CURIAM.

On August 30, 2001, Robert Rebar and his wife Margo Rebar sued Cook’s Pest Control, Inc., James Aycock, Dannie McClusky, and Harold Pinckard. The complaint alleged fraudulent misrepresentation, fraudulent suppression, negligence, negligence per se, breach of contract, negligent misrepresentation, unjust enrichment, failure to warn, and negligent training, supervision, and retention of employees. The complaint was later amended to add a bad-faith claim, but that claim was ultimately withdrawn. All the claims were based upon Cook’s alleged failure to treat and control a termite infestation in a house purchased by the Rebars and to repair the damage to the house caused by the termites.

Facts and Procedural History

In March 2000, the Rebars entered into a contract to purchase a house from Richard Duell and Marsha Duell. The Duells built the house in 1987, and it suffered from a defect that made it susceptible to termite infestation. Specifically, the front wall of the house was built below grade, which resulted in some of the wood siding being in contact with the ground. The house was protected by a termite-control contract issued by Cook’s to the Duells when the house was built. This contract was a “re-treatment-only” contract, which provided that Cook’s would inspect the property for termites annually and would re-treat the property if termites were found. In 1998, termites were found at the property, and Cook’s re-treated the areas of infestation. The evidence presented at trial suggested that, when it retreated the property, Cook’s learned about the defect that made the house more susceptible to infestation. Cook’s advised the Duells to fix the defect.

The purchase contract between the Duells and the Rebars stated that “the [Rebars] require[ ] additional inspection of the property at [the Rebars’] expense.” The purchase contract further stated that “if such inspections reveal conditions unsatisfactory to [the Rebars], [the Rebars] may, at [the Rebars’] option, (a) terminate the contract or (b) request that [the Duells] correct the unsatisfactory condition(s).” The contract provided that the Rebars must exercise the option “by written notice to [the Duells] delivered to [the Duells] on or before 5:00 PM on March 30, 2000.” Separately, the purchase contract stated that “[the Rebars] require a wood infestation report,” but the contract was silent as to what would occur if the wood-infestation report revealed any unsatisfactory conditions.

After contracting to purchase the house, the Rebars hired Hank Belcher, a structural engineer who worked for a home-inspection company, to inspect the property. On March 27, 2000, Belcher issued a report that stated that the property was in good condition. Belcher also prepared a “punch list” of minor or cosmetic items that needed to be repaired. The Duells agreed to repair the items on the punch list.

Pursuant to the purchase contract, Cook’s inspected the property and prepared the required wood-infestation inspection report (“WIIR”). The WIIR indicated that the inspection did not find an active termite infestation but noted that a previous infestation was reported in the Duells’ file. Cook’s inspector, Dennis Duggan, later added to the WIIR a signed, handwritten note, which indicated that the previous termite damage had been repaired by the Duells. Specifically, the note stated:

“Previous Termite Damage
“ — Front windows above sub-floor of basement Damage repaired by customer 1999
“ — Siding ground contact — termite damage See graph — customer cut siding 1999.”

Although, the WIIR contained disclaimers that it is not intended to be a report of damage, the WIIR emphasized that “evidence of infestation may be synonymous with damage.” The WIIR was prepared after the March 30, 2000, inspection deadline, and it was not presented to the Re-bars until the closing on April 21, 2000.

Mr. Rebar testified that, in deciding to close on the purchase of the house, he relied upon the representation that Cook’s had properly treated the house for termites since the house was constructed and upon the representations in the WIIR that all termite damage had been repaired. Upon seeing the WIIR at the closing, Mr. Rebar expressed concerns over the contents of the document. However, he was assured that Duggan’s handwritten note should alleviate his concerns, and he went through with the closing.

An invoice was included with the documents the Rebars received from Cook’s at the closing on April 21, 2000. This invoice showed a “transfer fee” of $95. Also in April 2000, the Rebars and Cook’s executed a liquid-treatment contract that, like the Duells’ contract, was a “re-treatment-only” contract.

Shortly after the April closing, Mr. Re-bar contacted Cook’s to discuss their contract. He wanted to upgrade from a “re-treatment-only” contract to a repair contract. However, the Rebars were not moving into the house until later in the summer, so it was decided that they would delay discussion of the termite-protection contract until that time. In August 2000, after the Rebars moved into the house, Duggan met with Mrs. Rebar and convinced her to change the liquid-treatment-contract they had executed in April 2000 to a termite-control contract specifying the use of Sentricon Colony Elimination System, a more expensive baiting product that did not require a liquid treatment of the property. The Sentricon termite-control contract executed by the Rebars specified that it was for re-treatment services only and did not cover damage caused by, or repairs necessitated by, a termite infestation. The contract also contained a provision that voided the re-treatment guarantee if the house had a wood-below-grade problem like the one at the Rebars’ house. The Sentricon termite-control contract also contained an arbitration agreement.

During an inspection related to the Sen-tricon termite-control contract, Duggan indicated that there was damage in the front window sill that needed to be repaired before the Sentricon system could be installed. Duggan told Mrs. Rebar that the damage might have been from carpenter ants, but it was later discovered that it was termite damage.

In September 2000, during the repair of the window sill, an active termite infestation was found in the Rebars’ house. After discovering the termites, Mrs. Rebar contacted Cook’s, but she was not satisfied with Cook’s proposed solutions to the infestation, and she contacted the Alabama Department of Agriculture and Industries (“ADAI”). The ADAI’s inspection of the house revealed an extensive termite infestation. The ADAI also informed the Re-bars of the wood-below-grade problem. At ADAI’s instruction, Cook’s retreated the property at no cost to the Rebars in May 2001. It was later discovered that the Sentricon system would not be effective at the Rebars’ house because of the wood-below-grade problem. The Rebars spent about $56,000 repairing the damage to the house caused by termites, and they alleged that the value of the house was diminished because of the damage.

The Rebars sued Cook’s, seeking compensatory and punitive damages. Shortly before filing this action, on August 16, 2001, the Rebars sent Cook’s, along with their renewal payment for the Sentricon termite-control contract, an insert seeking to modify the Sentricon termite-control contract. The insert stated that acceptance of the payment and continued service would constitute acceptance of the terms of the addendum, which included a provision that stated that the parties were free to litigate any dispute. Cook’s accepted payment and continued service but nonetheless sought to compel arbitration of the Rebars’ action. The trial court denied Cook’s motion to compel arbitration, and Cook’s appealed that decision. On December 13, 2002, this Court affirmed the trial court’s order denying arbitration. Cook’s Pest Control, Inc. v. Rebar, 852 So.2d 730 (Ala.2002).

Cook’s filed a motion for a summary judgment, and on June 21, 2004, the trial court entered a summary judgment in favor of Cook’s on all claims. However, on July 21, 2004, the Rebars moved the trial court to alter, amend, or vacate the summary judgment and, on October 18, 2004, the trial court withdrew the summary judgment. The case then proceeded to trial before a jury. At the close of all the evidence, Cook’s moved for a judgment as a matter of law (“JML”) on all claims, and the trial court granted the motion as to the unjust-enrichment and failure-to-warn claims.

The remaining claims went to the jury, and the jury returned a general verdict of $100,000 in compensatory damages and $3 million in punitive damages. The jury did not indicate what portions of the award were to apply to each of the various claims. The judgment was entered on the verdict on May 25, 2005. On May 31, 2005, Cook’s filed a renewed motion for a JML, a motion for a new trial, and a motion for remittitur. The trial court heard these motions on August 19, 2005. The motion for a JML and the motion for a new trial were denied. The trial court left the $100,000 compensatory-damages award intact but reduced the punitive-damages award to $500,000, pursuant to the statutory cap on punitive damages in § 6-11-21, Ala.Code 1975.

Cook’s appeals the denial of its motion for a JML and challenges the amount of compensatory and punitive damages. The Rebars cross-appeal, arguing that the trial court should not have reduced the punitive damages because, they argue, Cook’s waived the imposition of the statutory damages cap by not pleading it as an affirmative defense. The Rebars also argue that the trial court erred on certain evidentiary issues.

Standard of Review

In Mobile Infirmary Medical Center v. Hodgen, 884 So.2d 801 (Ala.2003), this Court stated the standard of review applicable to a ruling on a motion for a JML, as follows:

“Our standard of review for a renewed motion for a JML is well settled:
“ ‘In reviewing the trial court’s ruling on a motion for a JML, an appellate court uses the same standard the trial court used in ruling on the motion initially. Thus, “ “we review the evidence in a light most favorable to the nonmovant, and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.’ ” Acceptance Ins. Co. v. Brown, 832 So.2d 1, 12 (Ala.2001), quoting American Nat’l Fire Ins. Co. v. Hughes, 624 So.2d 1362, 1366-67 (Ala.1993); see, also, Jim Walter Homes, Inc. v. Kendrick, 810 So.2d 645, 649-50 (Ala.2001).’
“Hicks v. Dunn, 819 So.2d 22, 23-24 (Ala.2001). Thus, in reviewing the evidence in this case, we are required to construe the facts and any reasonable inferences that the jury could have drawn from them most favorably to [the nonmovant].”

884 So.2d at 808-09.

Discussion

Cook’s argues that its motion for a JML should have been granted because, it says, the claims submitted to the jury were not supported by substantial evidence. The Rebars do not attempt to address this argument. Instead, the Rebars argue that Cook’s failed to preserve for review virtually all the issues it raises on appeal because, they say, Cook’s failed to object to the trial court’s jury instructions on the disputed claims.

The Rebars argument is without merit. The Rebars cite several cases that stand for the proposition that to preserve for review an objection to an erroneous jury instruction the objection “must be made at the close of the court’s initial instructions to the jury, and it must be stated with sufficient clarity or specificity to preserve the error — in other words, an exception designating only the subject treated by the court in its oral charge is insufficient.” McElmurry v. Uniroyal, Inc., 531 So.2d 859, 859 (Ala.1988). The Rebars also point out that “ ‘[u]nchallenged jury instructions become the law of the case.’ ” Thompson Props. 119 AA 370, Ltd. v. Birmingham Hide & Tallow Co., 897 So.2d 248, 263 (Ala.2004) (quoting BIC Corp. v. Bean, 669 So.2d 840, 844 (Ala.1995)). However, Cook’s is not claiming error in and seeking review of the trial court’s jury instructions. Cook’s is alleging that the claims that were submitted to the jury were not supported by substantial evidence, and, thus, it argues, it was entitled to a JML. To preserve its argument, Cook’s was required to follow the mandates of Rule 50, Ala. R. Civ. P., which governs a JML. Contrary to the Rebars’ contention, preservation of Cook’s argument does not require following the mandates of Rule 51, Ala. R. Civ. P., which governs objections to jury instructions.

In King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So.2d 714 (Ala.1987), this Court held:

“One who, on appellate review, seeks, on the ground of insufficiency of the evidence, the reversal of an adverse judgment and the entry of a judgment in his favor, must meet a two-pronged test: 1) He must ask for a directed verdict [now renamed a JML] at the close of all the evidence, specifying ‘insufficiency of the evidence’ (lack of proof) as a ground; and 2) he must renew this motion by way of a timely filed post-judgment motion for J.N.O.V. [now renamed a renewed motion for a JML], again specifying the same insufficiency-of-the-evidence ground. See Rule 50, [Ala.]R.Civ.P., and Committee Comments; Bains v. Jameson, 507 So.2d 504, 505 (Ala.1987); and Ritch v. Waldrop, 428 So.2d 1 (Ala.1982).”

518 So.2d at 716. Cook’s satisfied both requirements. Contrary to the Rebars’ allegation, Cook’s was not additionally required to object to the trial court’s jury instructions on the same grounds as set forth in its motions for a JML.

The Rebars attempt to avoid this conclusion by alleging that “the trial court decided Cook’s JML motion using a fairly unique procedure.” (Rebars’ brief, at 25.) According to the Rebars, the trial court addressed the issues raised in Cook’s motion for a JML only during the charge conference when it considered the parties’ requested jury charges. However, it does not appear that this allegation accurately depicts the trial court’s actions, nor does it appear that it would be relevant if the allegation did so accurately depict those actions. First, only after the trial court heard considerable argument on Cook’s motion for a JML and purported to make various rulings on the motion did the trial court state:

“So let’s go through all of the issues and figure out which ones — I think the easiest way to deal with the [JML] motion is going — is granted in part and overruled in part on the motion for judgment as a matter of law. I think the best way of dealing with what’s still here is to go through the jury charges as proposed.
“We are now officially in charge conference, to the extent you have to say that. I am going to start and just for purposes of — I’ll start with the jury charges requested by plaintiffs and just go through them.”

The trial court granted in part and overruled in part the motion for a JML before it started the charge conference. It appears that the trial court merely intended to use the charge conference as an efficient way to identify what claims were “still here.” The trial court did not use the charge conference to receive additional arguments or to make additional rulings on the motion for a JML. Furthermore, even if the trial court addressed the issues raised in the motion for a JML by considering the requested jury charges, the Re-bars do not clearly explain the relevance of this procedure. If the trial court decided to address the motion for a JML during the charge conference, that decision did not add an extra requirement to the two requirements for preservation of insufficiency-of-the-evidence claims set forth in King Mines Resort, supra. The Rebars do not cite any case that mandates any additional requirement for preserving an insufficiency-of-the-evidence claim in a situation like the present one. All the cases cited by the Rebars discuss only preserving issues for review concerning erroneous jury instructions under Rule 51, Ala. R. Civ. P., not claims set forth in a motion for a JML under Rule 50, Ala. R. Civ. P. Therefore, Cook’s insufficiency-of-the-evidence claims are properly before this Court because it moved for a JML at the close of all the evidence and it renewed this motion by way of a timely filed post-judgment motion.

Next, we must decide whether each claim that was submitted to the jury was supported by substantial evidence. It appears that the jury was instructed on the following claims: fraudulent misrepresentation, fraudulent suppression, breach of contract, negligence (including negligent misrepresentation and negligent supervision and retention of employees), negligence per se based on an alleged violation of Ala. Admin. Code (Agriculture), Chapter 80-10-9, and promissory estoppel.

First, it appears that the Rebars attempted to base some of their claims on actions taken by Cook’s before it prepared the WIIR for the Rebars. However, the Rebars do not have standing to assert such claims.

In Ray v. Montgomery, 399 So.2d 230 (Ala.1980), the purchasers of a termite-infested house sued a termite-control company based on a termite-control contract the company had entered into with the prior owners of the home. In rejecting the purchasers’ claim, this Court explained:

“There is no contractual obligation on the part of [the termite-control company] to the [purchasers of the home]. Protection under the service contract does not run to the owner of the property but to the contractual parties. The [purchasers] are not third-party beneficiaries under that contract as they were not intended beneficiaries. The contract was entered into for the purpose of protecting the house as the property of the [prior owners]. The [prior owners] were protecting their interest and investment and were not altruistically protecting the property for subsequent purchasers.”

399 So.2d at 233.

Also, in Keck v. Dryvit Systems, Inc., 830 So.2d 1 (Ala.2002), subsequent purchasers of a house sued the manufacturer, the distributor, and the installer of an exterior insulation-finishing system (“EIFS”), alleging that they had sustained damage based on the inability of the system to prevent water intrusion or to allow water to properly drain. This Court held:

“[The defendants] did not enter into a contract to manufacture and apply the EIFS to a house owned by the [plaintiffs], As subsequent purchasers of the house, the [plaintiffs] had no relationship with, and no other contact with, the builder of the house or any of [the defendants]. Because the [plaintiffs] did not enter into a contract with [the defendants] to apply the EIFS to the house, because the [plaintiffs] were not the intended purchasers of the house when the EIFS was applied during the construction of the house, and because [the defendants] could not have anticipated when or if the [plaintiffs] would purchase the house, [the defendants] owed the [plaintiffs] no duty to manufacture and apply the EIFS with reasonable care.”

830 So.2d at 10.

In the present case, any actions relating to the house taken by Cook’s before the Rebars contracted to purchase the house were for the benefit of the Duells, not the Rebars. Cook’s owed the Rebars no duty based on these actions, and the Rebars’ purchase of the house did not gain them any protections under the termite-control contract between Cook’s and the Duells. Therefore, any contract or tort claims arising out of Cook’s relationship with the Duells before the Rebars contracted to purchase the house would necessarily have to be brought by the Duells, not the Re-bars, and Cook’s was entitled to a JML on any such claims.

Next, to the extent that the Re-bars’ fraudulent-suppression, fraudulent-misrepresentation, or negligence claims are based on Cook’s preparation of the WIIR pursuant to the purchase contract for the home, the claims are not supported by substantial evidence.

“A claim for fraudulent suppression requires that the plaintiff show: (1) that the defendant had a duty to disclose material facts; (2) that the defendant concealed or failed to disclose those facts; (3) that the concealment or failure to disclose induced the plaintiff to act; and (4) that the defendant’s action resulted in harm to the plaintiff.”

Booker v. United American Ins. Co., 700 So.2d 1333, 1339 n. 10 (Ala.1997).

“To establish a prima facie case of fraudulent misrepresentation, a plaintiff must show: (1) that the representation was false, (2) that it concerned a material fact, (3) that the plaintiff relied on the false representation, and (4) that actual injury resulted from that reliance. § 6-5-101, Ala.Code 1975; Crowder v. Memory Hill Gardens, Inc., 516 So.2d 602 (Ala.1987); International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977).”

Boswell v. Liberty Nat’l Life Ins. Co., 643 So.2d 580, 581 (Ala.1994).

“ ‘To establish negligence, the plaintiff must prove: (1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury. Albert v. Hsu, 602 So.2d 895, 897 (Ala.1992).’ ”

Brushwitz v. Ezell, 757 So.2d 423, 432 (Ala.2000).

Fraudulent-suppression, fraudulent-misrepresentation, and negligence claims all require the plaintiff to prove an injury or damage resulting from the defendant’s conduct. In the present case, the Rebars have failed to present substantial evidence indicating that they suffered an injury or damage as a result of any suppression or misrepresentation by Cook’s in preparing the WIIR. In Reeves v. Porter, 521 So.2d 963 (Ala.1988), this Court held that “ ‘one suffers no damage where he is fraudulently induced to do something which he is under legal obligation to do, such as ... perform a valid contract.’ ” 521 So.2d at 968 (quoting 37 Am.Jur.2d Fraud and Deceit § 295, at 392-93 (1968) (emphasis omitted)). Furthermore, this Court stated that “ ‘[a] person who is induced by false representations to do what his legal duty requires him to do cannot recover therefor, because he suffers no legal injury.’ ” Reeves, 521 So.2d at 968 (quoting 37 Am.Jur.2d Fraud and Deceit § 283, at 379 (1968)).

In the present case, when the WIIR was prepared and presented to the Rebars at the closing, the deadline for the Rebars to terminate the purchase contract based on unsatisfactory conditions had passed. Furthermore, the performance of the contract was not contingent on the contents of the WIIR. The Rebars were contractually obligated to purchase the house from the Duells before they received the WIIR, regardless of the contents of the WIIR. Therefore, the Rebars have failed to present substantial evidence indicating that they suffered any injury because of any suppression or misrepresentation by Cook’s in preparing the WIIR.

Moreover, the Rebars did not present substantial evidence satisfying the duty element of their negligence or fraudulent-suppression claims. Specifically, the Rebars did not present substantial evidence indicating that Cook’s had a duty to inform the Rebars of the wood-below-grade problem with the house when it prepared the WIIR or that Cook’s failed to fulfill any of its duties in preparing the WIIR. The WIIR explicitly limited Cook’s duty to a visual inspection of the house, and the disclaimers in the WIIR limited the scope of the WIIR “to deter-min[ing] the presence or previous presence of an infestation of the listed organisms and [was] not intended to be a report of damage.” The WIIR went on to state:

“If visible evidence of aetive or previous infestation of listed organisms is reported, it should be assumed that some degree of damage is present. Evaluation of damage and any corrective action should be performed by a qualified inspector approved by the purchaser. This report is subject to all conditions enumerated on the reverse side and is issued without warranty, guarantee or representation, except as provided in Rule No. 80-10-9-.18, ALABAMA ADMINISTRATIVE CODE, or subject to any treatment guarantee specified below.”

Therefore, preparing the WIIR did not impose a duty on Cook’s to inform the Rebars of the wood-below-grade problem with the house or to locate an active termite infestation that could not be found by a visual inspection.

In addition, “[a]n action for suppression will lie only if the defendant actually knows the fact alleged to be suppressed.” McGarry v. Flournoy, 624 So.2d 1359, 1362 (Ala.1993). Even if Dug-gan should have discovered an active termite infestation during his inspection, unless he actually did discover it, a claim of fraudulent suppression will not lie. There was no evidence indicating that Duggan actually discovered termites and suppressed that information on the WIIR.

For the above-stated reasons, the JML for Cook’s is proper on the fraudulent-suppression, fraudulent-misrepresentation, and negligence claims to the extent that those claims are based on Cook’s preparation of the WIIR.

Next, the Rebars did not present substantial evidence to support their general allegation that Cook’s was negligent per se for allegedly violating Ala. Admin. Code, Chapter 80-10-9, which contains the administrative regulations generally governing termite-control companies. “To establish negligence per se, a plaintiff must prove: (1) that the statute the defendant is charged with violating was enacted to protect a class of persons to which the plaintiff belonged; (2) that the plaintiffs injury was the kind of injury contemplated by the statute; (3) that the defendant violated the statute; and (4) that the defendant’s violation of the statute proximately caused the plaintiffs injury.” Dickinson v. Land Developers Constr. Co., 882 So.2d 291, 302 (Ala.2003). Cook’s states that “the evidence was undisputed that Cook’s did not violate any applicable statutes or regulations with respect to its inspections or treatments of the subject property.” (Cook’s brief, at 34.) The Rebars do not respond to this statement; they do not identify any specific provisions of Rule 80-10-9 that were violated; and they do not attempt to set forth any evidence that was presented at trial that satisfied the elements of negligence per se. Therefore, the trial court erred in denying Cook’s motion for a JML on the Rebars’ negligence per se claim.

Next, Cook’s alleges that the Rebars did not present substantial evidence to support their claim that Cook’s committed fraudulent misrepresentation by allegedly representing to the Rebars that it was transferring the Duells’ liquid-barrier termite-control contract to the Rebars in exchange for an additional payment and, instead, inducing the Rebars to execute, in conjunction with the closing, a new liquid-barrier termite-control contract with what the Rebars say were less favorable terms. The primary difference between the two contracts was that the new liquid-barrier contract contained an arbitration clause and certain exclusions that were not present in the Duells’ contract. Both contracts were “re-treatment-only” contracts. The Rebars alleged that evidence of the misrepresentation included a notation on an invoice that Mr. Rebar received from Cook’s at the closing that referred to a $95 “transfer” fee. However, Cook’s argues that the Rebars did not present substantial evidence indicating that they reasonably relied on the alleged misrepresentation.

In Massey Automotive, Inc. v. Norris, 895 So.2d 215 (Ala.2004), this Court stated:

“One of the earlier formulations of the reasonable-reliance standard was articulated in Torres v. State Farm Fire & Casualty Co., 438 So.2d 757 (Ala.1983), to which standard this Court ‘returned’ in Foremost Insurance [Co. v. Parham, 693 So.2d 409 (Ala.1997)]. In Torres, the Court explained that ‘[i]n order to recover for misrepresentation, the plaintiffs reliance must, therefore, have been reasonable under the circumstances. If the circumstances are such that a reasonably prudent person who exercised ordinary care would have discovered the true facts, the plaintiffs should not recover.’ 438 So.2d at 759. Under Foremost Insurance, reliance can be declared unreasonable, as a matter of law, ‘where the undisputed evidence indicates that the party or parties claiming fraud in a particular transaction were fully capable of reading and understanding their documents, but nonetheless made a deliberate decision to ignore written contract terms’ that clearly contradicted the alleged misrepresentations. 693 So.2d at 421.”

895 So.2d at 220.

In the present case, the Rebars presented no evidence indicating that they could not read the termite-control contract they executed, that someone prevented them from reading the termite-control contract, or that they could not have understood the contract had they read it. The arbitration clause and exclusions, which were not in the Duells’ termite-control contract, were readily apparent in the new termite-control contract, and these written terms clearly contradicted the alleged representation by Cook’s that it was transferring the Duells’ termite-control contract to the Rebars. The Rebars presented no evidence concerning the transfer-fee notation on the Cook’s invoice presented at the closing that would support an inference that Cook’s made a misrepresentation about the scope of the termite-control contract the Rebars received at the closing that would warrant the Rebars’ disregarding the plain language of the contract. Therefore, the Rebars did not reasonably rely on any misrepresentation made by Cook’s concerning the contract, and the Rebars cannot recover for fraudulent misrepresentation based on their entering into the termite-control contract with Cook’s in April 2000. The trial court erred in denying Cook’s motion for a JML as to this claim.

Next, the Rebars claimed that Cook’s fraudulently suppressed material facts about the wood-below-grade problem of the house and the history of that problem and that this suppression induced them to enter into the Sentricon termite-control contract, which was more expensive than the liquid-barrier treatment and completely inappropriate for their house. Cook’s fails to address this claim in its brief to this Court. Therefore, Cook’s waives any argument concerning this claim, and we cannot say it is entitled to a JML on this claim. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (“ ‘An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief.’ ” (quoting Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988), citing in turn Ex parte Riley, 464 So.2d 92 (Ala.1985))).

Next, Cook’s argues that the Rebars did not present substantial evidence in support of their claim that Cook’s breached the April 2000 termite-control contract by failing to apply a liquid-termite re-treatment to the property immediately upon entering into the contract. “The elements of a breach-of-contract claim under Alabama law are (1) a valid contract binding the parties; (2) the plaintiffs’ performance under the contract; (3) the defendant’s nonperformance; and (4) resulting damages.” Reynolds Metals Co. v. Hill, 825 So.2d 100, 105-06 (Ala.2002). The elements of a valid contract include: “ ‘an offer and an acceptance, consideration, and mutual assent to terms essential to the formation of a contract.’ ” Ex parte Grant, 711 So.2d 464, 465 (Ala.1997) (quoting Strength v. Alabama Dep’t of Fin., Div. of Risk Mgmt., 622 So.2d 1283, 1289 (Ala.1993)).

In the present case, the liquid-barrier contract executed by Cook’s and the Re-bars in April 2000 guaranteed that “during the term of this Guarantee” Cook’s would, among other things, “treat the soil with an approved product manufactured for the control of native Subterranean Termites.” Concerning the term of the contract, the contract stated: “This Guarantee is effective for a period of one (1) year following the initial treatment.” It is unclear from the contract when the initial treatment was to be performed.

Concerning this breach-of-contract claim, Cook’s argues that it did not breach the liquid-barrier contract because, it argues, this contract was extinguished by novation when the parties executed the Sentricon contract in August 2000. We disagree.

“A novation is the substitution of one contract for another; a novation releases the party bound by the original contract. A novation extinguishes the preexisting obligation.” Golden v. Bank of Tallassee, 639 So.2d 1366, 1369 (Ala.1994). “Novation requires: ‘(1) a previous valid obligation; (2) an agreement of the parties thereto to a new contract or obligation; (3) an agreement that it is an extinguishment of the old contract or obligation; and (4) the new contract or obligation must be a valid one between the parties thereto.’ ” Boh Bros. Constr. Co. v. Nelson, 730 So.2d 132, 134 (Ala.1999) (quoting Warrior Drilling & Eng’g Co. v. King, 446 So.2d 31, 33 (Ala.1984)).

In the present case, it is undisputed that the liquid-barrier contract was a valid obligation and that the parties intended to enter into a new obligation when they executed the Sentricon termite-control contract. Furthermore, nothing in the record indicates that the parties intended to continue with a liquid-barrier treatment after they executed the Sentricon termite-control contract. In fact, the Sentricon termite-control contract states:

“State regulations may require specific treatment standards for a conventional liquid barrier termite treatment. However, these standards will not be performed as part of this Agreement because the Sentricon System is a conceptually different type of termite treatment which does not involve a liquid barrier treatment.”

However, the Sentricon termite-control contract is not valid if it was procured by fraud, and, if it is not valid, the purported extinguishment of the liquid-barrier contract would be ineffective. Therefore, because Cook’s has waived any argument relating to the Rebars’ claim that they were fraudulently induced to enter into the Sentricon termite-control contract, Cook’s argument on appeal that the liquid-barrier contract was extinguished by novation is without merit and Cook’s has failed to demonstrate to this Court that it was enti-tied to a JML on the breach-of-contract claim.

Finally, like the fraudulent-suppression claim discussed earlier, Cook’s does not address the promissory-estoppel claim that was submitted to the jury. Therefore, Cook’s waives any argument concerning this claim. See Tucker v. Cullman-Jefferson Counties Gas Dist., supra.

Cook’s contends that if it is entitled to a JML on any but not all the Rebars’ claims that were submitted to the jury, then it is entitled to a new trial based on the “good count-bad count” rule. See Alfa Life Ins. Corp. v. Jackson, 906 So.2d 143, 157 (Ala.2005) (“Because the jury returned a general verdict for the plaintiffs and the two ‘bad counts’ may have infected this verdict, we must reverse the judgment entered upon that verdict.”). We agree.

In the present case, the jury returned a general verdict, without indicating which of the various claims it based its verdict upon. This Court cannot presume that the verdict was based solely upon the “good” counts, i.e., the claims that are supported by the evidence. The jury could have based its verdict, awarding compensatory and punitive damages, solely upon the “bad” counts, i.e., the claims that are not supported by the evidence. For this reason, we have no alternative but to order a new trial.

Conclusion

In conclusion, Cook’s is entitled to a JML on: (1) all the claims that are based on actions taken by Cook’s before it prepared the WIIR for the Rebars; (2) the fraudulent-suppression, fraudulent-misrepresentation, and negligence claims, to the extent those claims are based on Cook’s preparation of the WIIR; (3) the negligence per se claim; and (4) the fraudulent-misrepresentation claim based on the allegation that Cook’s represented to the Re-bars that it was transferring the Duells’ termite-control contract to the Rebars and, instead, induced the Rebars to enter into a new'termite-control contract, the terms of which, the Rebars say, were less favorable.

Cook’s is not entitled to a JML on the claim that Cook’s fraudulently suppressed facts about the house and that this suppression induced the Rebars to enter into the Sentricon termite-control contract, the claim that Cook’s breached the liquid-barrier contract, or the promissory-estoppel claim that was submitted to the jury.

Because this Court cannot presume that the jury’s general verdict was based solely upon the claims that were supported by the evidence, the trial court’s judgment is reversed and the case is remanded for a new trial. Our reversal of the judgment moots the issues whether the damages awarded were excessive and whether the remittitur of the punitive-damages award was proper. Furthermore, we do not address the Rebars’ arguments that the trial court erred on certain evidentiary issues because the disputed evidence may not be presented at the new trial. Therefore, the Rebars’ cross-appeal is dismissed as moot.

1050029 — REVERSED AND REMANDED. .

1050128 — APPEAL DISMISSED.

COBB, C.J., and LYONS, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

MURDOCK, J., dissents.

      . Aycock, McClusky, and Pinckard were dismissed'as defendants on April 4, 2005.

      . The complaint also alleged wantonness and breach of warranty. However, those claims were not submitted to the jury.

      . It is unclear who, if anyone, was responsible for the delay in preparing and delivering' the WIIR.

      . It appears from the record that Cook's motion for a JML was also granted on the fraudulent-suppression claim, but some of the trial court’s instructions to the jury relate to that claim. Likewise, the record indicates that the trial court appeared to grant Cook’s motion for a JML on the negligence per se claim, but the trial court likewise instructed the jury on this claim. Therefore, we are treating those claims as not having been disposed of by a JML.

      . Although the Rebars did not assert a claim of promissory estoppel in their complaint, the trial court's instructions included a charge on promissory estoppel.

      . Ultimately, at the instruction of the ADAI, Cook's did treat the property in May 2001.


source: Caselaw Access Project

author: BOLIN, Justice. BOLIN, Justice.

license: Public Domain

text:
    Evan W. SMITH v. Billie C. BURKHALTER et al.
    1080202.
    Supreme Court of Alabama.
    May 15, 2009.
    Opinion Overruling Rehearing Aug. 28, 2009.
    Ralph K. Strawn, Jr., of Henslee, Robertson, Strawn & Sullivan, L.L.C., Gadsden, for appellant.
    J. Shane Givens, Centre, for appellees.
   BOLIN, Justice.

Evan W. Smith appeals from a judgment against him in an action filed by Billie C. Burkhalter, Jimmy Wallace, and Lenora McWhorter contesting the results of the Town of Cedar Bluffs election for mayor and two places on the Town’s council.

Facts and Procedural History

On August 26, 2008, the Town of Cedar Bluff held a general election for the office of mayor and two positions on the Town’s council. Wallace ran for mayor against Ethel Sprouse, Steve Lay, and Dale Reese. Burkhalter and Smith, along with another candidate, sought election to the council position for district one and McWhorter and Donald Sanders sought election to the council position for district two. On September 2, 2008, the Town of Cedar Bluff certified the following results and concluded that a runoff election was necessary between Lay and Sprouse for the mayoral race and between Burkhalter and Smith for the district-one council position and that Sanders was elected to the council position for district two. The runoff election was scheduled for October 7, 2008.

On September 3, 2008, Wallace, Burk-halter, and McWhorter (hereinafter referred to collectively as “the contestants”) filed an election contest, pursuant to § 11-46-69, Ala.Code 1975. The contestants claimed that illegal absentee ballots were cast at the August 26, 2008, general election, which, if excluded, would change the results of the election in their favor. The contestants claimed, among other things, that absentee ballots were cast by persons whose ballots had not been properly delivered to the absentee voters. The Town was named as a defendant along with all the other candidates for the three offices that were the subject of the contest. The contestants filed a motion for a preliminary injunction asking the circuit court to postpone the runoff elections scheduled for October 7, 2008.

On September 5, 2008, the Town of Cedar Bluff filed its answer. That same day, the contestants filed an amendment to their complaint alleging that absentee ballots “were picked up from the town clerk’s office by agents of certain candidates” and “were neither hand mailed nor hand delivered to each respective elector by the [Town’s clerk] as required in Alabama Code [1975,] 17-11-5.” On September 8, 2008, mayoral candidate Sprouse filed a motion to dismiss the contestants’ complaint on the ground that the circuit court lacked subject-matter jurisdiction because, she argued, § 11-46-69, Ala.Code 1975, authorizes a contest of a municipal election only when a person has actually been “declared elected” to the office and no person had yet to been declared elected to the offices they were seeking in the general election. On September 9, 2008, the contestants filed a response to Sprouse’s motion, arguing that § 11-46-69 provided that an election contest may be brought “by any person who was at the time of the election a qualified elector of such ... town” and that Sprouse’s interpretation of § 11-46-69 was in direct conflict with the purpose of the election-contest statute.

On September 10, 2008, district-one candidate Smith filed a motion to dismiss on the ground of insufficiency of process. Smith also argued that the election contest was barred by the five-day limitations period in § ll-46-69(b), because the service of process had been insufficient. That same day, district-two candidate Sanders filed a motion to dismiss on the grounds of lack of subject-matter jurisdiction under § 11-46-69 and insufficient service of process. On September 11, 2008, the contestants filed a response to Smith’s and Sanders’s motions to dismiss. On September 29, 2008, the circuit court held a hearing on the motions to dismiss, and on September 30, 2008, the circuit court denied the motions. The court also stayed the runoff election scheduled for October 7, 2008. On October 3, 2008, mayoral candidate Lay died, and a suggestion of death was filed with the court along with a motion to dismiss Lay from the election contest. On October 6, 2008, Smith filed his answer and asserted several affirmative defenses including lack of subject-matter jurisdiction, insufficient service of process, and the five-day statute of limitations applicable to municipal-election contests.

On October 14, 2008, the contestants filed a motion entitled “Plaintiffs’ First Notice of Nature of Evidence and Motion For Summary Judgment.” In this motion, the contestants asserted that there were several reasons that many of, if not all, the absentee ballots should be excluded, but the contestants asked the court to make a determination as to whether the disputed absentee ballots had been improperly delivered to the voters by the Town’s clerk. Specifically, the contestants argued that § 17-11-5, Ala.Code 1975, provides that the “absentee election manager” shall furnish absentee ballots to the applicant for the ballot by United States Mail or by personally handing the absentee ballot to the voter who intends to vote by absentee ballot. They argued that the Town’s clerk, as absentee election manager, admitted that she mistakenly allowed persons other than the actual absentee voters who intended to vote by absentee ballot to pick up the ballots. They contended that a secretary for Smith picked up some absentee ballots and that a person campaigning for Sanders had picked up some absentee ballots.

In support of their motion, the contestants attached certain documents, along with the deposition of the Town’s clerk In her deposition, the Town’s clerk statec that she had been clerk of the Town of Cedar Bluff for two years and nine months and that she had received training from the Alabama League of Municipalities regarding voting procedures, including absentee-ballot procedures. She testified that a voter requesting an absentee ballot could come to her office and pick up an absentee-ballot application. She indicated that it was her understanding that, although the application must be signed by the voter, anyone could pick up the application and deliver it to the voter. The clerk testified that she checks the registrar’s list to see if the person on whose behalf an absentee ballot is being requested is a registered voter, and, if so, she provides the voter an absentee ballot and an envelope in which to seal the ballot. She also provides the voter with a second envelope in which to return the sealed ballot to the clerk’s office. The ballot has to be witnessed or certified. The ballot must then be hand-delivered to the clerk or returned to the clerk’s office by mail. According to the Town’s clerk, the absentee ballots are numbered and a list of the absentee voters is posted in the town hall.

Regarding the absentee ballots for the August 26, 2008, general election, the Town’s clerk explained as follows:

“Q: Is there anything in your blue book, in your procedure book, that speaks to this particular method of getting the ballot out?
“A: At the time I did it, I thought, yes, sir.
“Q: You have subsequently discovered that there is another procedure—
“A: Yes, sir.
“Q: —other than the one you followed?
“A: At the time I did it, I went by this paragraph. It says, ‘Upon receipt of the application for an absentee ballot, if the applicant’s name appears on the list of qualified voters in the election to be held or, if the voter makes an affidavit for a provisional ballot, the absentee election manager shall furnish the absentee ballot to the applicant by forwarding it by U.S. mail to the applicant’s or voter’s residence or, upon written request of the voter, the address where the voter regularly receives mail or by handing the absentee ballot to the voter in person or, in the case of an emergency voting, his or her designee in person.’ At the time, a lot of these people are elderly, shut-in people.
“Q: And you know them?
“A: No, sir, I do not. But I’m new in Cedar Bluff, and these people that picked up these are, I guess, you would say, lifelong residents of Cedar Bluff. They knew the people, and I believed them, that they were elderly. For some reason or another, they weren’t able to go to the polls.
“And the his or her designee part, I let them take the ballots out, and I wasn’t aware that I was doing anything that I wasn’t supposed to do. I let them take them, and I understood that — The paragraph above that says that they must come to me by U.S. mail. I told them they had to be mailed back to me. They took them out. The people voted whatever. They mailed them back to me.
“This went on — Well, absentee ballots started going, I guess, about the 22nd day of July, and we could receive them — the last day for absentee ballots was like August 22.
“During that four-week period, I happened to be on the phone with the League of Municipalities, one of the attorneys. We were talking about some of the absentee ballots because I talk to them 15 times a day sometimes because I am not well versed in elections.
“And I read this paragraph and was talking to one of the attorneys, and I said something about what I had done. And he said, ‘DeLana, tell me that again.’ And I did. He said, ‘That’s not right.’ And I said, ‘What’s not right?’ He said, Tou’re supposed to be mailing these ballots out.’ And I said, ‘Tracy, then I’ve done them wrong. What am I supposed to do?’ He said, ‘Well, it’s done.’
“I got off the phone, and I went and told my mayor what I did. I told her what he said, that it’s done. Until then, no one even knew that I had done anything wrong. I’m the one that told them I did it wrong.”

The clerk testified that she simply mistakenly gave the absentee ballots to persons other than the voters who intended to vote by absentee ballot.

On October 17, 2008, Smith filed a response to the contestants’ summary-judgment motion; on that date he also filed a summary-judgment motion, arguing that no grounds exist to set aside the absentee ballots. Smith argued that, if the manner of delivering the ballots to the absentee voters was improper, the mere negligence of the Town’s clerk should not disenfranchise the voters who cast those absentee ballots. Smith went on to address the contestants’ allegations in their complaint that the absentee ballots should be set aside on other grounds. Smith cited portions of the clerk’s testimony that there was no one on the list of absentee voters who was not registered to vote; that there was no one on the list of absentee voters who voted in the wrong district; that there was no one on the list who was not a resident of the Town of Cedar Bluff; that there was no on the list who had been convicted of a crime involving moral turpitude, which would prohibit that person from being eligible to vote; and that no votes cast in the absentee box were illegal because of insufficient or improper witnesses. In addition, Smith noted, there were no votes that were not witnessed or notarized; there was no one on the list who had not lived in the Town of Cedar Bluff long enough to participate in this general election; there was no one on the list who was incapable of voting because of mental disease or defect; there was no one on the list who had given a fraudulent, fictitious, or improper address; on none of the applications for the ballots counted was there a failure of the voter to indicate a reason for voting absentee; and there were no votes counted that had improper voter identification. Smith also argued that the circuit court lacked subject-matter jurisdiction over the contest based on § 11-46-69 because no one had been “declared elected” and that the contest was due to be dismissed as time-barred because service of process had been insufficient. Sprouse and Sanders both filed responses to the contestants’ summary-judgment motion.

At a hearing on the summary-judgment motions, the parties agreed to waive the 10-day notice requirement for summary-judgment hearings set out in Rule 56, Ala. R. Civ. P. They also agreed that certain arguments were not waived if the circuit court determined at that hearing that the absentee ballots had not been improperly delivered.

On October 27, 2008, the circuit court entered an order declaring that there had been no fraud by the Town’s clerk in allowing the absentee ballots to be picked up by various individuals who were not the actual absentee voters but that the clerk had been negligent and this negligence gave the court no choice but to throw out the absentee ballots that had been improperly delivered. The court declared that once the improperly delivered absentee ballots were subtracted from the vote total, there would be a runoff election in the mayor’s race between Wallace and Sprouse, Burkhalter was the winner of the district-one position on the council, and McWhorter was the winner of the district-two position. The court directed all parties to indicate whether they agreed with the effect on the election results of the court’s determination in throwing out the improperly delivered absentee ballots.

Both sides agreed that the consequence of not counting the improperly delivered absentee ballots would result in runoff election in the mayor’s race between Wallace and Sprouse and that Burkhalter was the winner of the district-one council position and McWhorter was the winner of the district-two council position. On November 3, 2008, the circuit court entered an order declaring its October 27, 2008, order a final judgment. Smith is the only defendant who appealed.

Standard of Review

“ ‘ “This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).” ’ ”

Gooden v. City of Talladega, 966 So.2d 232, 235 (Ala.2007) (quoting Prince v. Poole, 935 So.2d 431, 442 (Ala.2006)).

Discussion

Smith argues, among other things, that the circuit court lacked subject-matter jurisdiction over the election contest because, he argues, no one had been “declared elected” for purposes of § 11-46-69, Ala.Code 1975, when the contestants filed their election contest and that only the need for a runoff election had been declared. He argues that § 17-16-44, Ala. Code 1975, expressly prohibits the courts from hearing an election contest unless permitted to do so by statute, and, he says, the language of § 11—46-69 is clear and unambiguous. Smith argues that because the district-one race resulted in a runoff, no candidate had been declared elected to that office and, therefore, the circuit court did not have jurisdiction over the election contest. We agree.

Section 11 — 46-69 provides:

“(a) The election of any person declared elected to any office of a city or town may be contested by any person who was at the time of the election a qualified elector of such city or town for any of the following causes:
“(1) Misconduct, fraud, or corruption on the part of any election official, any marker, the municipal governing body, or any other person;
“(2) The person whose election to office is contested was not eligible thereto at the time of such election;
“(3) Illegal votes;
“(4) The rejection of legal votes; or
“(5) Offers to bribe, bribery, intimidation, or other misconduct calculated to prevent a fair, free, and full exercise of the elective franchise.
“(b) Any contest of such an election must be commenced within five days after the result of the election is declared. Such contest shall be instituted in the manner prescribed by Section 17-15-29 and, except as otherwise provided in this article, all proceedings relative to contests of elections to municipal offices shall be governed by the provisions of Articles 2 and 3, Chapter 15, Title 17 of this Code, insofar as they are applicable.”

(Emphasis added.)

It is well settled that the legislature, by enacting § 17-16-44, has restricted the jurisdiction of the circuit courts in regard to elections. “This Court has been unequivocal in stating that elections normally do not fall within the scope of judicial review.” Sears v. Carson, 551 So.2d 1054, 1056 (1989). “We note again, as we have done on previous occasions, that a court does not have jurisdiction to interfere in an election result unless a statute authorizes it to do so. The Legislature has made this abundantly clear. See § 17-5-6 [now § 17-16-44].” Etheridge v. State ex rel. Olson, 730 So.2d 1179, 1182 (Ala.1999).

The contest of municipal general elections is governed by Chapter 46 of Title 11, Ala.Code 1975. Section 11-46-69 provides that the election of any person “declared elected” to a municipal office may be contested by any person who was a qualified elector of the municipality at the time of the election. On September 2, 2008, when the results of the general election for the Town of Cedar Bluff were declared, a runoff election was ordered for the district-one place on the council. Section 11-46-69 does not provide for an election contest to challenge the results of an initial municipal election for an office when there are more than two candidates for that office and no candidate receives a majority of the votes cast. See § 11-46-55(d). Only the election of a “person declared elected” may be contested under § 11-46-69; therefore, under § 11-46-69 a runoff election must first be held so that a person can be “declared elected” before a contest will lie, with the anomalous result that a potentially unnecessary runoff will be held. However, notwithstanding 'the fact that a contest challenging an initial election at which no one is “declared elected” to a particular office must wait until a candidate is “declared elected” after a runoff election, an election contest cannot be brought in any court unless allowed by statute. The statute here does not allow the challenge. “A judgment of a court without jurisdiction is void. An appeal will not lie from a void judgment.” Harvey v. City of Oneonta, 715 So.2d 779, 781 (Ala.1998). The circuit court did not have jurisdiction to entertain an election contest from a municipal general election in a mul-ti-candidate field when no candidate secured a majority of the votes cast; accordingly, the circuit court’s judgment is void, and the appeal is dismissed. Because we conclude that the circuit court lacked subject-matter jurisdiction, we pretermit discussion of the other issues Smith raises in his appeal.

APPEAL DISMISSED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, PARKER, MURDOCK, and SHAW, JJ., concur.

On Application for Rehearing

BOLIN, Justice.

On May 15, 2009, this Court dismissed Evan W. Smith’s appeal of an election contest on the basis that the circuit court was without jurisdiction to enter a judgment. On application for rehearing, candidates Jimmy Wallace, Billie C. Burkhalter, and Lenora McWhorter ask this Court to clarify its holding that the circuit court did not have jurisdiction to entertain an election contest from a municipal general election in a multi-candidate field when no candidate received a majority of the votes. Specifically, they ask us to clarify whether that portion of the circuit court’s judgment declaring McWhorter to be the duly elected council person for district two is also void.

On September 2, 2008, the Town of Cedar Bluff certified the election results and concluded that a runoff election was necessary between Steve Lay and Ethel Sprouse for the mayoral race and between Burkhalter and Smith for the district-one council position and that Donald Sanders was elected to the district-two council position. After a contest challenging absentee ballots, the circuit court declared Burkhal-ter the winner of the district-one position and McWhorter the winner of the district-two position and held that there should be a runoff election in the mayor’s race between Wallace and Sprouse. Smith appealed, and this Court held that the circuit court lacked subject-matter jurisdiction to entertain an election contest from a municipal general election in a multi-candidate field when no candidate secured a majority of the votes cast because § 11-46-69, Ala.Code 1975, provides that only the election of a person “declared elected” to a municipal office may be contested.

In the district-two council position, the Town of Cedar Bluff declared Sanders as the winner. In other words, Sanders was “declared elected” in accordance with § 11-46-69; therefore, the circuit court had subject-matter jurisdiction to entertain a contest challenging the election to the district-two council position. After the contest, the circuit court declared McWhorter the winner of the district-two race. Sanders did not appeal. Accordingly, the circuit court’s judgment declaring McWhorter the winner of the district-two council position stands.

APPLICATION OVERRULED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, PARKER, MURDOCK, and SHAW, JJ., concur.

      . The vote totals certified in the mayoral election were as follows: Sprouse 165, Lay 140, Wallace 124, and Reese 42.

      . The vote totals certified in the election for the district-one council position were as follows: Burkhalter 61, Smith 36, and Timothy Miller 30.

      . The vote totals certified in the election for the district-two council position were as follows: Sanders 46, and McWhorter 34.

      .If the disputed absentee ballots are not counted, Wallace, and not Lay, would have been in the mayoral runoff election; Burkhal-ter would have been elected to the council position for district one without a runoff; and McWhorter would have been elected to the council position for district two instead of Sanders.

      . Section 17-15-29 is now codified at § 17-16-56. Articles 2 and 3, Chapter 15 of Title 17, are now codified at §§ 17-16-47 through -62 and §§ 17-16-63 through -76, respectively.


author: SMITH, Justice. COBB, Chief Justice

text:
    DOLGENCORP, INC. v. Arlie TAYLOR.
    1070900.
    Supreme Court of Alabama.
    June 12, 2009.
    Rehearing Denied Aug. 28, 2009.

      Robert S. Lamar, Jr., and Rick D. Norris, Jr., of Lamar, Miller, Norris, Haggard & Christie, P.C., Birmingham, for appellant.
    Frederick P. Gilmore and Wyman O. Gilmore, Jr., of Gilmore Law Firm, P.C., Grove Hill, for appellee.
   SMITH, Justice.

Dolgencorp, Inc. (“Dolgencorp”), which owns and operates Dollar General retail discount stores, appeals from a judgment entered on a jury verdict in favor of Arlie Taylor on Taylor’s claims alleging negligence and wantonness. We reverse the trial court’s judgment and render a judgment for Dolgencorp.

Facts and Procedural History

On December 2, 2004, Taylor, who was then 68 years old, went to a Dollar General retail discount store (“the store”) in Jackson to purchase laundry products. After entering the store, Taylor attempted to push her shopping cart to the back aisle of the store where the laundry products were located by way of the middle aisle; however, the middle aisle was impassible because of displays of Christmas decorations and candy. Taylor then attempted to push her shopping cart to the back aisle by way of an aisle on the right side of the store. She testified at trial that she was “going around boxes” of merchandise that were located on the floor of the aisle as she moved toward the back aisle.

When Taylor arrived at the back aisle of the store, she turned her shopping cart to the left and began looking for the laundry detergent. Taylor testified that there were unopened cases of merchandise on the floor of the back aisle and that she “had to avoid one ... when [she] went to get [her] washing powder.” After placing a box of laundry detergent in her shopping cart, Taylor pushed her shopping cart further along the back aisle to the section where the laundry bleach was located. After placing a bottle of bleach in her shopping cart, Taylor moved further down the aisle in search of fabric softener, which was located on the top shelf of the back aisle. Taylor testified at trial that she “stepfped] out from behind the [shopping cart]” to reach for the fabric softener and that when she did she fell over two unopened cases of merchandise that were stacked one on top of the other in the aisle. Taylor testified both in her deposition and at trial that she did not see the two cases of merchandise before she fell over them; she also testified that, based on her observation of other cases of merchandise she had maneuvered around in the store on the day that she was injured, two cases stacked one on top of the other would be approximately “knee or thigh high.”

On March 3, 2005, Taylor and her mother, Rena Cave (sometimes referred to collectively as “the plaintiffs”), sued Dolgen-corp; Linda Bailey, the manager of the store from January 2004 until January 2005; and fictitiously named defendants (Dolgencorp and Bailey are sometimes referred to collectively as “the defendants”). The complaint alleged, among other things, that Dolgencorp and Bailey had negligently and/or wantonly failed to maintain the premises of the store in a safe condition. The plaintiffs’ complaint requested compensatory and punitive damages, plus interest and costs. The defendants filed an answer denying liability and asserting a number of affirmative defenses including the defense that the cases of merchandise in the aisle were an “open and obvious condition.”

On September 11, 2007, the defendants filed a motion for a summary judgment, which the trial court denied. At trial, the defendants filed a motion for a judgment as a matter of law (“JML”) at the close of the plaintiffs’ evidence. In their motion for a JML, the defendants asserted, among other things, that they owed no duty of care to Taylor because, the defendants said, the hazardous condition was “open and obvious” and that the plaintiffs failed to present substantial evidence establishing that the defendants had acted negligently or wantonly.

The defendants also made an oral motion to the trial court to supplement their written motion for a JML. After hearing argument on the defendants’ motion for a JML, the trial court stated that it was “striking the punitive damages claim against ... Bailey” and denied the motion for a JML as to the negligence and wantonness claims asserted against Dolgen-corp and as to the negligence claim asserted against Bailey. The defendants renewed their motion for a JML at the close of all the evidence; the trial court granted that motion as to the remaining claims asserted against Bailey but denied that motion as to the claims asserted against Dolgencorp.

On September 28, 2007, the jury returned the following verdict:

“We the jury, find for [Taylor], and against [Dolgencorp], on the count of negligence, and fix [Taylor’s] compensatory damages therefore at $85,000. Further, we the jury, find for [Taylor] and against [Dolgencorp], on the count of wantonness, and fix [Taylor’s] punitive damages at $175,000, in addition to the compensatory damages for negligence.”

On October 25, 2007, the trial court entered a judgment on the jury’s verdict. That judgment provided, in pertinent part:

“The jury, having returned a verdict for the Plaintiff, Arlie Taylor, and against the Defendant, Dolgencorp, Inc., in the amount of $85,000 in compensatory damages and $175,000 in punitive damages; a judgment is hereby entered accordingly for the Plaintiff, Arlie Taylor, and against the Defendant, Dolgen-corp, Inc., in the amount of $85,000 in compensatory damages and $175,000 in punitive damages.”

On October 29, 2007, Dolgencorp filed a postjudgment motion styled as a “motion for judgment notwithstanding the verdict and renewed motion for judgment as a matter of law or, in the alternative, motion for new trial, and for remittitur”; that motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. This appeal followed.

Standard of Review

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

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

Issues

Dolgencorp raises two issues on appeal. Dolgencorp first argues that the trial court erred in denying its motions for a JML as to Taylor’s negligence claim against it because, Dolgencorp contends, the hazardous condition in the store was open and obvious; thus, Dolgencorp says, it had no duty either to eliminate the hazardous condition or to warn Taylor of the hazardous condition. Conversely, Taylor argues that the eases of merchandise were not open and obvious; instead, Taylor argues that the cases of merchandise were a “hidden danger” because, she says, “it is not only foreseeable to [Dolgencorp], but expected, that a customer such as Ms. Taylor would focus her attention on the shelves when looking for a particular item and not anticipate any tripping hazards in the aisle while doing so.”

Dolgencorp also argues that the trial court erred in denying its motions for a JML on Taylor’s wantonness claim against it and the request for punitive damages because, Dolgencorp contends, the evidence was not sufficient to support a finding that it “had deliberately engaged in conduct that was in reckless or conscious disregard of the safety of the store’s customers.” Rather, Dolgencorp argues, the evidence established that “the cases or boxes were placed along the walls of the aisles, out in the open, where they could be seen by any reasonably vigilant shopper.” Conversely, Taylor argues that there was “sufficient evidence that [Dolgencorp] knew the boxes were dangerous, exhibited a conscious disregard for the safety of [its] customers, and that [its] customers were ultimately placed in danger for the wantonness claim to be submitted to the jury.”

I. Negligence Claim

It is undisputed that Taylor was a business invitee of Dolgencorp. See Ex parte Mountain Top Indoor Flea Market, Inc., 699 So.2d 158, 161 (Ala.1997) (“‘In order to be considered an invitee, the plaintiff must have been on the premises for some purpose that materially or commercially benefited the owner or occupier of the premises.’” (quoting Sisk v. Heil Co., 639 So.2d 1363, 1365 (Ala.1994), overruling on other grounds recognized by Sessions v. Nonnenmann, 842 So.2d 649, 654 (Ala.2002))). The liability of a premises owner to an invitee is well settled.

“In a premises-liability setting, we use an objective standard to assess whether a hazard is open and obvious. As discussed in Sessions [v. Nonnenmann, 842 So.2d 649 (Ala.2002)], the question is whether the danger should have been observed, not whether in fact it was consciously appreciated:
“ ‘[I]n order for a defendant-invitor in a premises-liability case to win a summary judgment or a judgment as a matter of law grounded on the absence of a duty on the invitor to eliminate open and obvious hazards or to warn the invitee about them, the record need not contain undisputed evidence that the plaintiff-invitee consciously appreciated the danger at the moment of the mishap. While Breeden [v. Hardy Corp., 562 So.2d 159 (Ala.1990) ], does recite that “[a]ll ordinary risks present are assumed by the invitee,” 562 So.2d at 160, this recitation cannot mean that the invitor’s duty before a mishap is determined by the invitee’s subjective state of mind at the moment of the mishap. This Court has expressly rejected the notion that an invitor owes a duty to eliminate open and obvious hazards or to warn the invitee about them if the invitor “should anticipate the ham despite such knowledge or obviousness.” Ex parte Gold Kist, Inc., 686 So.2d 260, 261 (Ala.1996)
842 So.2d at 653-54 (some emphasis added).”

Jones Food Co. v. Shipman, 981 So.2d 355, 362-63 (Ala.2006). Similarly, this Court has stated that “ ‘[t]he owner of premises has no duty to warn an invitee of open and obvious defects in the premises which the invitee is aware of, or should be aware of, in the exercise of reasonable care on the invitee’s part.’ ” Mountain Top Indoor Flea Market, 699 So.2d at 161 (quoting Shaw v. City of Lipscomb, 380 So.2d 812, 814 (Ala.1980), citing in turn Tice v. Tice, 361 So.2d 1051 (Ala.1978)). The test for determining whether a hazard is open and obvious “ ‘ “is an objective one.” ’ ” Id. (quoting Hines v. Hardy, 567 So.2d 1283, 1284 (Ala.1990), quoting in turn Restatement (Second) of Torts § 343A (1965)).

Dolgencorp’s argument that the condition that caused Taylor’s fall was open and obvious is an affirmative defense, for which it bears the ultimate burden of proof. Horne v. Gregerson’s Foods, Inc., 849 So.2d 173, 176 (Ala.Civ.App.2002) (citing Ex parte Neese, 819 So.2d 584 (Ala.2001), and Furgerson v. Dresser Indus., Inc., 438 So.2d 732, 734 (Ala.1983)).

Dolgencorp, citing Sessions, 842 So.2d at 652, asserts in its brief on appeal that

“openness and obviousness of a hazard, if established, negates the invitor’s duty to eliminate the hazard or to warn the invitee of the hazard. This negation of duty, in and of itself, defeats the invitee’s injury claim without the operation of any affirmative defense such as contributory negligence or assumption of risk. In other words, in this context, openness and obviousness, if established, negates the duty [and] defeats the claim ...."

Dolgencorp primarily relies on the following undisputed evidence in asserting that the cases of merchandise in the aisles were an open and obvious hazard. Dol-gencorp asserts that Taylor had shopped at the store approximately once every two weeks during the two- to three-year period preceding the accident and that, as a result, she had long been aware of the cluttered condition of the store; in fact, Taylor testified during her deposition that she was aware that “the place was cluttered” to the extent that “[y]ou couldn’t help but know it.” Dolgencorp also notes that Taylor testified during her deposition that at some point before the date of her injury she had asked a store cashier, “[H]ow come y’all had all these boxes and stuff down here?”

Dolgencorp also asserts that the cases of merchandise in the back aisle were an open and obvious hazard because Taylor, by her own admission, had maneuvered around other cases of merchandise on the floor of the store before falling over the two cases located on the back aisle. Dol-gencorp further asserts that Taylor, in the exercise of reasonable care, should have seen the cases she fell over but did not because, according to her deposition testimony, she had become “distracted” while looking for fabric softener.

Taylor cites several cases in support of her contention that the hazard created by the cases of merchandise was not an open and obvious one, including Wal-Mart Stores, Inc. v. McClinton, 631 So.2d 232 (Ala.1993), Wal-Mart Stores, Inc. v. Rolin, 813 So.2d 861 (Ala.2001), Williams v. Bruno’s, Inc., 632 So.2d 19 (Ala.1993), Blizzard v. Food Giant Supermarkets, Inc., 196 F.Supp.2d 1202 (M.D.Ala.2002), and Ryles v. Wal-Mart Stores East L.P. (No. 2:04cv334-T, December 16, 2004) (M.D.Ala.2004) (not reported in F.Supp.2d).

In Wal-Mart Stores, Inc. v. McClinton, McClinton sued Wal-Mart Stores, Inc. (“Wal-Mart”), alleging negligence. McClinton was injured when he slipped and fell in a Wal-Mart store on a piece of wood molding located either on or near a wooden gun cabinet that protruded approximately six inches into the aisle. The jury returned a verdict in favor of McClin-ton. This Court affirmed the trial court’s judgment entered on the jury’s verdict and rejected Wal-Mart’s argument that the hazard was open and obvious, concluding that “[wjhile it is evident that McClinton saw the displayed cabinet, it is not evident that he knew, or should have known, or that he appreciated, the danger caused by the fact that the cabinet and its molding protruded into the aisle.” 631 So.2d at 234.

In Wal-Mart Stores, Inc. v. Rolin, Rolin sued Wal-Mart alleging negligence and wantonness. Rolin was injured when she tripped and fell in a Wal-Mart store over a barbeque-grill display that allegedly protruded into a walkway. After the trial court granted Rolin’s motion to dismiss the wantonness claim, the jury returned a verdict in favor of Rolin on the negligence claim. As Taylor specifically notes in her brief on appeal, this Court affirmed the trial court’s judgment entered on the jury’s verdict and rejected Wal-Mart’s argument that it had no notice that the grill display was hazardous, concluding that “the barbeque-grill display is analogous to the gun cabinet in McClinton [, supra,] ... in that there is evidence to indicate that the hazardous condition was created by employees of the premises owner.” 813 So.2d at 865.

In Williams v. Bruno’s, Inc., Williams sued, among others, Bruno’s, Inc. (“Bruno’s”), alleging negligence and. wantonness. Williams was injured when he slipped and fell in a Food World grocery store. Williams testified that he did not know what caused his fall, but that after his fall he noticed “four to eight small strips of an unidentified material in the floor around him” and that one of the strips was “protruding out” from the bottom grocery shelf approximately six inches into the aisle. 632 So.2d at 20. The trial court entered a summary judgment in favor of Bruno’s. This Court reversed the summary judgment as to the negligence claim, concluding that the evidence did not establish that the strips were an open and obvious condition. Specifically, this Court stated:

“One could reasonably infer from [Williams’s] testimony that Williams was focusing his attention on the shelves, not that he was not looking where he was going. Nowhere in Williams’s testimony does he say that the strips were obvious to him before he fell; in fact, Williams stated that he did not see the strips until after he fell.”

632 So.2d at 22.

In Blizzard v. Food Giant Supermarkets, Inc., Blizzard sued Food Giant Supermarkets, Inc. (“Food Giant”), alleging negligence, wantonness, and failure to maintain a common area. Blizzard was injured when she tripped and fell in a Pic-N-Sav grocery store. Blizzard tripped over an “end-cap pallet,” which is a platform that rests on the floor at the end of grocery aisles and is used to display products. Food Giant moved for a summary judgment and, regarding Blizzard’s negligence claim, argued that it was entitled to judgment as a matter of law because, among other reasons, the end-cap pallet was an open and obvious hazard. The district court, citing Williams, supra, denied Food Giant’s summary-judgment motion as to the negligence claim and concluded that “there is evidence that [Blizzard’s failure to perceive the danger occurred because] she was looking at the products put in place by [Food Giant].” Blizzard, 196 F.Supp.2d at 1208.

Finally, Taylor cites Ryles v. Wal-Mart Stores East L.P., a case in which Ryles sued Wal-Mart Stores East L.P. (“Wal-Mart Stores”) alleging negligence and wantonness. Ryles was injured when she tripped and fell over a box of merchandise that had been placed on the floor near a counter. The district court denied Wal-Mart Stores’ summary-judgment motion as to the negligence claim and concluded that the box Ryles tripped over “did not, as a matter of law, constitute an open and obvious danger .... ” Taylor cites Ryles specifically for the following statement: “The above cases [cited in the district court’s order, including Williams, supra], therefore, clearly indicate that [the plaintiffs] failure to stare at the floor while walking down the shopping aisle, in particular where the store sought to draw her attention to its shelves, does not prevent her negligence claim from surviving summary judgment.” Viewing, as we must, the evidence in the light most favorable to Taylor, there is plainly no dispute regarding whether Taylor saw the cases of merchandise in the aisles of the store, appreciated the hazard posed by those cases, and acted more carefully because of that hazard. The evidence — Taylor’s deposition and trial testimony — established that Taylor, a regular shopper at the store, had been aware for some time of the “cluttered” condition of the store, that she had at some point before the date of her injury questioned a store employee about the “boxes and stuff’ in the aisles, and that she had seen and maneuvered around several other cases of merchandise in the aisles of the store on the day she was injured.

It seems evident that the presence of cases of merchandise — each of which was at least 12-13 inches high and 15-16 inches wide — in the aisles of the store presents an open and obvious hazard of a fall. No evidence was presented indicating that the cases of merchandise were in any way obscured or hidden from view; rather, the evidence clearly established that the eases of merchandise had been placed in the aisles in plain view of anyone attempting to navigate the aisles. The application of an objective standard, as set forth in Jones Food, supra, and Mountain Top, supra, compels the conclusion that such a hazard was open and obvious. The condition of the premises was open and obvious for all to see, and it is undisputed that Taylor had noticed and maneuvered around several cases of merchandise in the aisles before her fall.

Based on the foregoing, we conclude that the cases of merchandise that caused Taylor to fall were an open and obvious hazard and that, accordingly, Dolgencorp owed Taylor no duty to eliminate the hazard or to warn her of the hazard. Thus, Taylor’s negligence claim fails as a matter of law, and the trial court erred by denying Dolgeneorp’s motions for a JML on the negligence claim.

II. Wantonness Claim

As mentioned above, Dolgencorp argues, among other things, that the trial court erred by denying its motions for a JML on the wantonness claim against it because the cases of merchandise were an open and obvious hazard and, thus, it says, it had no duty to eliminate the hazard or to warn Taylor of the hazard. See Sessions, 842 So.2d at 652. Dolgencorp correctly notes that this Court previously has defined wantonness “ ‘as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result.’” Bozeman v. Central Bank of the South, 646 So.2d 601, 603 (Ala.1994) (quoting Stone v. Southland Nat’l Ins. Corp., 589 So.2d 1289, 1292 (Ala.1991), quoting in turn McDougle v. Shaddrix, 534 So.2d 228 (Ala.1988) (emphasis added)); in her brief on appeal, Taylor expressly adopts Dolgencorp’s “general statement of the law regarding wantonness.”

Taylor primarily relies on the following factual assertions in contending that Dol-gencorp’s conduct rises to the level of wantonness. Taylor contends that cases of merchandise had been stored in the aisles of the store for several years before her accident because, she says, the stockroom was overcrowded with Christmas merchandise and could not hold any additional merchandise. Taylor also contends that, although store employees had made numerous requests of their district manager for assistance regarding the overcrowded stockroom since 1999, their requests had gone unheeded. Taylor further contends that Dolgencorp’s wanton conduct is evidenced by the fact that, in October 2001, another store customer had fallen over “some excess merchandise stored in the aisle,” but, despite being aware of that accident, Dolgencorp made no effort to remedy the hazardous condition. Moreover, Taylor contends that Dolgencorp acted with reckless disregard for the safety of its customers because, Taylor says, the cases of merchandise were stored in the aisles in violation of store policy.

Taylor contends that the testimony of certain store employees also evidences the wanton nature of Dolgencorp’s conduct. Taylor notes that a former store employee, Vicki Brown, testified that the store “was an accident ready to happen” on the day Taylor fell because, according to Brown, “our stockroom was full and we had a floor full of boxes.” Taylor also notes that another former store employee, James Bet-tis, testified that the store was a “wreck,” a “mess,” and so cluttered that “[y]ou couldn’t hardly get through” on the day Taylor fell.

Regarding Taylor’s negligence claim, we concluded that the cases of merchandise that caused Taylor to fall were an open and obvious hazard and, accordingly, that Dolgencorp owed Taylor no duty to eliminate the hazard or to warn her of the hazard. Because Dolgencorp owed no duty to Taylor, her wantonness claim must also fail as a matter of law; thus, the trial court erred by denying Dolgencorp’s motions for a JML on the wantonness claim. See Sessions, supra; see also Lilya v. Greater Gulf State Fair, Inc., 855 So.2d 1049, 1056 (Ala.2003) (concluding in a case in which Lilya was injured when he fell from a mechanical bull ride while attending a fair on the premises owned by Greater Gulf State Fair, Inc., that the condition that caused Lilya’s injuries was an open and obvious hazard, that the premises owner thus owed no duty to warn Lilya of the possible danger, that “[wjithout the existence of a duty, Lilya’s negligence and wantonness claims fail as a matter of law, and that the trial court’s summary judgment as to those claims was appropriate” (emphasis added)).

Because Taylor’s negligence and wantonness claims fail as a matter of law, we reverse the trial court’s judgment and render a judgment for Dolgencorp.

REVERSED AND JUDGMENT RENDERED.

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

COBB, C.J., dissents.

COBB, Chief Justice

(dissenting).

I respectfully disagree with my colleagues that the trial court should have granted the motion for a judgment as a matter of law filed by Dolgencorp, Inc. Therefore, I dissent.

This Court has long held that “a premises owner owes any business invitee ‘ “a duty to exercise reasonable care to maintain its premises in a reasonably safe condition.” ’ ” Shiv-Ram, Inc. v. McCaleb, 892 So.2d 299, 314 (Ala.2003) (quoting Kmart Corp. v. Peak, 757 So.2d 1138, 1144 (Ala.1999), quoting in turn Norris v. Wal-Mart Stores, Inc., 628 So.2d 475, 477 (Ala.1993)). See also Borden v. Consumer Warehouse Foods, Inc., 601 So.2d 976, 979 (Ala.1992) (“The duty of a shopkeeper to maintain premises in a reasonably safe condition for its invitees is well settled.”). However, “as a general rule, an invitor will not be liable for injuries to an invitee resulting from a danger which was known to the invitee or should have been observed by the invitee in the exercise of reasonable care.” Quillen v. Quillen, 388 So.2d 985, 989 (Ala.1980).

As I noted in my dissent to the overruling of the application for rehearing in Jones Food Co. v. Shipman, 981 So.2d 355 (Ala.2006):

“ ‘The question whether a danger is open and obvious is generally one of fact.’ Howard v. Andy’s Store for Men, 757 So.2d 1208, 1211 (Ala.Civ.App.2000). ‘[T]he plaintiffs appreciation of the danger is, almost always, a question of fact for the determination of the jury.’ F.W. Woolworth Co. v. Bradbury, 273 Ala. 392, [396], 140 So.2d 824, [827] (1962). Furthermore, ‘[t]here is a presumption that a jury’s verdict is correct; that presumption is strengthened when the trial court has denied a motion for a new trial.’ SouthTrust Bank v. Donely, 925 So.2d 934, 943 (Ala.2005) (citing First Alabama Bank of South Baldwin v. Prudential Life Ins. Co. of America, 619 So.2d 1313 (Ala.1993)).”

981 So.2d at 370 (Cobb, C.J., dissenting).

The majority discusses three opinions of this Court as well as two of the federal district court for the Middle District of Alabama applying Alabama law, all of which held that the question whether an item protruding into the aisle of a store is an open and obvious hazard is one for the trier of fact. The majority in fact quotes Williams v. Bruno’s, Inc., 632 So.2d 19 (Ala.1993), in which this Court opined:

“One could reasonably infer from [Williams’s] testimony that Williams was focusing his attention on the shelves, not that he was looking where he was going. Nowhere in Williams’s testimony does he say that the strips were obvious to him before he fell; in fact, Williams stated that he did not see the strips until after he fell.”

632 So.2d at 22. I believe the same rationale holds true in this case.

I also find persuasive the federal district court’s decision in Hunter v. Durr Systems, Inc., (No. 2:06cv411-WHA, April 24, 2007) (M.D.Ala.2007) (not reported in F.Supp.2d), a case not discussed in the majority opinion. In Hunter, a freelance photographer was taking photographs of a robotic paint booth at the Hyundai Motor Manufacturing plant in Montgomery. The booth contained an elevated walkway with a metal grated floor. On the day the photographer was present, a grate approximately 4 feet by 2 feet was missing from the walkway. During the photo session, the photographer fell through the hole created by the missing grate and sustained injuries. Relying on Williams, the federal district court denied the motion for a summary judgment filed by Durr Systems, Inc., stating:

“Just as the Williams court found that protruding strips on the floor of a grocery store were not definitively open and obvious where the shopper’s focus was on the shelves instead of the walhway, this court believes that a jury potentially could find that the missing grate was not open and obvious because Hunter was focused on photographing the robotic arms instead of the walkway.”

The federal district court for the Middle District of Alabama addressed a similar issue in Blizzard v. Food Giant Supermarkets, Inc., 196 F.Supp.2d 1202 (M.D.Ala.2002), a case discussed in the majority opinion. In Blizzard, a grocery store customer tripped over an end-cap pallet, approximately 4 feet by 4 feet by 8 inches in size, at the end of the grocery store aisle. In denying Food Giant’s motion for a summary judgment, the federal district court, again relying on Williams, wrote: “The court cannot conclude, however, that there is a legally significant difference in this case between Blizzard’s looking at cereal apparently intended by Food Giant to be viewed by customers while she was attempting to buy a particular product, and the plaintiff in Williams who was shopping for products on the shelves.” 196 F.Supp.2d at 1208.

Considering the foregoing, and viewing the facts in the light most favorable to Taylor, the nonmovant, I conclude that Taylor presented sufficient evidence for the case to be submitted to the jury for a factual resolution. I firmly believe that the question whether a danger is open and obvious is generally one of fact and that this Court should use restraint in holding, as a matter of law, that something is an open and obvious danger. Taylor entered the Dollar General store to do her shopping. Dolgencorp, as does any other retail store, placed items on its shelves to draw the consumer’s attention to those items. Because Taylor was focused on her shopping and was looking for the fabric softener on the shelf instead of focusing on the floor of the shopping aisle, I believe that reasonable persons could differ as to whether the boxes were an open and obvious hazard, and, thus, I believe that the entry of a judgment as a matter of law for Dolgencorp on this issue would be improper. See Brookwood Med. Ctr. v. Lindstrom, 763 So.2d 951, 952 (Ala.2000) (“A judgment as a matter of law ‘is proper (1) where the nonmoving party has failed to present substantial evidence regarding some element essential to her claim, or (2) where there is no disputed issue of fact upon which reasonable persons could differ.’ ”). Although the record indicates that Taylor noticed other boxes in the aisles of the store, there is no indication in the record that Taylor saw the specific boxes in the back aisle before she fell over them.

I also dissent from the majority’s holding that Taylor’s wantonness claim must likewise fail as a matter of law. Statutorily, wantonness is defined as “[c]onduct which is carried on with a reckless or conscious disregard for the rights or safety of others.” Ala.Code 1975, § 6-11-20(b)(3). Likewise, “ ‘ “[w]antonness” has been defined by the Court as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result. McDougle v. Shaddrix, 534 So.2d 228 (Ala.1988).’” Bozeman v. Central Bank of the South, 646 So.2d 601, 603 (Ala.1994) (quoting Stone v. Southland Nat’l Ins. Corp., 589 So.2d 1289, 1292 (Ala.1991)).

The record is replete with evidence indicating that Dolgencorp and its employees knew about the condition of the Dollar General store in Jackson and appreciated the potential consequences of its cluttered aisles. A former employee testified that “our stockroom was full and we had a floor full of boxes that we — it was all over the store, full of boxes. All around the store. It was an accident ready to happen.” Another former employee testified that the store was “a mess” and “a wreck” on the day Taylor was injured. The former manager of the Jackson store testified that it was against company policy to have boxes in the aisles of the store, that she recognized that having boxes in the aisles was a potential hazard, and that she had complained to her direct supervisor to no avail about the overflowing stockroom that necessitated the storage of merchandise in the aisles. This evidence is substantial enough to warrant a finding that Dolgen-corp appreciated the hazardous condition created by the unopened boxes of merchandise in the aisles and that it consciously refused to remedy the situation.

Because I believe substantial evidence was presented to defeat Dolgencorp’s motion for a judgment as a matter of law and because substantial evidence was presented of Dolgencorp’s inaction, which I believe amounted to evidence of wantonness, I respectfully dissent.

      . Taylor's deposition was read into the record at trial.

      . The complaint also stated three additional counts that are not at issue in this appeal: Count II alleged that, under the doctrine of respondeat superior, Dolgencorp is liable for Bailey's negligent and/or wanton actions; count III alleged that Dolgencorp negligently and/or wantonly hired, trained, and/or supervised Bailey; and count IV asserted a loss-of-consortium claim against Dolgencorp and Bailey on behalf of Cave.

      . The trial court also stated that Cave's loss-of-consortium claim was “evaded [sic] by [Cave's] death.” The record on appeal reveals that Cave died before trial.

      . In January 2009, this Court entered an order remanding the case to the trial court, noting that the "claims stated by plaintiff Rena Cave against the defendants, and claims stated by plaintiffs against defendant Linda Bailey, have not been adjudicated ...." Subsequently, the trial court entered an “order of dismissal and final judgment” dismissing with prejudice Cave's loss-of-consortium claim, entering a judgment in favor of Bailey on all claims asserted against her, and entering a judgment in favor of Taylor and against Dol-gencorp in the amount of $260,000 ($85,000 compensatory damages and $175,000 punitive damages).

      . We note that United States district court decisions are not controlling authority in this Court. See Buist v. Time Domain Corp., 926 So.2d 290, 297 (Ala.2005) ("Even considering these cases directly on point, however, they are United States district court cases and can serve only as persuasive authority.” (citing Glass v. Birmingham. S. R.R., 905 So.2d 789, 794 (Ala.2004))).

        . See note 5, supra.

      . I am also troubled by what appears to be a trend of this Court as exemplified by this case and Jones Food Co. v. Shipman, supra, to interject itself into the place of the jury and hold that a danger is open and obvious as a matter of law. This Court should be respectful of the long-standing principle that the question whether a danger is open and obvious is generally one for the trier of fact. See Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1195 (Ala.2002) ("Whether a condition is open and obvious is generally a question for the jury.”); F.W. Woolworth Co. v. Bradbury, 273 Ala. 392, 396, 140 So.2d 824, 827 (1962) (“We have long been committed to the proposition that the plaintiffs appreciation of the danger is, almost always, a question of fact for the determination of the jury.”).