2005 Ala

2005 Ala. LEXIS 78, *

Fox Alarm Company, Inc. v. Claude Wadsworth; Claude Wadsworth v. Fox Alarm
Company, Inc.

1020994, 1021031

SUPREME COURT OF ALABAMA

2005 Ala. LEXIS 78

May 27, 2005, Released

SUBSEQUENT HISTORY: [*1] Released for Publication September 1, 2005.

PRIOR HISTORY: Appeals from Bibb Circuit Court. (CV-99-45). Fox Alarm Co. v.
Wadsworth, 2005 Ala. LEXIS 17 (Ala., Jan. 14, 2005)

DISPOSITION: 1020994 -- APPLICATION GRANTED; NO-OPINION AFFIRMANCE OF APRIL
30, 2004, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN
PART; AND REMANDED WITH DIRECTIONS. 1021031 -- APPLICATION GRANTED;
NO-OPINION AFFIRMANCE OF APRIL 30, 2004, WITHDRAWN; OPINION SUBSTITUTED;
APPEAL DISMISSED.

CASE SUMMARY

PROCEDURAL POSTURE: The Bibb Circuit Court (Alabama) denied a post-verdict
motion for judgment as a matter of law (JML) filed by appellant, an alarm
company (company), overruled its objection to a jury instruction on damages,
and ruled that two lay witness could testify as to an ultimate issue in the
case. The company appealed from those orders, and in a second action,
appellee customer cross-appealed the order for JML on his claim of
wantonness.

OVERVIEW: Upon the company's appeal, the court first held that it did not
preserve for review its claims regarding the sufficiency of the evidence and
did not preserve arguments that it did not owe the customer any duty.
Further, even if it did, the contract exculpated it. Second, the company
made a prima facie showing that the limitation-of-liability clause was not
ambiguous or unconscionable, and the customer failed to refute that showing.
Third, because the limitation-of-liability clause was enforceable, the
company's damages were limited to $ 250. Fourth, the lay witness testimony
was not admitted as lay-opinion testimony pursuant to Ala. R. Evid. 701 but
was properly admitted as expert testimony in the field of investigating
burglaries and aided the jury as to the customer's negligence claim.
Finally, as to the customer's wantonness claim, the record failed to show
that the business consciously did some act or omitted to do some duty.
Moreover, evidence showing that the series of alarms could have indicated a
burglary in progress and that the company failed to inform the police of the
repeat alarms was not the same as showing that it was conscious that injury
would likely result.

OUTCOME: Upon the company's appeal, the judgment regarding the customer's
negligence claim was affirmed. However, due to a valid limitation of
liability clause, the judgment in excess of $ 250 against the company was
reversed. Moreover, the cross-appeal was dismissed.

JUDGES: SEE, Justice. Nabers, C.J., and Houston, Brown, and Stuart, JJ.,
concur. Lyons, Johnstone, Harwood, and Woodall, JJ., concur in part and
dissent in part. PARKER, Justice (dissenting).

OPINION: On Second Application For Rehearing

SEE, Justice.

This Court's no-opinion affirmance of April 30, 2004, is withdrawn and the
following opinion is substituted therefor.

Fox Alarm Company, Inc., appeals from a denial by the trial court of its
postverdict motion for a judgment as a matter of law ("JML"). On appeal, Fox
Alarm also questions the trial court's overruling Fox Alarm's objection to a
jury instruction on damages, and from a ruling allowing two lay witnesses to
testify as to what Fox Alarm argues is the ultimate issue in the case (case
[*2] no. 1020994). Claude Wadsworth cross-appeals the JML in favor of Fox
Alarm on Wadsworth's claim of wantonness (case no. 1021031). We affirm in
part, reverse in part, and remand with directions as to case no. 1020994; we
dismiss the appeal in case no. 1021031.

I.

Fox Alarm was employed to monitor the alarm system at George's Auto Parts, a
business owned by Wadsworth. At 9:17 p.m. on March 8, 1999, Fox Alarm
received a signal indicating that one of the rear doors of the business or
the outside siren had been tampered with. Fox Alarm telephoned Wadsworth to
inform him of the signal and told him that if Fox Alarm needed him it would
call him back. Fox Alarm also informed the police of this signal. The alarm
signaled again at 9:46 p.m., 9:54 p.m., 10:02 p.m., and 10:10 p.m. These
later signals indicated that someone had set off the motion detectors inside
the building. Fox Alarm's dispatcher decided not to inform the police or
Wadsworth of these signals because she had telephoned the police after she
received the first signal, and she believed that the later signals were
caused by the police checking the building. Fox Alarm logged these signals
as repeat signals. The police investigated [*3] the building after the
first alarm; however, they could not investigate the rear of the building
because it was surrounded by a large fence.

At 2:18 a.m. the alarm system at George's Auto Parts signaled an entry to
the building -- a left- and a right-rear motion alarm. The dispatcher
telephoned the business twice and telephoned the police department again. At
2:21 a.m. the front motion detector and the fire-heat detector alarmed. Fox
Alarm notified the police of the fire alarm because it was different from
the other alarms. At 2:48 a.m. the police informed Fox Alarm that the
building was on fire. At 3:30 a.m. the police telephoned Fox Alarm in an
effort to find someone who had a key to the building. Fox Alarm could not
reach Wadsworth or anyone on the contact list for George's Auto Parts. Fox
Alarm then accessed Wadsworth's home account and telephoned the people on
that list. Fox Alarm eventually spoke with Wadsworth's brother, John, who
said that he would try and get the local police to go to Wadsworth's house
to tell him of the fire. The entire building from which George's Auto Parts
operated was destroyed by the fire. Wadsworth conducted an inventory after
the fire and reported [*4] the following items missing: 10 to 17
transmissions, a welding machine, burning outfits, and other miscellaneous
tools and equipment. The items were apparently taken during a burglary, and
the fire was started to cover the burglary. The persons responsible for the
burglary and arson were apprehended and prosecuted.

Wadsworth sued Fox Alarm alleging fraud, negligence, wantonness, and breach
of contract. Fox Alarm moved for a summary judgment as to the fraud,
negligence and breach-of-contract claims. n1 Wadsworth opposed the
summary-judgment motion as to the negligence and breach-of-contract claims,
but he admitted that a summary judgment was proper as to the fraud claim.
The trial court entered a summary judgment as to the fraud claim and denied
the summary-judgment motion as to the negligence and breach-of-contract
claims.

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n1 Fox Alarm did not move for a summary judgment with respect to the
wantonness claim, which it argues was not properly pleaded.

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The case went to trial on the negligence, breach-of-contract, [*5] and
wantonness claims. At the close of Wadsworth's case, Fox Alarm moved for a
JML n2 as to the negligence, breach-of-contract, and wantonness claims. The
trial court granted Fox Alarm's motion on the wantonness claim, but denied
it as to the negligence and breach-of-contract claims. Wadsworth moved for a
JML as to Fox Alarm's argument, raised in its answer, that the
alarm-monitoring agreement between it and Wadsworth ("the contract")
contained a limitation-of-liability clause that limited its damages to $
250. The trial court did not rule on the motion. At the close of all the
evidence, Fox Alarm renewed its motion for a JML as to the negligence and
breach-of-contract claims, and the trial court denied that motion. The trial
court, however, dismissed the breach-of-contract claim at Wadsworth's
request.

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n2 Fox Alarm actually moved for a "directed verdict"; however, "Rule 50(a),
Ala. R. Civ. P., now designates a motion for a directed verdict as a motion
for a judgment as a matter of law, and Rule 50(b) now designates a motion
for a JNOV as a renewed motion for a judgment as a matter of law." Ex parte
Liberty Nat'l Life Ins. Co., 797 So. 2d 457, 462 (Ala. 2001).

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The trial court instructed the jury that if it found for Wadsworth on the
remaining negligence claim, it needed to decide on an amount of compensatory
damages. Fox Alarm objected to the jury instruction regarding compensatory
damages, arguing that the contract limited damages to $ 250. The jury found
in favor of Wadsworth and against Fox Alarm and awarded Wadsworth damages in
the amount of $ 200,000. n3

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n3 Although Frank Love and Carolyn Love, who along with Stephen Hicks owned
Fox Alarm, were originally included listed as defendants, the verdict was
against Fox Alarm alone.

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Fox Alarm appeals the trial court's denial of its motion for a JML on
Wadsworth's negligence claim and also raises issues regarding the trial
court's overruling of Fox's objection to the damages instruction and the
trial court's ruling permitting Wadsworth's two lay witnesses to testify
regarding the ultimate issue in the case. Wadsworth cross-appeals the trial
court's JML in favor of Fox Alarm on his wantonness claim.

II.

Fox Alarm [*7] argues that the trial court erred in denying its preverdict
motion for a JML as to Wadsworth's negligence and breach-of-contract claims.
Wadsworth responds that Fox Alarm has not preserved the issue for review
because, he argues, Fox Alarm did not renew its motion for a JML after the
verdict. This Court stated in Sears, Roebuck & Co. v. Harris, 630 So. 2d
1018, 1025 (Ala. 1993), that a preverdict motion for a JML "'must be made at
the close of all the evidence and that a timely [postverdict motion for a
JML] must be subsequently made before an appellate court may consider on
appeal the insufficiency-of-evidence issue directed to the jury's verdict.'"
We explained in Clark v. Black, 630 So. 2d 1012, 1016 (1994), that "the
unsuccessful movant's failure to present the trial court with an opportunity
to revisit the sufficiency of the evidence issue in [a postverdict motion
for a JML] precludes appellate reversal of the denial of the [preverdict
motion for a JML]."

Fox Alarm moved for a JML at the close of Wadsworth's case and again at the
close of all the evidence. At the close of Wadsworth's case, Fox Alarm's
attorney stated:

"Judge, [*8] at this time I would like to move for a directed verdict
[n4 ] as to the negligence charge. There has not been a witness who has
offered any testimony as to what the standard in this industry with regards
to people monitoring alarm systems, nor has there been any testimony --"

At the close of all of the evidence, Fox Alarm's attorney stated: "I would
like to renew my motion -- you have already ruled on my motion for a
directed verdict as to wantonness. I would like to renew my request for a
directed verdict with regard to the negligence." However, Fox Alarm did not
move for a JML after the verdict was entered. Therefore, Fox Alarm did not
preserve for review its claims regarding the sufficiency of the evidence.

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n4 See supra note 2.

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Fox Alarm argues in its principal brief that the evidence was insufficient
to hold it liable for negligence and that its motion for a JML should have
been granted because, it argues: (1) Wadsworth cannot prove that Fox Alarm
owed him a duty, (2) assuming that Fox Alarm owed [*9] Wadsworth a duty,
the contract exculpated Fox Alarm, (3) Wadsworth cannot establish that his
losses were caused by Fox Alarm's alleged negligence, and (4) the outcome
would have been the same if Fox Alarm had notified the police of the repeat
alarms. In its reply brief, Fox Alarm argues for the first time that the
first two of these arguments present legal issues rather than
sufficiency-of-the-evidence issues, and that, therefore, Fox Alarm did not
waive them on appeal by its failure to renew its motion for a JML after the
verdict was entered. Barnes v. Dale, 530 So. 2d 770, 777 (Ala. 1988), rev'd
on other grounds, 581 So. 2d 479 (1990).

Fox Alarm, however, did not present these arguments to the trial court. Ex
parte Linnell, 484 So. 2d 455, 457 (Ala. 1986)("a lower court will not be
put in error for failure to rule on a matter which was not presented to it
or decided by it"). Fox Alarm argued to the trial court in its motions for a
summary judgment and for a preverdict JML only that its conduct was
reasonable under the circumstances and that Wadsworth had failed to present
any evidence indicating what actions were required by the [*10]
alarm-monitoring-industry standards.

Fox Alarm asserts for the first time on appeal that as a matter of law it
did not owe Wadsworth a duty and that, even if it did, the contract
exculpated Fox Alarm. In its principal brief, Fox Alarm presents these
arguments as sufficiency-of-the-evidence arguments; only in its reply brief
does Fox Alarm argue that the questions whether it owed Wadsworth a duty,
and, if so, whether the contract exculpated Fox Alarm, are questions of law
that did not need to be preserved by a postjudgment motion for a JML.
Arguments made for the first time in a reply brief will not be addressed on
appeal. Goodyear Tire & Rubber Co. v. Washington, 719 So. 2d 774, 778 (Ala.
1998). Therefore, we hold that Fox Alarm did not preserve for appeal its
arguments that it did not owe Wadsworth a duty and that, even if it did, the
contract exculpated Fox Alarm.

Fox Alarm argues that, even if this Court concludes that the jury properly
found it liable for negligence, the damages awarded by the jury should be
limited to $ 250 because the contract contained an express
limitation-of-liability clause. Wadsworth responds, without citing
authority, that Fox Alarm [*11] failed to raise this issue in the trial
court and therefore that this Court should not consider the issue whether
the limitation-of-liability clause is applicable.

In its motion for a summary judgment, Fox Alarm argued that the contract
limited Wadsworth's recovery to the amount specified under the contract. Fox
Alarm further argued that, while this Court has not decided the validity of
a limitation-of-liability clause identical to the one in the contract, other
jurisdictions have held that such a clause is enforceable. See Leon's
Bakery, Inc. v. Grinnell Corp., 990 F. 2d 44 (2d Cir. 1993), and D.L. Lee &
Sons, Inc. v. ADT Sec. Sys., Mid-South, Inc., 916 F. Supp 1571 (S.D. Ga.
1995). When Wadsworth moved for a preverdict JML as to the
limitation-of-liability clause, Fox Alarm argued that the clause should be
enforced in this case because of the difficulty of predicting damages. n5
Fox Alarm also raised this issue during its cross-examination of Wadsworth,
at the beginning of the charge conference, and again after the trial court
had read the oral charge to the jury. At the beginning of the charge
conference, counsel for Fox Alarm stated, "Judge, I [*12] would object to
any charge on damages in this claim pursuant to my earlier discussion
regarding the punitive damages or liquidated damage claim in the contract."
After the charge was read to the jury, Fox Alarm's trial counsel stated, "I
would like to renew my objection to any charge on the issue of damages
because of the liquidated damages part of the contract." We conclude that
Fox Alarm preserved this issue for review. n6

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n5 Wadsworth voluntarily dismissed his breach-of-contract claim; however,
the limitation-of-liability clause is not limited to specific claims.

n6 "No party may assign as error the giving or failing to give a written
instruction, or giving of an erroneous, misleading, incomplete, or otherwise
improper oral charge unless that party objects thereto before the jury
retires to consider its verdict, stating the matter objected to and the
grounds of that objection." Rule 51, Ala. R. Civ. P.; see also Fraser v.
Reynolds, 588 So. 2d 442, 445 (Ala. 1990)(stating that this Court will
review the trial court's jury charge when that charge has been timely
objected to and the objection has been overruled by the trial court, or the
trial court has refused to give a requested written instruction). In this
case, Fox Alarm twice objected and stated the matter objected to -- the
trial court's charge on damages. Fox Alarm also stated the grounds for its
objections -- the limitation-of-liability clause. The trial court overruled
those objections.

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Wadsworth argues that the limitation-of-liability clause is ambiguous and
unconscionable, and he cites Ex parte Palm Harbor Homes, Inc., 798 So. 2d
656 (Ala. 2001), for the proposition that any ambiguity must be construed
against the drafter of the contract -- Fox Alarm. At trial, Wadsworth did
not argue that the contract was ambiguous or unconscionable; he argued that
Fox Alarm had not met its burden of proving that the limitation-of-liability
clause was valid under Camelot Music, Inc. v. Marx Realty & Improvement Co.,
514 So. 2d 987, 990 (1987)(setting out the criteria for determining whether
a limitation-of-liability clause is valid or is a penalty provision that is
void as against public policy). This Court will not consider an argument
raised for the first time on appeal. Andrews v. Merritt Oil Co., 612 So. 2d
409, 410 (Ala. 1992).

In Fleming Farms v. Dixie AG Supply, Inc., 631 So. 2d 922 (Ala. 1994), this
Court stated that once the party seeking to enforce a
limitation-of-liability clause makes a prima facie showing that the clause
is not unconscionable, the burden shifts to the plaintiff to present
substantial [*14] evidence to the contrary. This Court concluded in that
case that the plaintiffs had failed to meet their burden and held,
therefore, that the limitation-of-liability clause was not unconscionable.
631 So. 2d at 926. Similarly, in this case, Fox Alarm made a prima facie
showing that the limitation-of-liability clause is not ambiguous or
unconscionable, and Wadsworth did not present evidence to refute that
showing. n7

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N7 Wadsworth testified at trial that he did not read the contract with Fox
Alarm before he signed it. However, when Fox Alarm read the
limitation-of-liability clause to Wadsworth at trial, it then asked him,
"You acknowledged that Fox Alarm was not an insurer and didn't insure your
property, and that if there was a problem or any damages arose, $ 250 was
the amount agreed upon as damages; is that correct?" Wadsworth responded,
"Yes, sir."

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Wadsworth argues that Fox Alarm did not meet its burden under Morgan v.
South Central Bell Telephone Co., 466 So. 2d 107 (Ala. 1985), [*15] of
showing that the limitation-of-liability clause is enforceable. Wadsworth's
reliance on Morgan, however, is misplaced. In Morgan, this Court addressed
exculpatory clauses and set out a six-part test for analyzing the validity
of such clauses. 466 So. 2d at 117. An exculpatory clause "relieves a party
from liability resulting from a negligent or wrongful act." Black's Law
Dictionary 608 (8th ed. 2004). At issue in this case, however, is a
limitation-of-liability clause, not an exculpatory clause. Thus, Wadsworth's
reliance on Morgan is misplaced.

The limitation-of-liability clause found in the contract states, in
pertinent part:

"It is impractical and extremely difficult to fix the actual damages, if
any, which may proximately result from the failure on the part of [Fox
Alarm] to perform any of its obligations hereunder: therefore should [Fox
Alarm] be found liable for loss, damage, or injury due to a failure of
service or equipment in any respect, its liability shall be limited to a sum
equal to the monitoring charge hereunder for a period of service not to
exceed (6) months or $ 250.00 (whichever is greater) as agreed upon damages
and not [*16] as a penalty, as the exclusive remedy: and the provisions of
this paragraph shall apply if loss, damage or injury, irrespective of cause
or origin, results directly or indirectly to person or property from the
performance or obligator [sic] imposed by this Agreement."

Wadsworth states that the limitation-of-liability clause is ambiguous
because it is unclear whether it applies to Fox Alarm's alleged failure to
adequately monitor the alarm signals at George's Auto Parts on the night of
the alleged burglary and fire. However, the clause states that it expressly
applies to a "loss, damage, or injury due to a failure of service or
equipment ...." The limitation-of-liability clause unambiguously applies to
Fox Alarm's alleged failure to monitor the alarm system.

This Court has held that a provision in a sales agreement limiting a
seller's liability is enforceable. Puckett, Taul & Underwood, Inc. v.
Schreiber Corp., 551 So. 2d 979, 983 (Ala. 1989). See also Delta Air Lines,
Inc. v. Barnard, 799 So. 2d 208, 214-15 (Ala. Civ. App. 2001)(holding that a
limitation-of-liability provision in an airline ticket limited Delta's
liability for lost golf [*17] clubs to $ 1,250). Moreover, this Court has
held that "'limitations on damages that may be recovered are not, per se,
against public policy.'" Sears Termite & Pest Control, Inc. v. Robinson, 883
So. 2d 153, 156 (Ala. 2003)(quoting Leonard v. Terminix Int'l Co., 854 So.
2d 529 (Ala. 2002)).

We also note that the United State Court of Appeals for the Second Circuit,
in Leon's Bakery, Inc. v. Grinnell Corp., 990 F.2d 44 (2d Cir. 1993),
upholding a limitation-of-liability provision in a contract for the
installation of a fire alarm, stated, "Apparently a greater number of courts
have been concerned with the enforceability of such clauses in contracts for
the installation and servicing of burglar alarm systems, and those courts
have similarly upheld clauses limiting liability for the failure of such
systems." 990 F.2d at 48. See also E.H. Ashley & Co. v. Wells Fargo Alarm
Servs., 907 F.2d 1274, 1276 (1st Cir. 1990); Nahra v. Honeywell, Inc., 892
F. Supp. 962, 965 (N.D. Ohio 1995). The United States District Court for the
Southern District of Georgia similarly stated, "Limitation of liability
[*18] clauses involving fire and burglar alarms are commonly ruled
enforceable by courts." D.L. Lee & Sons, Inc., 916 F. Supp. at 1582. We
agree, and we hold that the limitation-of-liability clause found in the
contract is enforceable and that the trial court erred when it refused to
limit Fox Alarm's damages to $ 250 and twice overruled Fox Alarm's
objections to the instruction on damages.

Fox Alarm raises two arguments concerning the testimony of Officer Ronald
Brown and Sgt. Larry Waldrop of the Bessemer Police Department. First, Fox
Alarm argues on appeal that the trial court should not have allowed Officer
Brown and Sgt. Waldrop to testify as experts because, Fox Alarm argues, the
officers are not qualified as experts in monitoring burglar and fire alarms.
Fox Alarm further argues that, although Rule 701, Ala. R. Evid., allows a
lay witness to testify as to his opinion, that testimony is limited to
inferences that are rationally related to that witness's perception. Fox
Alarm argues that Officer Brown and Sgt. Waldrop do not have firsthand
knowledge of facts on which to base their opinions. See 1 Charles Gamble,
McElroy's Alabama Evidence § 127.01(3)(5th ed. [*19] 1996). Contrary to
Fox Alarm's argument, the officers' testimony was not admitted as
lay-opinion testimony pursuant to Rule 701, Ala. R. Evid. However, the
record in this case establishes that the police officers' testimony was
properly admitted as expert testimony in the field of investigating
burglaries. n8 Officer Brown has served on the Bessemer Police Department
for over 23 years, is currently in charge of the Department's criminal
investigation division, and has attended seminars on how to investigate
burglaries. Similarly, Sgt. Waldrop has worked for the Bessemer Police
Department for 24 years and has served as the detective sergeant in charge
of investigating burglaries. An expert witness qualified "by knowledge,
skill, experience, training, or education" may testify in the form of an
opinion. Rule 702, Ala. R. Evid. Moreover, "the facts or data in the
particular case upon which an expert bases an opinion or inference may be
those perceived or made known to the expert at or before the hearing." Rule
703, Ala. R. Evid. We conclude that the trial court properly allowed the
officers' expert testimony. See Rules 702 and 703, Ala. R. Evid.

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n8 Specifically, Fox Alarm objects to the following testimony from Officer
Brown:

"Q. Captain Brown, let me show you. We have [9:17]. We have a left door,
right side and siren tamper call. Now what does this tell you as a police
officer?

"MR. CROWSON [Fox Alarm's attorney]: Objection, Your Honor. That's a call
log on a burglary alarm. He's not qualified to read a log report in that
manner. He is certainly not an expert on alarm systems or a monitoring
system.

"THE COURT: Overruled. He can give his impression of what that means to him.

"A. That indicates, would indicate to the police department that there is
possibly some tampering with the left side door.

"Q. Okay. And at 9:46 roughly, not quite 30 minutes later, the alarm comes
in, burglary left rear and right rear motion. What does that tell you as an
officer?

"A. That tells me there is some movement going on in the area, more so than
just a door being tampered with.

"Q. Captain Brown, in this case, a little less than 10 minutes later we have
additional motion alarms. At 10:02 we have additional motion alarms, at
10:10 another motion alarm. What does this tell you in conjunction with a
door or siren tamper followed by four motion alarms? Does that -- what does
that tell you?

"MR. CROWSON: Objection, Your Honor, same. He is not an expert on monitoring
alarms. He can give whatever his impression is, but he certainly cannot give
his opinion.

"THE COURT: Overrule the objection. He can answer.

"A. I would assume that there is some intrusion into the building with that
much motion.

"Q. Would you assume -- is there anything in this fact situation that would
lead you to assume that this is a false call?

"MR. CROWSON: Objection, Your honor. He's not qualified to give that
opinion.

"THE COURT: Overruled.

"A. No. I would definitely think there is a person inside of that building.
That would be my assumption."

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Second, Fox Alarm argues that the trial court erred when it allowed Sgt.
Waldrop to testify that Fox Alarm should have telphoned the police
department to advise the police of the repeat alarm at 9:46. Fox Alarm
argues that the trial court's allowing this testimony constituted opinion
testimony as to the ultimate issue in the case. See Rule 704, Ala. R. Evid.
("Testimony in the form of an opinion or inference otherwise admissible is
to be excluded if it embraces an ultimate issue to be decided by the trier
of fact.").

Sgt. Waldrop testified, in pertinent part:

"Q. If Fox Alarm got a door tamper [signal] and siren tamper at 9:17 and
called and let the police know that and then they got a motion call alarm
approximately 30 minutes later, actually four of them at about 10-minute
intervals, give or take, as a patrolman on the scene, would you want to know
this information?

"A. Yes, sir, I believe I would.

"Q. And in your opinion should they call y'all and tell the dispatcher that
we got a motion.

"MR. CROWSON: Objection, your Honor, not qualified to answer that.

"THE COURT: Overruled.

"Q. You can answer.

"A. Will you repeat it?

"Q. Should Fox Alarm call y'all and tell [*21] you if they get motion
following a door tamper?

"MR. CROWSON: Same objection.

"THE COURT: Overruled.

"A. I would think so, yes, sir."

Fox Alarm argues that Sgt. Waldrop's testimony suggests -- directly or
indirectly -- that Fox Alarm had a duty to report the March 8, 1999, repeat
alarms to the Bessemer Police Department. We do not understand Sgt.
Waldrop's testimony as stating that Fox Alarm owed Wadsworth a legal duty to
call in the alarm to the Bessemer Police Department. Rather, Sgt. Waldrop's
testimony was offered in the context of his experience as an officer who
investigates burglaries. He would have wanted to know about the repeat
alarms and, in his opinion, Fox Alarm should, therefore, have telephoned the
police department when it detected the motion alarms. We hold that the trial
court did not improperly admit Sgt. Waldrop's testimony.

We also note that even if the officers' testimony does go to an ultimate
issue in this case, the Advisory Committee's Notes to Rule 704, Ala. R.
Evid., state, "There is no intent that adoption of Rule 704 should abrogate
preexisting case law liberalizing the application of the ultimate issue
rule." n9 "The trend of the Alabama appellate [*22] courts is to allow
expert testimony as to an 'ultimate issue' if that testimony would aid or
assist the jury." Travis v. State, 776 So. 2d 819, 849 (Ala. Crim. App.
1997), aff'd, 776 So. 2d 874 (Ala. 2000); 1 Charles Gamble, McElroy's
Alabama Evidence § 127.02(6)(5th ed. 1996). "The touchstone of admissibility
now appears to be that of whether the expert's opinion will aid or assist
the trier of fact [Ala. R. Evid. 702]." Charles W. Gamble, Gamble's Alabama
Rules of Evidence -- A Trial Manual for Making and Answering Objections §
704 (2d ed. 2002). We conclude that the trial court did not exceed its
discretion in allowing the testimony of Officer Brown and Sgt. Waldrop.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n9 See Eubanks v. Hale, 752 So. 2d 1113, 1145 (Ala. 1999)(permitting expert
opinion as to handwriting based upon comparison samples); Tims v. State, 711
So. 2d 1118, 1125 (Ala. Crim. App. 1997)(permitting expert testimony as to
defendant's intoxication); CSX Transp., Inc. v. Dansby, 659 So. 2d 35 (Ala.
1995)(allowing audiologist's opinion testimony that railroad employee's
exposure to noise levels on trains was cause of employee's hearing loss);
Williamson v. Stephens, 577 So. 2d 1272 (Ala. 1991)(allowing owner in a
conversion action to testify as to the value of his property); Seibold v.
State, 287 Ala. 549, 253 So. 2d 302 (1971)(permitting expert testimony as to
defendant's alleged insanity); Caldwell-Watson Foundry & Mach. Co. v.
Watson, 183 Ala. 326, 62 So. 859 (1913)(allowing expert testimony that
hydraulic press was defective).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*23]

Finally, Fox Alarm argues that because its contract with Wadsworth reserved
to Fox Alarm the right to cancel any alarm it believed to be false, the
officers' opinions were irrelevant. See Rule 402, Ala. R. Evid. Whether to
admit evidence based on its relevance is a question within the sound
discretion of the trial court, and its decision will not be overturned on
appeal absent an indication that it has exceeded its discretion. Bowers v.
Wal-Mart Stores, Inc., 827 So. 2d 63, 71 (Ala. 2002). We cannot say that the
trial court exceeded its discretion in admitting the officers' expert
testimony. The officers' testimony was relevant to Wadsworth's negligence
claim.

III.

Wadsworth cross-appeals, arguing that the trial court erred in entering a
JML in favor of Fox Alarm on Wadsworth's wantonness claim. n10 In McKenzie
v. Killian, 887 So. 2d 861, 871 (Ala. 2004), this Court, quoting Alfa Mutual
Insurance Co. v. Roush, 723 So. 2d 1250, 1256 (Ala. 1998), stated:

"'"Wantonness" has been defined by this Court as the conscious doing of some
act or the omission of some duty, while knowing of the existing conditions
and being conscious [*24] 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 (Ala. 1994). To prove wantonness, it is not essential to prove
that the defendant entertained a specific design or intent to injure the
plaintiff.'"

The record does not indicate that Fox Alarm consciously did some act or
omitted to do some duty. Wadsworth had the burden of presenting substantial
evidence indicating that Fox Alarm acted wantonly. See Alabama Dep't of
Transp. v. Land Energy, Ltd., 886 So. 2d 787, 791-92 (Ala. 2004)("the
nonmovant must present substantial evidence to withstand a JML"). Wadsworth
argues that "Fox Alarm intentionally followed [its] policy of 'no action' in
response to subsequent motion alarms even though [it] admitted there were
different alarms and acknowledged that the information in [its] possession
could have indicated a burglary in progress"; however, the record does not
indicate that Wadsworth presented any evidence indicating that Fox Alarm was
conscious that injury would "likely or probably result" from its failure to
inform the police of repeat alarms. Evidence showing [*25] that the series
of alarms could have indicated a burglary in progress and that Fox Alarm
failed to inform the police of the repeat alarms is not the same as evidence
showing that Fox Alarm was conscious that injury would likely result. To the
contrary, the evidence indicates that Fox Alarm telephoned the police after
receiving the first alarm and that its dispatcher believed that the alarms
following the first alarm were caused by the police responding to its call.
Viewing the evidence in the light most favorable to Wadsworth, we conclude
that Wadsworth did not present substantial evidence of wantonness.
Therefore, Wadsworth's cross-appeal is dismissed.

IV.

We affirm the judgment of the trial court as to Wadsworth's negligence
claim. However, we hold that Wadsworth's contract with Fox Alarm limited Fox
Alarm's liability to $ 250; therefore, we reverse the judgment insofar as it
awarded Wadsworth $ 200,000 and remand this case to the trial court to limit
the damages awarded to Wadsworth to $ 250. We dismiss Wadsworth's
cross-appeal.

1020994 -- APPLICATION GRANTED; NO-OPINION AFFIRMANCE OF APRIL 30, 2004,
WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND
[*26] REMANDED WITH DIRECTIONS.

1021031 -- APPLICATION GRANTED; NO-OPINION AFFIRMANCE OF APRIL 30, 2004,
WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

Nabers, C.J., and Houston, Brown, and Stuart, JJ., concur.

Lyons, Johnstone, Harwood, and Woodall, JJ., concur in part and dissent in
part.

CONCURBY: LYONS (In Part); JOHNSTONE (In Part); HARWOOD (In Part)

DISSENTBY: LYONS (In Part); JOHNSTONE (In Part); HARWOOD (In Part); PARKER

DISSENT:

LYONS, Justice (concurring in part and dissenting in part).

I concur in all aspects of the main opinion except insofar as it reverses
the damages award entered by the trial court, holding "the trial court erred
when it refused to limit Fox Alarm's damages to $ 250 and twice overruled
Fox Alarm's objections to the instruction on damages." ___ So. 2d ___
(emphasis added). Fox Alarm never requested an instruction limiting its
damages to $ 250. The main opinion concludes that Fox Alarm preserved for
review the trial court's error in not enforcing the limitation-of-liability
clause in the contract. However, the trial court's ruling was based on its
erroneous conclusion as to the mootness of the question whether the clause
applied. Fox Alarm never called the trial [*27] court's attention to the
error of that conclusion.

In its answer, Fox Alarm asserted as an affirmative defense the availability
of a contractual limitation-of-liability clause limiting damages to the sum
of $ 250. Wadsworth moved for a preverdict judgment as a matter of law as to
this issue, contending that Fox Alarm had not sustained its burden of proof.
The trial court declined to rule on the motion at that stage of the
proceedings, stating, "I will rule on this, not right now."

At the charge conference, Wadsworth voluntarily dismissed his
breach-of-contract claim. At that juncture, the trial court stated that the
dismissal of the breach-of-contract claim mooted Wadsworth's motion for a
judgment as a matter of law on the liquidated-damages claim. That conclusion
was erroneous because the defense should have been allowed as to all of the
claims, regardless of whether Wadsworth elected to forgo his contract claim.
Nevertheless, the trial court, having erroneously concluded that the
voluntary dismissal of the breach-of-contract claim dispensed with Fox
Alarm's right to insist on the limitation of liability as a matter of law,
noted that Fox Alarm could merely argue to the jury that [*28] the contract
contained such a clause.

Fox Alarm, instead of pointing out that the dismissal of the
breach-of-contract claim did not render moot the question whether Fox Alarm
was entitled to insist upon its liquidated-damages claim, compounded the
confusion by objecting to "any charge on damages in this claim pursuant to
my earlier discussion regarding the punitive damage or liquidated damage
claim in the contract." If the trial court had agreed with Fox Alarm and
refused to give the jury any charge on damages, Wadsworth would have been
deprived of his right to seek damages in at least the amount of $ 250 and,
on proper objection, a judgment based on that ruling would have to be
reversed. The trial court, under the impression that the issue raised by the
presence of the limitation-of-liability clause in the contract was now moot,
thereafter charged the jury that if it found Wadsworth suffered injury or
damage as a result of Fox Alarm's negligence, it should award damages
measured by the loss suffered by Wadsworth. Fox Alarm again objected "to any
charge on the issue of damages because of the liquidated damages part in the
contract." From this statement the trial court was [*29] made aware that
Fox Alarm continued to insist on the applicability of the
limitation-of-liability clause. However, no ground was stated that would
have alerted the trial court to its fundamental error in concluding that
Wadsworth's voluntary dismissal of the breach-of-contract claim somehow
mooted the issue of the limitation-of-liability clause. Rule 51, Ala. R.
Civ. P., states, "No party may assign as error the giving or failing to give
a written instruction, or the giving of an erroneous, misleading,
incomplete, or otherwise improper oral charge unless that party objects
thereto before the jury retires to consider its verdict, stating the matter
objected to and the grounds of the objection." (Emphasis added.) The main
opinion erroneously accepts as sufficient Fox Alarm's statement of grounds
for its objection, although Fox Alarm, by insisting that no instruction on
damages be given, would have led the trial court into error had the court
accepted Fox Alarm's ground of objection and given no instruction on
damages.

I am not satisfied with the applicability of the harmless-error rule on the
basis that surely the trial court was fully apprised of Fox Alarm's position
and that further [*30] explanation would have made no difference in how the
trial court ruled on this issue. The trial court had erroneously concluded
that the dismissal of the breach-of-contract claim mooted the question
whether the liquidated-damages claim was available and Fox Alarm never
pointed out the error of that conclusion in any statement of its grounds.
Had Fox Alarm done so and, in so doing, requested an instruction limiting
the damages to $ 250, and the trial court thereafter refused to give such an
instruction, I would be able to join an opinion reversing the trial court's
judgment for failing to give such an instruction. I must respectfully
dissent from that part of the main opinion that reverses the damages award
entered on the jury verdict and limits the damages to $ 250 pursuant to the
limitation-of-liability clause in the contract.

Woodall, J., concurs.

JOHNSTONE, Justice (concurring in part and dissenting in part).

I join in Justice Lyons's special writing, except that I express no opinion
on whether Fox Alarm would be entitled to relief if it had sufficiently
requested a jury charge invoking the limitation-of-liability clause. Since
Fox Alarm did not ask for any such [*31] instruction but only objected to
"any charge on damages" and "any charge on the issue of damages," Fox Alarm
is not due any relief. The objections interposed by Fox Alarm were
themselves illegal because "it is error for the trial court to leave the
jury ... without instructions as to the proper measure of damages to be used
in arriving at its verdict. Russell v. Thomas, 278 Ala. 400, 178 So. 2d 556
[(Ala. 1965)]." Cunningham v. Lowery, 45 Ala. App. 700, 708, 236 So. 2d 709,
717 (1970).

Harwood, J., concurs.

HARWOOD, Justice (concurring in part and dissenting in part).

I concur in Justice Lyons's special writing, except that portion as to which
Justice Johnstone elects in his special writing to express no opinion; I
join Justice Johnstone's special writing in that respect.

PARKER, Justice (dissenting).

I dissent as to the overruling of the application for rehearing. I write
further to note that, had I been on the Court when the original opinion was
issued on January 14, 2005, I would have joined Justice Lyons's special
writing concurring in part and dissenting in part.