author: HARWOOD, Justice.

text:
    Horace HITT et al. v. STATE OF ALABAMA PERSONNEL BOARD et al.
    1020498.
    Supreme Court of Alabama.
    May 30, 2003.
    Rehearing Denied Aug. 15, 2003.

      Alvin T. Prestwood of Prestwood, Lewis & Dickey, L.L.C., Montgomery, for appellants.
    Alice Ann Byrne, State Personnel Department, for appellees State Personnel Board and Tommy Flowers.
   HARWOOD, Justice.

Horace Hitt, Robert McCain, and Gene Gentry, all former division chiefs in the Alabama Department of Revenue (“the ADR”), appeal from an order of the Circuit Court of Montgomery County entered on May 1, 2002, denying their postjudgment motion. Hitt, McCain, and Gentry had been belatedly joined, on motion of a defendant, as additional plaintiffs to an action filed by Eugene Akers and Charlie Lassi-ter, both of whom are former division chiefs of the ADR. Akers and Lassiter originally filed a petition with the State Personnel Board (“the Board”) seeking relief comparable to that awarded the plaintiffs in Brashears v. State Personnel Board, CV-90-58 (Montgomery Circuit Court September 16, 1993), aff'd, State Personnel Board v. Brashears, 659 So.2d 617 (Ala.Civ.App.1994), and a determination that the holding in Brashears was applicable to them. After the Board declined to act on the petition and on an application for rehearing, Akers and Lassi-ter sought judicial review of the Board’s decision and a declaratory judgment in the Circuit Court of Montgomery County. The respondents in the case were the Board, the State personnel director, members of the Board, the ADR, and the commissioner of the ADR (hereinafter collectively referred to as “the State”). The Board moved to join as plaintiffs all other individuals who had petitioned or written letters to it asserting similar claims, including Hitt, McCain, and Gentry (hereinafter all such claimants are collectively referred to as “the Employees”). The trial court granted that motion, and Hitt, McCain, and Gentry became plaintiffs. After the State and the Employees, respectively, filed motions for a summary judgment, the court on October 30, 1997, granted the Employees’ summary-judgment motion and stated, in pertinent part, the following:

“1. [The State is] ordered and enjoined to take all steps necessary to ensure that all [the Employees] are paid all back pay and back retirement benefits, with interest, to which they were entitled and which they have not received due to their not being placed on Pay Grade or Range 84, Step 18 on May 26, 1982 or the date which they became such Division (or Acting Division) Chief, whichever is later, and adjusted effective November 2, 1988 as the said Brashears plaintiffs pay was adjusted, if such date is applicable to the respective [Employee]. Such back pay shall include adjustments to take into account the merit raises, step increases, and promotions received by the respective [Employee]. “2. It is the intent of this Order that the [Employees] receive the benefits of the Brashears cases cited above and that their present pay and/or retirement benefits be adjusted to be at the level that such pay and retirement benefits would have been if the [Employees] had been placed on the Pay Grade or Range and Step as ordered herein. The [State is] ordered and enjoined to take all necessary steps to put each [Employee] at such pay grade or range, or receive such retirement benefits, consistent with this Order.”

(Emphasis added.) The State appealed to this Court, and on October 16, 1998, this Court affirmed the trial court’s summary judgment for the Employees, without an opinion. Alabama Dep’t of Revenue v. Akers (No. 1970478), 745 So.2d 310 (Ala.1998) (“Akers I”).

Part of the convoluted procedural history of this case was explained by this Court in its opinion on the subsequent appeal in State Personnel Board v. Akers, 797 So.2d 422, 423-24 (Ala.2000) (“Akers II”), in which this Court noted that after our affir-mance in Akers I

“[t]he State paid the Employees back-pay and back retirement benefits, but did not pay prejudgment interest. On January 8, 1999, the Employees moved to have the defendants held in contempt and to enforce the trial court’s October 30, 1997, judgment[] The Employees asserted that the trial court’s October 30, 1997, judgment required the State to pay them prejudgment interest on the award of backpay. The State argued that the trial court’s judgment did not order the State to pay the Employees prejudgment interest, but, instead, ordered the State to adjust the Employees’ backpay to that ordered in Brash-ears, and that the State had fully complied with the trial court’s October 30, 1997, judgment. On September 27, 1999, the trial court denied the Employees’ January 8, 1999, motion and entered the- following order purporting to clarify its October 30, 1997, judgment:
“ ‘[The Employees] contend that this Court’s [October 30, 1997,] order required that the back pay award be “calculated” in exactly the same way as done in the Brashears v. Alabama State Personnel Board case. Contrary to [the Employees’] assertions, neither this Court’s [October 30, 1997,] order, nor the Court’s order in Brashears required that “pre-judgment interest” be paid to the [Employees.] The order issued in the Brashears case did not address “prejudgment interest.” ’
“The trial court further held (1) that the Employees were not entitled to prejudgment interest under Ala.Code 1975, § 8-8-8, because, it concluded, their action was not based on a contract theory, and (2) that the State had fully complied with the October 30, 1997, judgment.
“The Employees filed a motion asking the court to alter, amend, or vacate its September 27, 1999, order. On January 25, 2000, the court granted that motion, holding that under § 8-8-8 the Employees were entitled to prejudgment interest on the backpay award.”

The trial court’s January 25, 2000, order specifically stated, in part:

“2. The [State is] ordered and directed to calculate and to pay each [Employee] interest on the back pay due to each such [Employee] which interest shall be calculated as follows:
“A. Interest at the rate of 6% per annum on all such back pay earned prior to the date of this Court’s Order dated October 30,1997.
“B. Interest at the rate of 12% per annum on the amount of such back pay and interest as computed in accordance with paragraph 2A above.”

The State appealed, and this Court on December 29, 2000, in Akers II “reverse[d] the trial court’s order awarding the Employees prejudgment interest,”' stating, in part:

“The Employees were not entitled to an award of prejudgment interest under AIa.Code 1975, § 8-8-8. Because the Employees were not entitled to prejudgment interest, we will presume that the trial court meant only postjudgment interest when it used the term ‘with interest’ in its October 30, 1997, judgment.”

797 So.2d at 425. On February 27, 2002, the trial court entered an order based on its understanding of the import of Akers II, dismissing all claims.

On March 28, 2002, Hitt, McCain, and Gentry filed a motion they entitled a “Motion to Alter, Amend, or Vacate Judgment Under Rule 59(e), AIa.R.Civ.P., or, Alternatively for Relief Under Rule 60(a) or (b), or for an Interpretation or Enforcement of the Rights of the Movants Under the Court’s Judgment.” On May 1, 2002, after oral arguments and a review of the pleadings, the trial court denied their motion, explaining its reasoning as follows:

“A Final Order was entered in this case on the claims of Horace Hitt, Robert McCain, and Gene Gentry on January 25, 2000. No issue was subsequently brought before this Court or on appeal concerning the individualized claims contained in the Rule 59(e) Motion of these Petitioners. The Alabama Supreme Court heard the issues presented on appeal and directed that judgment be entered in favor of [the State] on the issue of pre-judgment interest.... This Court finds insufficient cause for altering or amending the judgment entered in this case [on February 27, 2002] and the Motion under Rule 59(e) is denied.
“Alternatively, [Hitt, McCain, and Gentry] request relief from the judgment under Rule 60(a) or (b). No adequate grounds are cited by [Hitt, McCain, and Gentry] which would support relief from judgment under Rule 60(a) or (b) and the Court finds no evidence contained in the record to alter its judgment.
“Finally, [Hitt, McCain, and Gentry] make an additional alternative request for this Court to interpret or enforce its prior judgment. A certificate of judgment was entered by the Alabama Supreme Court on May 30, 2001 in favor of [the State]. In accordance with the Alabama Supreme Court’s Order, this Court subsequently entered an Order finding in favor of [the State]. No further interpretation or enforcement is necessary.
“This Court, having reviewed the pleadings in this case, and having the benefit of oral argument hereby ORDERS that the Petitioners’ Motion to Alter, Amend or Vacate the Judgment under 59(e), Ala.R.Civ.P., or Alternatively for Relief under Rule 60(a) or (b) or for an interpretation or enforcement of its prior order is hereby DENIED.”

(Capitalization original.)

Hitt, McCain, and Gentry filed a notice of appeal on June 7, 2002. On appeal, they argue (1) that the trial court erred in failing to grant their Rule 59(e), Ala.R.Civ. P., motion; (2) that the trial court erred in failing to grant their Rule 60(a) and 60(b), Ala.R.Civ.P., motions; and (3) that the trial court erred in not granting their motion to interpret or enforce its judgments.

Our standard of review for rulings on postjudgment motions is well settled:

“In general, whether to grant or to deny a posttrial motion is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless by its ruling the court abused some legal right and the record plainly shows that the trial court erred. See Green Tree Acceptance, Inc. v. Standridge, 565 So.2d 38 (Ala.1990).”

Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala.2000); see also Guillot v. State, 543 So.2d 695, 696 (Ala.1989) (“The review of a denial of a Rule 59(e), Ala. R.Civ.P., motion to alter, amend, or vacate a judgment is ‘limited to whether the trial court abused its discretion.’ Lockhart v. Phenix City Investment Co., 488 So.2d 1353, 1354 (Ala.1986).”); Antepenko v. Antepenko, 584 So.2d 836, 838 (Ala.Civ.App.1991) (“The trial court has wide discretion in making a determination to grant or deny [a Rule 60(a), Ala.R.Civ.P.,] motion, and its determination will not be reversed ... absent a clear abuse of discretion. Shipe v. Shipe, 477 So.2d 430 (Ala.Civ.App.1985).”); Blackmon v. Downey, 624 So.2d 1374, 1376 (Ala.1993) (“ ‘In reviewing the denial of a Rule 60(b)[, Ala.R.Civ.P.,] motion, this Court cannot consider the correctness of the underlying judgment, but is limited to determining whether the trial court abused its discretion in denying the motion.’ ” (quoting Buchanan v. Collier, 571 So.2d 1068, 1069 (Ala.1990))).

In 1977, the Alabama Legislature enacted a statute codified at Ala.Code 1975, § 40-2-24, which provided: “The persons holding the positions in the Department of Revenue known as division chief ... shall be entitled to receive an annual salary-equal to but not exceeding the maximum salary now or hereafter fixed for the position of attorney III supervisor.” At the time that section was enacted, the position of attorney III supervisor was the highest paid attorney classification in the state merit system. In 1979, the classification of attorney IV was established and has since been the highest paid attorney classification in the state merit system. Between 1979 and 1982, the positions of both attorney III supervisor and attorney IV existed, and the pay grade of division chiefs of the ADR was commensurate with the pay grade of the position of attorney III supervisor.

On May 26, 1982, a new “State Classification and Pay Plan” was adopted. The new plan eliminated the position of attorney III supervisor and placed the merit-system jobs held by division chiefs of the ADR into a new pay grade. The new plan set the pay grade of division chiefs at pay grade 87, which was three pay grades above that of the highest attorney III position. Under the May 1982 reclassification plan, which is still effective, the attorney positions in the state are attorney I, attorney II, attorney III, and attorney IV. In November 1988, the pay grade for an attorney IV was increased. After this pay-grade increase, various people holding the title of division chief of the ADR (“the Brashears petitioners”) petitioned the Board, arguing that the division chief position should also be increased to the same pay grade as attorney IV because, they argued, the Legislature had stated its intent in § 40-2-24 that the pay grade of ADR division chiefs be equal to that of the highest pay grade for an attorney working for the State. The division chiefs also asserted that they were due backpay because, they argued, they should have been paid at the attorney IV pay grade beginning in 1982, when the new pay plan was adopted. After the Board denied the petition, the Brashears petitioners appealed to the Circuit Court of Montgomery County, and on September 16, 1993, a final order was entered that granted the Brashears petitioners backpay and a new pay rate (see note 1, supra).

Although Hitt and McCain participated with the Brashears petitioners in the original proceedings before the Board, they were not parties to the ensuing circuit court action. According to Hitt and McCain, even though they knew they were “potential plaintiffs,” they did not participate in the Brashears litigation because the then revenue commissioner, James M. Sizemore, Jr., assured them that they would be treated the same as the Brash-ears petitioners even if they were not parties to the lawsuit because he considered the Brashears lawsuit to be a class action. After the resolution of Brashears, Hitt and McCain both received backpay, but it was limited by a two-year statutory limitations period; they received backpay for only the two-year period from April 17, 1993, to April 17, 1995. The Brashears petitioners, on the other hand, had received back-pay from May 26, 1982, the date the new pay plan was adopted, forward. Hitt and McCain petitioned the Board for an additional award of backpay, in accordance with the circuit court’s opinion in Bra shears, i.e., they sought backpay from May 26, 1982, through April 16, 1993. In August 1995, the then State personnel director, Halycon Ballard, wrote a letter to then revenue commissioner, Ralph Eager-ton. In the letter Ballard stated, “I am recommending to the Board that Division Chiefs Hitt and McCain be awarded back-pay in the same fashion as the other Division Chiefs enumerated in Section 40-2-24.”

Hitt and McCain state in their brief to this Court that they were finally compensated for their full backpay following the October 30, 1997, order of the trial court, but they received postjudgment interest from only the date of that order, and not from the date of the trial court’s order that was affirmed in Brashears, i.e., September 16, 1993. Thus, Hitt and McCain, in their postjudgment motion, sought to recover interest on their respective compensation awards calculated from September 16, 1993, rather than October 30,1997.

Gentry served in two different division chief positions with the ADR from February 1982 until February 1988, when he was promoted to the position of assistant commissioner. Gentry also received backpay and postjudgment interest under the October 30, 1997, order, but, according to him, although the amount due him was preliminarily calculated by the chief fiscal officer of the ADR at $35,187.30, it was finally calculated to be only $28,701. He attributed this difference to the fact that his backpay should have been calculated to include the period after his promotion to assistant commissioner, because, he says, his pay in that position was originally set too low, because his pay as assistant commissioner was determined based on his incorrect lower rate of pay as a division chief.

Hitt, McCain, and Gentry asserted in their motion that they were entitled to relief from the trial court’s February 27, 2002, order, under, among other procedural rules, Rule 59(e), Ala.R.Civ.P., which provides that “[a] motion to alter, amend, or vacate the judgment shall be filed not later than thirty (30) days after entry of the judgment.” In Ex parte Employers National Insurance Co., 539 So.2d 233, 237 (Ala.1989), this Court stated:

“In Lockhart v. Phenix City In[v]. Co., 488 So.2d 1353 (Ala.1986), we found that abuse of discretion by the trial court in granting a Rule 59(e), A[la]. R.Civ.P., motion to alter, amend, or vacate can be found only where a legal right is abused and where the record clearly shows the trial court to be in error. Of course, the corollary, that the denial of such a motion is abuse of discretion, would require the same showing of a legal right and a record that clearly demonstrates error.”

The February 27, 2002, order that Hitt, McCain, and Gentry asked the trial court to alter, amend, or vacate addressed only the issue of prejudgment interest. In that order, the trial court merely proceeded pursuant to this Court’s opinion and mandate in Akers II, which precluded the Employees from receiving prejudgment interest as the trial court’s January 25, 2000, order had directed.

However, the issues Hitt, McCain, and Gentry asserted in their Rule 59(e) motion did not pertain to prejudgment interest; rather, Hitt and McCain contended that they were entitled to additional postjudgment interest and Gentry argued that his backpay had been incorrectly calculated. This Court in Akers II stated: “The trial court [in its January 25, 2000, order] ordered the State to pay prejudgment interest at the rate of 6% per year ‘on all ... backpay earned prior to’ the trial court’s October 30, 1997, judgment.” 797 So.2d at 424. As set forth above, this feature of the trial court’s order was labeled paragraph 2.A., and paragraph 2.B. of the order stated that interest at the rate of 12% per year should be paid “on the amount of such backpay and interest as computed in accordance with paragraph 2A.” We take note that Ala.Code 1975, § 8-8-10, states, in part: “Judgments for the payment of money, other than costs, if based upon a contract action, bear interest from the day of the cause of action, at the same rate of interest as stated in said contract; all other judgments shall bear interest at the rate of 12 percent per annum .... ” (Emphasis supplied.) Because the trial court stated that all backpay earned prior to October 30, 1997, was subject to interest at the rate of 6%, it obviously considered all such interest to be prejudgment interest; paragraph 2.B., by contrast, clearly refers to post-judgment interest, to be calculated at 12%, and it is implicit in that paragraph that the postjudgment interest was to be calculated from October 30,1997, forward. When the State took its appeal in Akers II challenging the aspect of the trial court’s January 25, 2000, order granting the Employees prejudgment interest (paragraph 2.A.), the Employees (Hitt, McCain, and Gentry included) did not cross-appeal on the issue of the start date for the calculation of post-judgment interest. “ ‘In cases where an appeal is taken with respect to only a particular issue or issues, there can be no retrial after remand of issues previously tried and determined but not appealed from. Sewell Dairy Supply Co. v. Taylor, 113 Ga.App. 729, 149 S.E.2d 540 (1966).... ” Eskridge v. Allstate Ins. Co., 855 So.2d 469, 472 (Ala.2003) (quoting Ex parte Army Aviation Ctr. Fed. Credit Union, 477 So.2d 379, 380-81 (Ala.1985)). Failure of a party to take a cross-appeal as to an adverse aspect of the judgment appealed, but not included as an issue on appeal by the appellant, will, under circumstances such as those presented here, foreclose appellate consideration of the aspect of the judgment as to which no appeal was taken. See Cavalier Mfg., Inc. v. Clarke, 862 So.2d 634, 643 (Ala.2003).

In their March 28, 2002, motion to the trial court, Hitt, McCain, and Gentry stated, in pertinent part;

“8. The various decisions of the Court have not been clarified as to the rights of Hitt and McCain to the same post judgment calculations that were applied to the plaintiffs in the Brashears case. “9. As to the Movant Gentry, his back-pay was calculated by the Revenue Department Chief Fiscal officer at $35,187.30, but he was only paid $28,-701.00, and this calculation needs to be reevaluated in order to assure that Gentry was adequately compensated under the Court’s [orders] consistent with amounts awarded to other parties hereto.”

These assertions did not relate to the trial court’s prejudgment-interest order. Hitt, McCain, and Gentry were in actuality asking the trial court to alter, amend, or vacate an earlier order, the January 25, 2000, order, but a motion proceeding under the auspices of Rule 59(e) must be filed within 30 days of the order the movant seeks to have altered, amended, or vacated. Further, they waived their right to challenge this issue by not cross-appealing as to it in Akers II. Accordingly, we find that the trial court did not exceed its discretion in denying the Rule 59(e) motion.

Hitt, McCain, and Gentry also argued in their motion that they were entitled to relief from the trial court’s February 27, 2002, order pursuant to Rule 60(a) and Rule 60(b), Ala.R.Civ.P.; in their brief to this Court, they identify Rule 60(b)(1) as the subsection of 60(b) pertinent to their claim. Rule 60(a) provides:

“Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court. Whenever necessary a transcript of the record as corrected may be certified to the appellate court in response to a writ of certiorari or like writ.”

Rule 60(b)(1), Ala.R.Civ.P., states, in pertinent part: “On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect....” Any motion filed pursuant to Rule 60(b)(1) must be filed within four months of the date the judgment from which the movant is appealing was entered.

In support of their Rule 60(a) and (b)(1) grounds, Hitt, McCain, and Gentry presented to the trial court the same argument they had made in support of their of Rule 59(e) motion, stating:

“The Movants pray for the Court to provide interpretation upon its final judgment that will provide the relief of treating the Movants Hitt and McCain the same, for post-judgment interest purposes, as were the Plaintiffs in the Brashears case. The Movants further pray for the relief that will ... correct any errors in the calculations of [Gentry’s] back-pay decision.”

These statements did not identify or implicate any clerical mistake in the trial court’s prejudgment-interest order. Hitt, McCain, and Gentry also did not assert any circumstances that demonstrated a proper basis for relief due to “mistake, inadvertence, surprise, or excusable neglect.” Therefore, we conclude that the trial court did not exceed its discretion in denying Hitt, McCain, and Gentry relief under Rule 60(a) and (b)(1).

Finally, Hitt, McCain, and Gentry contend that the trial court erred in not granting their motion requesting that the trial court interpret or enforce its October 30, 1997, January 25, 2000, and February 27, 2002, orders so as to require that Hitt and McCain be paid postjudgment interest calculated from September 16, 1993, and that Gentry’s backpay be recalculated. As noted, the trial court stated that “no further interpretation or enforcement is necessary” and that it had entered its February 27, 2002, order in accordance with this Court’s decision in Akers II. Hitt, McCain, and Gentry all received backpay, a recalculation of their retirement benefits, and postjudgment interest from the date of the October 30, 1997, order. They were not parties to the Brashears litigation and did not have a judgment in their favor in that separate case until October 30, 1997. In Akers II this Court found that the Employees, including Hitt and McCain, were not entitled to prejudgment interest, and the trial court entered an order in accordance with that opinion; therefore, any interest Hitt and McCain claim they are entitled to before the date of their judgment in this case, October 30, 1997, would, as applied to them, be prejudgment interest. Also, the trial court’s January 25, 2000, order stipulated that both prejudgment and postjudgment interest would be paid to the Employees, and Hitt and McCain state in their brief that “the full backpay to which [they] were entitled was paid pursuant to the trial court’s order of October 30, 1997, but post-judgment interest was only paid from that date.” Thus, when the trial judge entered the February 27, 2002, order, he knew that the Employees had already received postjudgment interest in accordance with his January 25, 2000, order, and that the only issue addressed in Akers II was prejudgment interest. Therefore, there was nothing else for the trial court to enforce when it dismissed the January 25, 2000, order; paragraph 2.B. had been complied with and this Court reversed only the trial court’s holding in paragraph 2.A.

In the Employees’ January 8, 1999, motion for contempt and to enforce the October 30, 1997, judgment, their principal contention was that the State had not paid them prejudgment interest and had limited their postjudgment-interest award. Only in passing was the alleged discrepancy in Gentry’s award of backpay raised; the motion stated that subsequent to the affirmance in Akers II the State “unilaterally made a decision that the [State] would not pay the [Employees] any prejudgment interest and that any postjudgment interest would be severely limited and recomputed the pay of Gene Gentry .... ” (Emphasis supplied.) In its response to the Employees’ January 8, 1999, motion, the trial court entered an order on September 27, 1999, which addressed only the issue of prejudgment interest. The Employees, in their motion to alter, amend, or vacate the September 27, 1999, order, did not raise the issue of the discrepancy in the calculation of Gentry’s backpay. In response to their motion, the trial court entered an order on January 25, 2000, which granted the Employees prejudgment interest on all backpay earned before October 30, 1997, and postjudgment interest on all backpay earned after October 30, 1997, but did not grant Gentry any relief. The State appealed the trial court’s award of prejudgment interest to the Employees, but Gentry took no cross-appeal, and this Court in Akers II reversed only as to the order awarding the prejudgment interest. The trial court then, on February 27, 2002, entered an order pursuant to the sole issue raised in Akers II. Gentry’s claim that he did not receive the correct amount of back-pay was mentioned again, however, in Hitt, McCain, and Gentry’s March 28, 2002, joint motion to alter, amend, or vacate the February 27, 2002, order. The trial court reviewed the pleadings and heard oral argument (which is not transcribed in the record) and found that no alteration, amendment, vacation, interpretation, or enforcement of its order was necessary. Accordingly, the issue of the calculation of Gentry’s backpay had been presented to the trial court before the March 28, 2002, motion and was implicitly rejected by it, with an intervening appeal in which Gentry did not pursue the issue. We cannot say that the trial court exceeded its discretion by refusing to revisit that issue in response to the March 28, 2002, motion.

For the foregoing reasons, the trial court’s denial of Hitt, McCain, and Gentry’s postjudgment motion seeking relief from the trial court’s February 27, 2002, judgment is due to be affirmed.

AFFIRMED.

MOORE, C.J., and SEE, BROWN, and STUART, JJ., concur.

      . Brashears involved a dispute as to the "pay grade” in which ADR division chiefs should be placed. In its order in that case, the trial court required, in pertinent part:
      "That the Respondents [the Board, its director, chairman, and various members] take all steps necessary to place the Petitioners [persons serving or who had served as division chiefs with the ADR since May 26, 1982,] at the maximum Pay Grade or Range Level which is three (3) Pay Grades or Ranges higher than that of the Attorney III position; said Pay Grade or Range presently is 87, which is three (3) Pay Grades or Ranges higher than the present Pay Grade or Range for Attorney III.
      “That the pay of the Petitioners shall, for so long as they are employed in their present positions, continue in the future to be placed at the maximum pay for a Grade or Range which is three (3) Pay Grades or Ranges above that of Attorney III, whether the Pay Grade or Range for Attorney III remains at Pay Grade or Range 84 or is changed to some other Pay Grade or Range.
      "The Respondents are ordered and enjoined to request of the State Commissioner of Revenue and the State Comptroller that the Petitioners be paid back pay, for the period of time they have been employed in their present positions, at the rate of the maximum for Pay Grade or Range 84 from May 26, 1982, until November 2, 1988, and at the maximum for Pay Grade or Range 87 since November 3, 1988, to the date of payment.”

      . In support of this motion, the Employees, on January 25, 1999, filed a brief detailing “why [the State] must abide by the final order of [the trial] court.”

      . Although the record of Akers II is not a part of the record in the present appeal, " '[t]his court takes judicial notice or has judicial knowledge of contents of its records with reference to its previous consideration of litigation presently before it. Federal Deposit Ins. Corp. v. Equitable Life Assur. Soc. of the United States, 289 Ala. 192, 194, 266 So.2d 752, 753 (1972).” Morrow v. Gibson, 827 So.2d 756, 762 (Ala.2002).

      . The order was signed on February 26, 2002, but was not filed with the court clerk until February 27. Hitt, McCain, and Gentry, in their brief, refer to this order as having been entered on February 26, 2002.

      . This Code section was repealed in 1996 by Act No. 96-494, Ala. Acts 1996.

      . According to the Board, Hitt and McCain received backpay for only a two-year period because Ala.Code 1975, § 6-2-38(m), mandates that "[a]ll actions for the recovery of wages, overtime, damages, fees, or penalties accruing under laws respecting the payment of wages, overtime, damages, fees, and penalties must be brought within two years.”

      . The significance of the April 17, 1995, date is unclear from the record.

      . In their March 28, 2002, motion, Hitt, McCain, and Gently asserted to the trial court that they were seeking relief from its February 27, 2002, order, and in the "Statement of the Case” section of their brief to this Court they state that they are "seeking to review the judgment ... entered on February 2[7], 2002, ... and the order of that Court entered on May 1, 2002, denying [their] motion to alter, amend, or vacate that judgment.” However, in the argument section of their brief they state: "This appeal only includes the issue of whether the trial court was obligated to resolve a dispute.... The order in question was entered on October 30, 1997....” We will consider only the February 27, 2002, order in reviewing the denials of the Rule 59(e), Rule 60(a), and Rule 60(b) motions because that is the only order the movants asked the trial court to reconsider. "Our review is limited to the issues that were before the trial court — an issue raised on appeal must have first been presented to and ruled on by the trial court.” Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala.1992).

      . Ala.Code 1975, § 8-8-1, states: “Except as otherwise provided by law, the maximum rate of interest upon the loan or forbearance of money, goods, or things in action, except by written contract is $6 upon $100 for one year....”


source: Caselaw Access Project

author: BROWN, Justice. HARWOOD, Justice

license: Public Domain

text:
    BOWDOIN SQUARE, L.L.C. v. WINN-DIXIE MONTGOMERY, INC., and Winn-Dixie Stores, Inc.
    1011661.
    Supreme Court of Alabama.
    June 6, 2003.
    Rehearing Denied Aug. 15, 2003.

      Stewart M. Cox and F. Wendell Allen of Bradley Arant Rose & White, LLP, Birmingham; and James C. Johnston of Johnston, Druhan, LLP, Mobile, for appellant.
    Norton W. Brooker, Jr., Walter M. Cook, Jr., and William E. Shreve, Jr., of Lyons, Pipes & Cook, P.C., Mobile, for appellees.
   BROWN, Justice.

The plaintiff, Bowdoin Square, L.L.C., appeals the trial court’s judgment entered on a jury verdict in favor of the defendants, Winn-Dixie Montgomery, Inc., and Winn-Dixie Stores, Inc. (hereinafter referred to collectively as “Winn-Dixie”). We reverse and remand.

Facts and Procedural History

This action arises from a lease dispute between the landlord, Bowdoin Square, and the tenant, Winn-Dixie, concerning a shopping center development in Saraland.

In the 1980s, David H. Head developed the Saraland Square Shopping Center (“the shopping center”). A Wal-Mart discount department store, occupying approximately 90,000 square feet, and a Winn-Dixie grocery store, occupying approximately 35,000 square feet, were to be the “anchor” stores of the shopping center. In addition to the Wal-Mart store and the Winn-Dixie store, the shopping center included an area for smaller shops, plus a 6,000-square-foot retail space between the Wal-Mart and Winn-Dixie buildings.

Head sold Wal-Mart that portion of the shopping center development where Wal-Mart later built its store (“the Wal-Mart tract”) and retained ownership of the rest of the development, which included the space he leased to Winn-Dixie and to other tenants (“the Winn-Dixie tract”). As co-owners of the shopping center, Head and Wal-Mart entered into an agreement entitled “Easements with Covenants and Restrictions Affecting Land” (“the ECR”). The ECR stated that Head’s and Wal-Mart’s properties were “to be developed in conjunction with each other pursuant to a general plan of improvement to form a commercial shopping center.” Furthermore, the ECR restricted the use of the buildings in the shopping center to “commercial purposes of the type normally found in a retail shopping center including, without limitation, financial institutions, service shops, offices, and retail stores.”

In addition, Head entered into a 20-year lease with Winn-Dixie. Pursuant to the lease, Winn-Dixie agreed to pay $16,041.67 per month, totaling $192,500 per annum, plus 1% of the gross sales made at the store each fiscal year. In addition, Winn-Dixie agreed to pay a pro rata share of common area maintenance (“CAM”) costs accruing each year.

In 1988, Head sold his part of the shopping center development and assigned the Winn-Dixie lease to Peter Lowe, who subsequently formed Bowdoin Square, L.L.C. Bowdoin Square then acquired all rights and duties under the ECR and became subject to its covenants and restrictions.

In 1996, Wal-Mart closed its store in the shopping center. Wal-Mart’s closing significantly reduced Winn-Dixie’s business and contributed to Winn-Dixie’s closing its store in March 1998. Still bound by the lease, Winn-Dixie continued to pay rent and listed the premises with a realtor in an effort to sublease the building.

In the fall of 1999, Wal-Mart contacted Richard Ogburn, Bowdoin Square’s property manager, and notified him that Wal-Mart was considering leasing its vacant store to Hertz Corporation (“Hertz”), an automobile rental agency, to be used as a “call center,” at which employees would receive telephone reservations for rental cars. In addition, Hertz had requested that Bowdoin Square lease Hertz the 6,000 square-foot area between the Wal-Mart and the Winn-Dixie buildings to be used for interviewing job applicants and as a training area for new employees.

In light of the restrictions in the ECR that the shopping center be used for “commercial purposes of the type normally found in a retail shopping center,” Hertz and Wal-Mart requested that Bowdoin Square consent to amending the ECR to specifically list the Hertz call center as a permitted use and to delete the phrase that limited the uses to those “normally” found in a retail shopping center.

Bowdoin Square advised Hertz and Wal-Mart that, pursuant to Winn-Dixie’s lease, Winn-Dixie’s consent was necessary before the ECR could be amended. Additionally, the lease between Bowdoin Square and Winn-Dixie limited the use of that part of the shopping center owned by Bowdoin Square to “retail and/or service stores”; the only exception to this restriction was that “2,800 square feet ... [of] the 11,200 square feet of local shops” located elsewhere on the shopping center property could be used as “business or professional offices”; thus, Bowdoin Square was also required to obtain Winn-Dixie’s consent before it could lease the 6,000-square-foot space to Hertz.

In November 1999, Ogburn contacted Winn-Dixie to request its consent to the proposed amendment to the ECR and permission to lease the 6,000-square-foot space to Hertz. After determining that Hertz’s proposed use of the Wal-Mart building and the 6,000-square-foot space would not be in its best interest, Winn-Dixie refused to consent to the amendment of the ECR. Winn-Dixie believed that using the property in the manner Bowdoin Square proposed would hamper its efforts to sublease its building as a retail store and that the proposed use would have a detrimental effect on parking spaces available for potential customers of a retail store. Thus, Bowdoin Square notified Wal-Mart that Wal-Mart could not amend the ECR or lease Hertz the 6,000-square-foot space.

On December 3, 1999, before Winn-Dix-ie had refused to consent to the amendment, Hertz contacted Ogburn and obtained keys to the 6,000-square-foot space to obtain a price quote for having carpet installed. Ogburn testified that around the first part of January 2000, he discovered that Hertz was “building out” the 6,000-square-foot area without Bowdoin Square’s permission. Ogburn wrote Hertz a letter noting that Bowdoin Square’s agreement to lease the space was “contingent to Bowdoin Square receiving approval from Winn-Dixie to lease this space for a non-retail use” and that Bowdoin Square, so far, had been unsuccessful in obtaining that approval. However, because Hertz had already completed so much work, Og-burn also indicated in the letter that Hertz could continue with the build-out at its own risk, but that it would have to vacate the premises if Winn-Dixie did not approve of the nonretail use of the space. Furthermore, Ogburn stated that “[Bowdoin Square could not] do anything to jeopardize its lease with Winn-Dixie.” Hertz proceeded with renovating the 6,000-square-foot space and subsequently used it for a short time to interview job applicants and to train new employees. Hertz paid Bow-doin Square three months’ rent for the space, which Bowdoin Square gave to its attorney with instructions that the amount be held in escrow.

On December 24, 1999, Hertz began leasing the Wal-Mart building; it opened the call center in March 2000. The call center was equipped to accommodate up to 623 agents working at a single time and was open from 6 a.m. to 2:30 a.m. The number of employees at the call center since its opening has ranged from 400 to 600 people working multiple shifts. During this time, Winn-Dixie voiced no concern about the decision by Wal-Mart to allow Hertz to open the call center.

On March 8, 2000, Winn-Dixie mailed a letter to Bowdoin Square notifying it that Winn-Dixie believed Bowdoin Square had breached the lease. The letter stated in part:

“According to our information, you have rented a portion of Saraland Square shopping center to Hertz ... and are utilizing a portion of the shopping center for training of employees to be utilized in the Hertz [call center].... This constitutes a breach of our lease....
“We believe that the easements, covenants and restrictions which are subordinate to the Winn-Dixie lease have also been modified, either formally or informally, which we maintain is an additional breach of the lease.
“... Winn-Dixie is of the opinion that the leasing of 6,000 square feet of space in the Saraland Square shopping center to Hertz is a violation of the lease agreement because the use is not of a commercial purpose of the type normally found in a retail shopping center and does not constitute a financial institution, service shop, office or retail store.
“In addition, your formal or informal modification of the ECR violates the terms thereof and also violates the terms of the Winn-Dixie lease in that, among other things, the parking area utilized by employees of the Hertz communication center will severely restrict Winn-Dixie’s right (or its sub-lessee’s right) to utilize such parking area. This type of activity is clearly one that was never contemplated in the original lease agreement due to the clear intent of limiting the parking lot to a use which would not constitute the parking of motor vehicles in the parking lot for extended periods of time.
“... [U]ntil such time as the common area and the rental area of the shopping center [are] utilized for [their] intended purpose, [Winn-Dixie] will not pay any rent, common maintenance, taxes, or the like with respect to the [leased] property....”

On April 18, 2000, counsel for Winn-Dixie faxed a letter to the attorney for Bowdoin Square advising the attorney that “the lease ... has terminated as a result of [Bowdoin Square’s] various defaults ... as [of] 12:01 a.m. on April 14, 2000.” However, the letter also stated it was “not an attempt to impact either Wal-Mart or Hertz.”

Thereafter, on April 21, 2000, in response to Winn-Dixie’s purported termination of the lease and its abandonment of the premises, Bowdoin Square sued Winn-Dixie seeking to recover the amounts due under the remainder of the term of the lease, including all remaining rent, CAM costs, and all other sums due to be paid under the lease. In response, Winn-Dixie filed a counterclaim alleging that Bowdoin Square had materially breached the terms of the lease agreement and that, therefore, Winn-Dixie had the right to terminate the lease.

The case was tried before a jury. At the close of evidence, Bowdoin Square moved for a judgment as a matter of law (“JML”), claiming that it had demonstrated that Winn-Dixie had wrongfully terminated the lease and had abandoned the premises. The trial court denied this motion. However, the trial court did grant in part a motion for a JML filed by Winn-Dixie, holding that the Hertz call center was a violation of the ECR “use agreement” between Bowdoin Square and Wal-Mart. Furthermore, the trial court held that, although the call center was not a breach of the lease between Winn-Dixie and Bowdoin Square, Bowdoin Square had a duty to challenge, on behalf of Winn Dixie, Wal-Mart’s decision to lease the building to Hertz. Finally, the trial court held that Bowdoin Square’s right to relief for Winn-Dixie’s alleged breach of the lease was limited under paragraph 21 of the lease, the “tenant default provision.”

The trial court then charged the jury that it should decide the following factual issues: (1) whether Bowdoin Square’s failure to challenge Wal-Mart’s lease of its property for the Hertz call center amounted to a material breach of Bowdoin Square’s lease with Winn-Dixie; (2) whether Bowdoin Square’s failure to prevent the use of the 6,000-square-foot space as part of the Hertz call center was a breach of Winn-Dixie’s right to the quiet enjoyment of the leased property, and, if so, whether it amounted to a material breach of the lease agreement; (3) whether Bowdoin Square’s failure to protect the parking spaces Winn-Dixie was entitled to under the lease agreement amounted to a material breach of that agreement; and (4) whether Bowdoin Square had complied with paragraph 21 of the lease agreement in attempting to collect from Winn-Dixie missed rent payments. The jury returned a general verdict in favor of the defendant, Winn-Dixie. Bowdoin Square appeals.

Standard of Review

When reviewing a trial court’s ruling on a motion for a JML, we have stated:

“ ‘[T]his Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11,1987, the nonmovant must present “substantial evidence” in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996). Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).’ ”

I.C.U. Investigations, Inc. v. Jones, 780 So.2d 685, 688 (Ala.2000).

Analysis

Bowdoin Square raises a number of issues on appeal. First, Bowdoin Square maintains that the trial court erred in holding that any relief Bowdoin Square might seek against Winn-Dixie was limited by paragraph 21 of the lease agreement. Bowdoin Square further argues that this erroneous holding precluded it from proceeding on its claim that Winn-Dixie had abandoned the premises. Second, Bow-doin Square asserts that the trial court erred in ruling as a matter of law that Hertz’s use of the Wal-Mart tract violated the ECR. Third, Bowdoin Square argues that the trial court erred in denying its motion for a JML based on Winn-Dixie’s failure to present any evidence justifying its terminating the lease. Finally, Bow-doin Square maintains that the trial court erred by denying it the opportunity to pursue future lease payments from Winn-Dixie.

I. Paragraph 21

Bowdoin Square alleges that the trial court erred in limiting Bowdoin Square’s options for relief against Winn-Dixie to only those specified in paragraph 21 of the lease agreement.

Paragraph 21 states as follows:

“DEFAULT 21. In the event the Tenant should fail to pay any of the monthly installments of rent reserved herein for a period of more than ten (10) days after the same shall become due and payable, or if the Tenant shall fail to keep or shall violate any other condition, stipulation or agreement herein contained, on the part of the Tenant to be kept and performed, and if either such failure or violation shall have continued for a period of thirty (30) days after the Tenant shall have received written notice by certified or registered mail at its office ... from the Landlord to pay such rent or to cure such violation or failure, then, in any such event, the Landlord, at its option, may either (a) terminate this lease or (b) re-enter the demised premises by summary proceedings or otherwise expel Tenant and remove all property therefrom and relet the premises at the best possible rent obtainable, making reasonable efforts therefor and receive the rent therefrom, but Tenant shall remain liable for the deficiency, if any, between Tenant’s rent hereunder and the price obtained by Landlord on reletting....”

(Emphasis added.)

A. Whether paragraph 21 limits Bow-doin Square’s relief

Bowdoin Square maintains that paragraph 21 of the lease agreement does not limit its options in seeking relief for Winn-Dixie’s alleged breach. It is well settled that lease agreements are contracts and that the general principles of contract construction apply in ascertaining the scope and meaning of a lease agreement. 49 Am.Jur.2d Landlord & Tenant § 43 (1995). In deciding the rights of the parties under a lease, courts are required to give effect to the unambiguously expressed intent of the parties. Darling Shop of Birmingham v. Nelson Realty Co., 255 Ala. 586, 591, 52 So.2d 211, 215 (1951); see also 49 Am.Jur.2d Landlord & Tenant § 43. Where language used in a lease is plain and unambiguous, there is no room for construction of the contract. Babcock v. Smith, 285 Ala. 557, 562, 234 So.2d 573, 577-78 (1970). Therefore, if a lease is reduced to writing, the court must ascertain from the writing the intention of the parties, and the provisions of the writing are conclusive and govern the rights of the parties. 49 Am. Jur.2d Landlord & Tenant § 53 (1995). Furthermore, the court is required to give the words in the lease their ordinary meaning. Hill v. Talladega College, 502 So.2d 735, 737 (Ala.1987); BõWing Office Sys., Inc. v. Johnson, 744 So.2d 915, 918 (Ala.Civ.App.1999); see also, 49 Am.Jur.2d Landlord & Tenant § 54 (1995).

The pertinent phrase at issue in paragraph 21 provides that upon the tenant’s default, “the Landlord, at its option, may” either terminate the lease or mitigate and seek damages. As Bowdoin Square correctly argues, this Court has long recognized that words such as “may” and “at its option” denote permissive alternatives, not mandatory restrictions. See Rudisill Soil Pipe Co. v. Eastham Soil Pipe & Foundry Co., 210 Ala. 145, 97 So. 219, 221-22 (1923) (lease stipulation that lessee “may, at its option, elect” was not mandatory but permissive stipulation); see also Mobile Eye Ctr., P.C. v. Van Buren P’ship, 826 So.2d 135, 138 (Ala.2002) (renewal provision that stated that the lease “may” be renewed did not operate automatically to renew lease); ANCO TV Cable Co. v. Vista Comm. Ltd. P’ship I, 631 So.2d 860, 863 (Ala.1993) (holding that “may” signified discretion). Therefore, applying the ordinary meaning of the language contained in paragraph 21, we conclude that the lease does not foreclose common-law remedies for Winn-Dix-ie’s default.

Winn-Dixie raises a number of arguments in support of the trial court’s finding that paragraph 21 provided Bowdoin Square the exclusive remedies for Winn-Dixie’s alleged breach. However, we need address only two of Winn-Dixie’s arguments. First, Winn-Dixie claims that the trial court’s reading of the lease is consistent with that of other courts considering similar provisions. Specifically, Winn-Dix-ie relies on two cases from foreign jurisdictions — Linens of Paris, Inc. v. Cymet, 510 So.2d 1021 (Fla.Dist.Ct.App.1987), and Wilson v. Pate, 17 Ariz.App. 461, 498 P.2d 535 (1972). In Linens of Paris, the lease provided that upon the tenant’s breach the landlord could either cancel the lease or attempt to re-let the premises as the tenant’s agent. In Wilson, the lease provided that, upon the tenant’s failure to pay the rent, the “lessor may, at his election, either distrain for said rent due or declare this lease at an end, and recover possession-” In both cases, the courts determined that by executing the leases the parties had modified their common-law rights and set out their remedies specifically under the lease. Therefore, the landlords were limited to only those options specified in the leases.

As discussed above, this Court has long recognized that words such as “may” and “at its option” denote permissive alternatives. Moreover, Linens of Paris and Wilson give virtually no analysis of the meaning of these terms. Therefore, we find that those cases are distinguishable.

Next, Winn-Dixie argues that in giving paragraph 21 its ordinary meaning, the focus should be on the words “either ... or” rather than on the words “may” or “at its option.” Winn-Dixie contends that with the inclusion of “either ...' or” the provision connotes a choice between two alternatives and, giving the provision its ordinary meaning, Bowdoin Square is limited to only those alternatives. We disagree. Because the clause “the Landlord, at its option, may” appears before the specification of the two remedies, we find that the better reading is that the provision simply sets forth the elective rights of Bowdoin Square. See 17A Am.Jur.2d Contracts § 748 (1991) (“Where, however, there is no express or implied limitation in the contract making the stated remedy exclusive, the prevailing view seems to be that a party may at his election pursue either the prescribed remedy or any other remedy the law gives.... ”). Accordingly, we hold that, as a matter of law, paragraph 21 is permissive in nature and allows Bow-doin Square to seek redress outside of the alternative remedies discussed in paragraph 21. Therefore, the trial court erred in holding that paragraph 21 limited Bow-doin Square’s relief for Winn-Dixie’s alleged breach of the lease agreement.

B. Should the issue whether Winn-Dixie had abandoned the premises have been submitted to the jury

Bowdoin Square next argues that, because paragraph 21 does not foreclose its common-law remedies, it has the right to submit to the jury the issue whether Winn-Dixie abandoned the premises. We agree.

The distinction between default and abandonment has previously been recognized in Alabama law. See International Tool & Eng’g Co. v. Sullivan, 389 So.2d 138, 140 (Ala.Civ.App.1980); Locascio v. Barber, 17 Ala.App. 595, 87 So. 703, 704 (1920). The issue whether the lease was terminated by abandonment of the premises is a question of fact. See Ex parte Kaschak, 681 So.2d 197, 200 (Ala.1996). As a general rule, abandonment occurs when the lessee leaves the premises vacant with the avowed intention not to pay rent. tenBraak v. Waffle Shops, Inc., 542 F.2d 919, 924 n. 5 (4th Cir.1976); see also 49 Am.Jur.2d, Landlord & Tenant § 250 (1995). For a lessee’s actions to amount to an abandonment, two elements must be proven: (1) that the lessee vacated the premises and (2) that the lessee had a clear intent not to be bound by the lease. tenBraak, 542 F.2d at 924 n. 5; see also 49 Am.Jur.2d, Landlord & Tenant § 250; Gavin L. Phillips, Annotation, What Constitutes Abandonment of Residential or Commercial Lease — Modern Cases, 84 A.L.R.4th 183, § 2[a] (1991); 51C C.J.S. Landlord & Tenant § 125(2) (1968).

Under Alabama common law, once a lessee abandons a leasehold, the landlord has two remedies. Kaschak, 681 So.2d at 200. The landlord may allow the premises to remain vacant and recover rent for the whole term of the lease, or the landlord may end the lease by accepting the abandoned property and reentering the premises. Kaschak, 681 So.2d at 200; Crestline Ctr. v. Hinton, 567 So.2d 393, 396 (Ala.Civ.App.1990); International Tool, 389 So.2d at 139. Furthermore, the landlord is under no affirmative duty to mitigate any damages arising under a default on a lease agreement by a tenant. Kaschak, 681 So.2d at 200.

In tenBraak v. Waffle Shops, Inc., supra, the lessor, tenBraak, and the lessee, Waffle Shops, Inc., had entered into a 20-year term lease. The lease contained a “tenant default” provision that stated that in the event the lessee failed to pay rent or breached any affirmative covenant in the lease, tenBraak “may” terminate the lease or mitigate and sue the lessee for damages. Waffle Shops subsequently abandoned the premises and tenBraak sued, seeking damages for Waffle Shops’ breach of the lease. At trial, Waffle Shops argued that tenBraak was bound by the tenant-default provision in the lease and could recover damages only as set out under that provision.

In calculating tenBraak’s damages, the court found that the lease contained no provisions specifically addressing the lessor’s recovery upon abandonment of the premises by the lessee. However, the lease did contain a reentry provision, which stated that in the event of default by the tenant in the payment of the rent or upon breach of any affirmative covenant in the lease the lessor, upon meeting certain notice requirements, “may” reenter. Strictly construing the provision, the court found that the provision, by stating that the lessor “may” reenter upon a tenant’s breach, merely created a right of reentry but did not impose a duty upon the lessor to reenter. Therefore, the court held, tenBraak could pursue common-law remedies available to it for a tenant’s abandonment of the leasehold.

We believe that the rationale of tenBr-aak is instructive in this case. As was the case in tenBraak, paragraph 21 of the lease agreement between Bowdoin Square and Winn-Dixie speaks only of Winn-Dix-ie’s failing to pay rent or failing to keep or violating any other condition, stipulation, or agreement contained in the lease. It does not specifically address the procedure to be instituted should Winn-Dixie abandon the premises. As a result, Bowdoin Square “may,” if it so chooses, look to common-law remedies, such as the ones provided in the event of abandonment, for Winn-Dixie’s breach of the lease. Therefore, the trial court erred in not allowing Bowdoin Square to submit the issue of Winn-Dixie’s abandonment of the premises to the jury.

II. Whether Hertz’s “call center” violated the ECR

Bowdoin Square maintains that the trial court erred in finding as a matter of law that, because a call center was not a normal use of the premises at the time the parties entered into the ECR, Hertz’s use of the Wal-Mart building as a call center violated the ECR’s “use” provision. Specifically, Bowdoin Square argues that the “use” provision in the ECR should be construed in a manner that does not unduly bind the parties to an inflexible arrangement. Furthermore, Bowdoin Square asserts that when general terms are used to describe acceptable uses under a lease covenant where more than one construction is possible, the proper construction would be file construction that does not limit the property’s uses.

The ECR “use” provision states:

“2. Use. Buildings in the shopping center shall be used for commercial purposes of the type normally found in a retail shopping center, including, without limitation, financial institutions, service shops, offices, and retail stores.... ”

Bowdoin Square contends that this provision contains no language limiting when the determination of what uses are “normally found in shopping centers” is to be made. Thus, Bowdoin Square maintains, the provision should be read to facilitate uses likely to evolve in the commercial retail market over the term of the ECR. We disagree.

A plain reading of the provision reveals no language limiting the phrase “normally found in a shopping centers” to a certain time period, whether it be 1987, when the lease was entered, or in 2000, when this dispute arose. However, it is well settled that a contract must be construed as of the date on which it was made. Maxwell Planting Co. v. A.P. Loveman & Co., 212 Ala. 228, 232, 102 So. 45, 48 (1924); see also 17A C.J.S. Contracts § 302, at 312 (1999). Furthermore, contracts are to be construed according to the intentions of the parties and in light of the circumstances at the time they were made. Russell v. Garrett, 208 Ala. 92, 95, 93 So. 711, 713 (1922). Contracts “cannot be based upon events occurring subsequent to their execution.” Allright Auto Parks, Inc. v. Berry, 219 Tenn. 280, 288-89, 409 S.W.2d 361, 364 (1966); see also Howell v. Landry, 96 N.C.App. 516, 386 S.E.2d 610, 619 (1989); Piano v. Gulf Coast Inv. Corp., 429 S.W.2d 554, 556 (Tex.Civ.App.1968).

Both parties offered conflicting expert testimony as to whether call centers like the one operated at Saraland Square by Hertz were commonly found in commercial shopping centers at the time this action was instituted. However, the expert witnesses called by both parties testified that in 1987, when the ECR was entered into, call centers, or other comparable facilities, did not exist. Therefore, it is undisputed that at the time Bowdoin Square and Wal-Mart executed the ECR call centers were not a use “normally found in retail shopping centers.” Accordingly, because the ECR must be construed as of the date on which it was made and cannot be based upon actions that occurred subsequent to its execution, the trial court did not err in holding that the Hertz call center was not a contemplated use as described in the ECR.

III. Bowdoin Square’s Motion for a JML

Bowdoin Square argues that the trial court erred in denying its motion for a JML. Specifically, Bowdoin Square contends that, except as provided in the lease agreement itself, Winn-Dixie had no independent right to terminate the lease. Alternatively, Bowdoin Square maintains that, even if Winn-Dixie did have the right to terminate the lease, that termination was not justified by any breach by Bow-doin Square of the covenant of quiet enjoyment or under the doctrine of constructive eviction.

A. Winiu-Dixie’s right to terminate the lease

Bowdoin Square argues that termination of a long-term commercial lease is an extraordinary event; thus, termination should be allowed only in extreme circumstances. Moreover, Bowdoin Square contends that under Alabama law, a tenant is allowed to terminate its lease only under those circumstances set out in the lease. According to Bowdoin Square, the lease agreement in this case allowed termination by Winn-Dixie only under four circumstances. Bowdoin Square argues that Winn-Dixie never attempted to prove that any of those circumstances existed when it purported to terminate the lease; thus, Bowdoin Square asserts, the trial court should have granted its motion for a JML. We disagree.

As a general rule, except to the extent the parties to a lease agree otherwise, if a landlord fails to perform a valid promise contained in the lease, thus depriving the tenant of a significant inducement to the making of the lease, the tenant may attempt to terminate the lease. 49 Am. Jur.2d Landlord & Tenant § 83 (1995); 51C C.J.S. Landlord & Tenant § 113 (2002) (lessor’s breach of an essential covenant entitles the lessee to terminate the lease); see also Health Care Mgmt. Corp. v. Rubenstein, 540 So.2d 77, 78 (Ala.Civ.App.1989) (one party’s material breach excuses the other party from performance); O’Byrne v. Henley, 161 Ala. 620, 50 So. 83 (1909) (a breach of the implied covenant of quiet enjoyment by the lessor authorizes the tenant to terminate the lease and abandon premises). Thus, Winn-Dixie has the right to terminate the lease and vacate the premises, if Bowdoin Square failed to perform an essential covenant.

B. Bowdoin Square’s alleged breaches of the lease agreement

At trial, Winn-Dixie claimed that Bowdoin Square breached the covenant of quiet enjoyment, that it constructively evicted Winn-Dixie from the premises, and that it materially breached the lease agreement. Therefore, Winn-Dixie argues, the trial court correctly denied Bowdoin Square’s motion for a JML. On appeal, Bowdoin Square argues that, even if Winn-Dixie’s allegations were true, termination of a lease cannot be justified by a breach of a covenant of quiet enjoyment or under the doctrine of constructive eviction. We disagree. However, in disagreeing, we hold only that Winn-Dixie may raise these defenses; whether Bowdoin Square’s actions amounted to a breach of Winn-Dix-ie’s quiet enjoyment or a constructive eviction is a jury question to be answered on remand.

First, Bowdoin Square contends that the lease agreement contains an express covenant of quiet enjoyment that does not allow Winn-Dixie to terminate the lease except where new zoning restrictions interfere with its business. We find this argument to be without merit.

The express covenant of quiet enjoyment in the lease states:

“QUIET ENJOYMENT 18. The landlord covenants, warrants and represents that upon commencement of the lease term ... the Tenant on paying the rent herein reserved and performing the covenants and agreements hereof shall peaceably and quietly have, hold and enjoy the demised premises and all rights, easements, appurtenances and privileges belonging or in anywise appertaining thereto, during the full term of this lease....
“The Landlord warrants the non-existence of any zoning or other restriction preventing or restricting use of the demised premises for the conduct of a general mercantile business or use of common areas for parking purposes, and that should such zoning or other restriction be in affect [sic] or adopted at any time during the term of this lease, preventing or restricting Tenant from conducting a general mercantile business or using the common areas ... the Tenant at its option may terminate this lease and shall stand released of and from further liability hereunder.”

(Emphasis added.) Clearly, Winn-Dixie’s right to terminate the lease based on a breach of the covenant of quiet enjoyment is not limited only to the imposition of new zoning restrictions, but also to any restriction that hinders it from “conducting a general mercantile business or using the common areas.” Moreover, the trial court charged the jury that under this express covenant Winn-Dixie had the right to terminate the lease if the jury found that Bowdoin Square failed to uphold its covenant to ensure “that [Winn-Dixie] ... shall peaceably and quietly have, hold and enjoy the demised premises and all rights, easements, appurtenances and privileges belonging ... thereto, during the full term of the lease.... ” Because Bowdoin Square offers no explanation as to how the trial court erred in giving this charge, we find no error as to this issue.

Bowdoin Square also alleges that Winn-Dixie waived the affirmative defense of constructive eviction. However, from our review of the record and the trial transcript, it is apparent that the parties have misconstrued the doctrine of constructive eviction as it exists in Alabama. Specifically, Alabama does not recognize constructive eviction and breach of quiet enjoyment as separate claims. Oliver v. Bush, 125 Ala. 534, 27 So. 923, 924 (1900) (an action for constructive eviction is, in substance and effect, the same as one for a breach of the covenant of quiet enjoyment); see also David C. Skinner, Alabama Residential, Commercial & Mineral Lease Law § 7-7(h) (cum.supp.1999). Rather, Alabama follows the common-law concept that a tenant has a covenant to quiet enjoyment of the premises. Id. Therefore, in Alabama, an action for constructive eviction must be framed as a violation of the covenant of quiet enjoyment. Steele v. McRaney, 855 So.2d 1114, 1121 (Ala.Civ.App.2003) (stating that a party may be responsible for a breach of the covenant of quiet enjoyment by constructively evicting the plaintiff); see also Southern Sec. Servs., Inc. v. Esneault, 435 So.2d 1309, 1312 (Ala.Civ.App.1983) (landlord’s interference with the tenant’s right to quiet enjoyment may constitute a constructive eviction); Skinner, § 7-7(h). As a result, Winn-Dixie’s claim of constructive eviction is, in effect, part of its claim of the breach of the covenant of quiet enjoyment. Therefore, Winn-Dixie did not waive this issue.

IV. Bowdoin Square’s Right to Pursue Future Lease Payments

Finally, Bowdoin Square maintains that the trial court erred in dismissing its claim for future rent. Specifically, Bowdoin Square contends that it is entitled to the total amount of lease payments due under the 20-year lease, regardless of whether the payments had accrued before Winn-Dixie terminated the lease. We disagree.

As Winn-Dixie correctly asserts, Ala.Code 1975, § 6-5-280, provides that if a contract is severable or if the breaches occur at successive periods during the existence of the contract, such as where money is to be paid in installments, an action will lie for each breach. Leases for periodic rent fall within this category. See Nicrosi v. Roswald, 113 Ala. 592, 21 So. 338, 339 (1897); Dawson v. Hay good, 235 Ala. 648, 180 So. 705, 707 (1938). Each failure to pay an installment when due creates a separate cause of action. Old Southern Life Ins. Co. v. Free, 46 Ala.App. 622, 247 So.2d 379, 382 (1971). Because an action may not be maintained before a cause of action has accrued, Freider v. Leinkauff, 92 Ala. 469, 8 So. 758, 759 (1891), a landlord suing for breach of a lease can recover only rent that has accrued and that remains unpaid. Nicrosi, 113 Ala. at 595, 21 So. at 339.

Bowdoin Square cites cases for the proposition that under Alabama law when a tenant abandons its leasehold the landlord may allow the premises to remain vacant and recover rent for the whole term of the lease. McClure v. Daniel, 45 Ala.App. 558, 561-62, 233 So.2d 500, 502 (1970); Locascio v. Barber, 17 Ala.App. 595, 87 So. 703 (1920). These cases are consistent with the above principles. Upon a showing of abandonment of the premises by the tenant, the landlord may recover the whole lease payment, either by suing at the end of the lease term when all of the lease payments have accrued, or it may bring a separate action for each missed payment as it accrues. See Ryals v. Laney, 338 So.2d 413, 415-16 (Ala.Civ.App.1976) (holding that upon abandonment by lessee, landlord was entitled to all accrued rental payments). Furthermore, the lease at issue does not contain an acceleration clause. As a result, we hold that the trial court was correct in not allowing Bowdoin Square’s claim for future rent.

Conclusion

Because we hold that the trial court erred in determining that paragraph 21 of the lease provided Bowdoin Square’s sole remedy against Winn-Dixie, we reverse its judgment and remand the case for a new trial. See Jim Walter Homes, Inc. v. Kendrick, 810 So.2d 645, 651 (Ala.2001) (holding that where one claim is improperly submitted to the jury and the jury returns a general verdict, the judgment entered on that verdict must be reversed and the cause remanded for a new trial even if other claims were properly submitted); see also Larrimore v. DuBose, 827 So.2d 60, 63 (Ala.2001).

REVERSED AND REMANDED.

SEE and STUART, JJ., concur.

MOORE, C.J., concurs in the result.

HARWOOD, J., concurs in part and dissents in part as to the rationale and concurs in the result.

HARWOOD, Justice

(concurring in part and dissenting in part as to the rationale and concurring in the result).

I concur with all aspects of the main opinion except the rationale and holding expressed in the section identified as “I. Paragraph 21 ... A. Whether paragraph 21 limits Bowdoin Square’s relief.” I do not find the operative language in paragraph 21 of the lease, which reads, “In the event the Tenant [should default in certain respects], then, in any such event, the Landlord, at its option, may either (a) terminate this lease or (b) re-enter the demised premises ...,” to be unambiguous. “An ‘instrument is unambiguous if only one reasonable meaning clearly emerges.’ ” Reeves Cedarhurst Dev. Corp. v. First Amfed Corp., 607 So.2d 184, 186 (Ala.1992) (quoting Vainrib v. Downey, 565 So.2d 647, 648 (Ala.Civ.App.1990)). The particular syntax of the clause in question leaves room for more than one reasonable interpretation.

On the one hand, the parties may have intended to convey the meaning that, in the event of a default by the tenant, the landlord could, at its option, exercise the recourses stated as “(a)” and “(b),” or, as a further option, pursue any alternative remedy otherwise available under Alabama law. On the other hand, the parties may have intended by the phrasing to signify that the landlord’s options were limited to the two options expressly stated. The order of the words in question permits the interpretation that the option accorded the landlord was not to choose from among the whole universe of remedies, both specified and nonspecified, but rather to choose either remedy (a) or remedy (b). In that regard, the scope of the option is explained, and limited, by the specification of only two choices, stated in the alternative, of either (a) or (b).

The three prior decisions of this Court relied on by the main opinion do not provide conclusive guidance for our construction of the particular clause at issue. In Rudisill Soil Pipe Co. v. Eastham Soil Pipe & Foundry Co., 210 Ala. 145, 97 So. 219 (1923), the language at issue in the lease contract stated: “As often as profits shall accrue in such amount that, in the judgment of the lessee, the said lessee can spare such funds from its operating capital, the lessee may, at its option, elect that said sums [shall be put to a particular use],” with all such profits “which shall not have been applied [to that use] ... retained. ...” 210 Ala. at 149, 97 So. at 221. This Court simply held that such a combination of permissive language was “not the equivalent of the stipulation that such party must pay.” 210 Ala. at 149, 97 So. at 222. In Mobile Eye Center, P.C. v. Van Buren Partnership, 826 So.2d 135 (Ala.2002), the renewal clause in the lease stated that “[w]ith the mutual consent of the parties this lease may be renewed.... ” 826 So.2d at 136. We construed that phrasing as representing “merely an agreement to agree to a renewal of the lease, which is not enforced in Alabama.” 826 So.2d at 138. Finally, in ANCO TV Cable Co. v. Vista Communications Ltd. Partnership I, 631 So.2d 860 (Ala.1993), the subordinated promissory notes involved specified that under certain delineated scenarios involving any “Senior Indebtedness,” the registered holders of the subordinated notes “may from time to time receive payments” of principal and interest. 631 So.2d at 862. Recognizing that “the term ‘may’ denotes to be able,” the Court concluded that the clause gave the obligor of the notes the right, but not the mandatory duty, to make payments. If the latter situation had been intended, “then we would reasonably expect language that vested in the holders of the notes a right to require payment.” 631 So.2d at 863.

Given the more clearly permissive language of the clauses involved in those three cases, readily distinguishable from that used in the language before us outlining the options on the lessee’s default, I do not derive much transferable guidance from those fact-specific holdings.

I agree with the main opinion that the two cases relied on by Winn-Dixie, Linens of Paris, Inc. v. Cymet, 510 So.2d 1021 (Fla.Dist.Ct.App.1987), and Wilson v. Pate, 17 Ariz.App. 461, 498 P.2d 535 (1972), give virtually no analysis for their respective conclusions that the default-options clauses in question specified the exclusive remedies available to the lessor. Nonetheless, they involved clauses more nearly comparable to the one at hand than did Rudisill, Mobile Eye Center, or ANCO TV. No verbatim recital of the clause was provided in Linens of Paris; however, the Florida District Court of Appeal paraphrased the clause as stating that once the tenant breached the lease, the landlord “could either cancel the lease or attempt to re-let the premises as [the tenant’s] agent.” 510 So.2d at 1021. In Wilson, the lease clause provided that upon nonpayment of rent, “ ‘the said lessor may, at his election, either distrain for said rent due, or declare this lease at an end and recover possession as if the same was held by forcible detain-er....’” 498 P.2d at 535.

At the least, those two foreign decisions reflect how a clause stipulating that a landlord, following default, “may, at his election [or, as in the present case, ‘at its option’] either [pursue one course of action] or [pursue an alternative course of action],” can be interpreted differently than the main opinion interprets the clause in this case.

I agree with the main opinion that the trial court erred in holding, as a matter of law, that Bowdoin Square’s right to relief for Winn-Dixie’s alleged default was limited under paragraph 21 of the lease to either the recourse available under clause (a) or the recourse available under clause (b). I respectfully disagree equally, however, with the holding in the main opinion that “as a matter of law, paragraph 21 is permissive in nature and allows Bowdoin Square to seek redress outside of the alternative remedies discussed in paragraph 21.” 873 So.2d at 1099-1100. Rather, because I find that paragraph 21 is ambiguous concerning the permissive versus restrictive nature of the two remedy options specified, I would reverse the judgment and remand the case for a new trial as does the main opinion, but in the new trial I would refer the resolution of the ambiguity to the jury. In that regard, it might be proper for the trial judge to instruct the jury concerning the construction of an ambiguous provision pursuant to the rule of contra proferentem stated in note 9 of the main opinion, but I do not consider that to be a rule we should use in determining, as is our role in a de novo review, the question of law of whether there is in fact an ambiguity. Rather, that principle would come into play only in the hands of the fact-finder assigned the task of resolving an ambiguity so found.

APPENDIX

      .The differing parcels and disputed areas are depicted in the appendix to this opinion, which consists of a schematic of the shopping center development delineating the ownership of the different areas of the development.

      . See the appendix to this opinion.

      . See the appendix to this opinion.

      . This lease agreement was drafted by Winn-Dixie.

      . The lease between Bowdoin Square and Winn-Dixie stated: "[Bowdoin Square] agrees not to consent to or join in cancellation or amendment of the ECR ... without [Winn-Dixie's] written consent.”

      . See the appendix to this opinion.

      . Winn-Dixie chose April 14, 2000, as the termination date because it contends that that date was 30 days after Bowdoin Square received Winn-Dixie's March 8 letter.

      . Because the trial court had already determined that Bowdoin Square's relief was limited under paragraph 21, if the jury found that Bowdoin Square had not complied with that paragraph, Bowdoin Square would have no right to any rental payments from Winn-Dix-ie.

      . The language in paragraph 21 of the lease agreement is unambiguous. See Brewbaker Motors, Inc. v. Belser, 776 So.2d 110, 112 (Ala.2000). However, if the provision were ambiguous, we note that it would be construed most strongly against Winn-Dixie, as the drafter of the lease. See Brewbaker Motors, Inc., 776 So.2d at 112.

      . As noted earlier, the trial court did not hold that the violation of the ECR constituted a breach by Bowdoin Square of Winn-Dixie's lease agreement. Instead, the trial court submitted to the jury the issue whether Bowdoin Square's failure to challenge Hertz's use constituted a material breach of its duties under the lease agreement with Winn-Dixie.

      . The lease allowed Winn-Dixie to terminate the lease if (1) the number of parking spaces in the shopping center fell below a total of 350 spaces or below a ratio of 6.5 spaces per 1,000 square feet of building area; (2) Bow-doin Square failed to repair within a specific period premises damaged by fire or other casualty; (3) zoning or other restrictions inhibited Winn-Dixie's business; or (4) a condemnation action by the government rendered the premises useless to Winn-Dixie.

      . The cases cited by Bowdoin Square lend no support to its argument. Those cases— Kennamer Shopping Center, Inc. v. Bi-Low Foods, Inc., 571 So.2d 299 (Ala.1990) (an unlawful-detainer action); Bazzel v. Pine Plaza Joint Venture, 491 So.2d 910 (Ala.1986) (partial physical destruction of premises); and Joiner v. Brightwell, 252 Ala. 112, 39 So.2d 414 (1949) (accidental physical destruction of premises) — do not address an alleged material breach by the landlord; they are therefore distinguishable.

      . These allegations were raised first as counterclaims; however, the trial court subsequently converted the counterclaims to affirmative defenses.

      . The general rule of contra proferentem is to be employed only as a rule of last resort, after other rules of construction have been exhausted. Lackey v. Central Bank of the South, 710 So.2d 419, 422 (Ala.1998). However, specific to ambiguities in lease contracts, this Court has stated: "A lease must be construed most strongly against the lessor and liberally in favor of the lessee.” Greenwood v. Bennett, 208 Ala. 680, 684, 95 So. 159, 163 (1923). See also People’s Bank & Trust Co. v. Tissier Hardware Co., 154 Ala. 103, 45 So. 624 (1907); Marcrum v. Embry, 291 Ala. 400, 282 So.2d 49 (1973); and Gulf Fishing & Boating Club, Inc. v. Bender, 370 So.2d 1026 (Ala.Civ.App.1979).