Basinger v. Martin

RICHARD L. HOLMES, Retired Appellate Judge. Don Basinger filed a claim in small claims court against Thomas M. Martin, alleging that Martin owed him $590 for carpentry work performed. A hearing was held and a judgment was entered in favor of Basinger. Martin appealed to the circuit court. After an ore tenus hearing, the circuit court entered an order, wherein it found that when Basinger did the carpentry work, he was a subcontractor and not an employee of Martin. The court also found that Basing-er’s work was not performed in a good and workmanlike manner and that Martin would have to have the work redone. The circuit court entered a judgment in favor of Martin. Basinger appeals, contending that the trial court erred when it determined that he was an independent subcontractor rather than an hourly employee of Martin. It is well settled that when a trial court enters an order following an ore tenus hearing, its judgment is presumed to be correct. Moore v. Williams, 519 So.2d 1337 (Ala.1988). The judgment of the trial court will be reversed only if it appears, after consideration of the evidence and all reasonable inferences to be drawn therefrom, that the judgment is plainly and palpably wrong. Moore, 519 So.2d 1337. [899] This court has previously recognized that any errors committed by the trial court must be affirmatively demonstrated by the record filed in this court, and if the record does not disclose the facts upon which an alleged error is based, we will not consider that issue. State v. Askew, 455 So.2d 36 (Ala.Civ.App.1984), Crowder v. Zoning Board of Adjustment, 406 So.2d 917 (Ala.Civ.App.1981). The record before this court does not contain a transcript of the trial. This court has no alternative but to affirm the trial court’s actions in cases, such as the present case, where the court’s judgment was entered pursuant to testimony received at an ore tenus hearing and where such testimony is not contained in the record on appeal. Sanders v. Sanders, 477 So.2d 462 (Ala.Civ.App.1985). In light of the above, we cannot say that the circuit court committed any reversible error. This case is due to be affirmed. The foregoing opinion was prepared by Retired Appellate Judge RICHARD L. HOLMES while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court. AFFIRMED. All the Judges concur.