author: LYONS, Justice.

text:
    Gerald GILBERT and Joyce Gilbert v. James NICHOLSON and Brandy Nicholson.
    1010600.
    Supreme Court of Alabama.
    Sept. 20, 2002.

      Robert P. Bynon, Jr., Birmingham, for appellants.
    Charles C. Tatum, Jr., Jasper, for appel-lees.
   LYONS, Justice.

Gerald Gilbert and his wife, Joyce Gilbert, appeal from a contempt order finding Gerald Gilbert in contempt, entered by the trial court in a dispute between the Gil-berts and his daughter, Brandy Nicholson, and her husband, James Nicholson, relating to a road to the Nicholsons’ property. The Gilberts also appeal from the trial court’s denial of certain motions they filed. We affirm the order finding Gerald Gilbert in contempt, but otherwise dismiss the appeal.

The trial court summarized the history of this case in its contempt order entered on November 2, 2001.

“This case began with a Complaint being filed on the 11th day of March, 1999, by [the Nicholsons] seeking to enjoin [the Gilberts] from blocking a roadway to their homeplace. Thereafter, the parties agreed in Open Court that [the Gilberts] would convey [to the Nichol-sons] another roadway or right of way over their property in order to allow [the Gilberts] to close the existing roadway, and furthermore, that [the Gil-berts] would construct or have constructed said new roadway. Thereafter, the parties could not agree upon the materials, etc., to be used to construct said roadway, and the parties, by and through their attorneys of record, agreed for the Court to appoint Mr. David Edgil, the Walker County Engineer, as the Court’s Special Master to inspect said roadway and see that the road was constructed according to his specifications, and the Court appointed Mr. David Edgil on December 20, 1999, and he has subsequently reported to the Court that the proposed roadway has not been constructed to his specifications, and some of the materials used were insufficient to maintain this roadway.
“The agreement of the parties, through their attorneys of record, is attached hereto as ‘Exhibit A,’ [Exhibit A is not attached to this opinion] ... which agreement the Court has ordered to be enforced and has so ordered the parties to comply with said agreement in Open Court in the presence of all parties and their attorneys of record. The report of the Special Master, Mr. David Edgil, is attached hereto as ‘Exhibit B’ [Exhibit B is not attached to this opinion]....
“The map of the proposed roadway is attached hereto as ‘Exhibit C,’ [Exhibit C is not attached to this opinion] ... which clearly defines the location of the roadway ordered to be constructed by the [Gilberts] herein.
“This case was set for hearing on [the Nicholsons’] Petition for Rule Nisi on August 14, 2001, and the parties were present in Open Court with their respective attorneys of record....
“Defendant, Gerald Gilbert, admitted in Open Court that he was in Contempt of Court for his failure to comply with the Court’s previous Orders, which ordered him and his wife to construct a certain roadway in accordance with the specifications in this Court’s previous Orders, copies of which are attached hereto as ‘Exhibit D and E’ [Exhibits D and E are not attached to this opinion] .... [The Gilberts] have also blocked the old roadway on more than one occasion, although they were previously ordered specifically not to do the same.
“[The Nicholsons’] Petitions for Rule Nisi were set for hearing on one or more occasions, and ‘allegedly’ settled, however, [the Gilberts] have changed Attorneys on more than one occasion, and any ‘alleged settlement’ has always ‘dissipated’ after the date of the hearing.
“The Court further finds that [the Gilberts] have refused to comply with the Court’s previous Orders concerning said roadway, but that only defendant, Gerald Gilbert, has admitted he is in Contempt of Court, and therefore, defendant, Joyce Gilbert, is entitled to a hearing upon her part of the case as to the roadway, as well as, her failure to post the $25,000.00 Performance Bond, heretofore ordered by this Court on August 14, 2001, and the Court hereby sets Tuesday the 20th day of November, 2001, at 9:00 a.m. for said defendant, Joyce Gilbert, to appear in Open Court ... to show cause, if any she has, why she also should not be held in Contempt of Court for her failure to comply with the previous Orders of this Court concerning said roadways, including the Court’s Order of August 14, 2001, requiring her to post a Performance Bond in the sum of $25,000.00 to insure her performance and compliance with the previous Orders of this Court in this ease.
“This Court finds that defendant, Gerald Gilbert’s, refusal to comply with the Court Order, as aforesaid, is based upon his contumacy rather than his inability, and furthermore, the Court finds defendant Gerald Gilbert, is in contempt of this Court.
“Defendant, Gerald Gilbert, has been consistent in his refusal to comply with all of this Court’s orders as aforesaid. This Court has given Mr. Gerald Gilbert several opportunities to comply with its orders; however, Mr. Gilbert has refused to comply with the same and has been flagrant in his violations of said orders. Those who seek equity must do equity. There must be a compliance with the Court’s Orders, consequently, upon consideration of the foregoing;
“JUDGMENT
“IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED, AND DECREED BY THIS COURT AS FOLLOWS:
“1. That defendant, Gerald Gilbert’s, failure to comply with the Court’s Orders to construct said roadway, and his actions in blocking the existing roadway, and his refusal to file a performance bond of $25,000.00 to insure his performance and compliance with this Court’s orders, is not due to his inability, but rather his contumacy.
“2. That defendant, Gerald Gilbert, be and he is hereby found to be in Contempt of this Court.
“3. That this Court hereby sentences the defendant, Gerald Gilbert, to be incarcerated in the Walker County Jail, unless and until he fully and completely complies with the Court’s Orders pertaining to the roadways involved herein.
“4.
“5. That defendant, Gerald Gilbert, may purge himself of Contempt of this Court by constructing or having constructed said road or roadway, in accordance with the Court’s aforesaid Orders, and according to the specifications of the Court’s Special Master, Mr. David Ed-gil, the Engineer for Walker County, Alabama, and further comply with all the Court’s Orders ... no later than November 19, 2001, at 12:00 p.m. (noon).”

The Court held two hearings after it entered its November 2, 2001, contempt order. On November 20, the Court heard testimony concerning Joyce Gilbert’s alleged contempt of court. The Court also heard testimony and argument concerning two motions filed by the Gilberts — a motion to add an indispensable party and a motion to alter, amend, or vacate the trial court’s November 2 order. The Gilberts argued that Leady Gilbert, Gerald Gilbert’s mother and Brandy Nicholson’s grandmother, was an indispensable party to the action and that she should be made a defendant because, the Gilberts said, the road the Gilberts had agreed to construct crossed her property.

The Gilberts also argued that the trial court erred in ordering them to construct a road in accordance with specifications provided by David Edgil, the county engineer. The Gilberts acknowledged that they had agreed to provide another road across the property for the Nicholsons’ use, but they argued that they did not agree to construct it according to Edgil’s specifications. The trial court denied both motions on November 20, but took the matter of Joyce Gilbert’s contempt under advisement. If the trial court ever entered a contempt order as to Joyce Gilbert, it does not appear in the record. Thereafter, the Gilberts filed the $25,000 performance bond required by the court and filed a motion to stay Gerald Gilbert’s incarceration. The trial court held a hearing on the motion to stay Gerald Gilbert’s incarceration and granted the motion to allow Gerald Gilbert to be released from jail with further instructions from the court to comply with its previous orders. The court scheduled another hearing for April 2002.

The Gilberts appealed. Their notice of appeal states that they are appealing from a judgment of November 1 and a postjudgment order of November 20. In addition to arguing that the trial court erred in finding them in contempt, they also argue that the trial court failed to make “correct” findings of fact, that the trial court erred in denying their motion to add Leady Gilbert as an indispensable party, and that the trial court erred in denying their motion to alter, amend, or vacate the November 2 order. To the extent that the Gilberts attempt to appeal orders relating to the merits of the underlying case, their appeal is premature, because no final judgment has been entered in the case. At a hearing conducted in August 2001, the Nicholsons’ attorney stated:

“Your Honor, it’s my understanding that the parties have reached an agreement that all issues presently pending before the Court would be reserved for ruling, final ruling pending a compliance with the agreement first of all, and compliance will require that the [Gil-berts] contact the special master that we appointed, Mr. Edgil, and have Mr. Ed-gil go out with him and to give specifications as to what needs to be done in order to bring the road up to standards.
“After Mr. Edgil has gone out and given this information, and it may be the same information that’s in his report already, but after this information is given by Mr. Edgil, [the Gilberts have] agreed to comply in full with whatever requirements Mr. Edgil states.”

(Emphasis added.) The Gilberts’ attorney responded: “We understand this is to be the agreement. We also understand that once the road is completed and the engineer, county engineer, Mr. Edgil, says yes, this is it, then my clients’ obligations or any further maintenance of that road are extinguished.” (Emphasis added.)

It is clear that no final judgment will be entered on the merits in this case until the Gilberts have complied with the parties’ agreement that they construct a new roadway for the Nicholsons’ use to replace an existing roadway. It is clear from the record before us that the Gilberts have not yet complied; therefore, the trial court has not yet entered a final judgment as to the merits of this case that would support an appeal. It is well settled that “[a]n appeal will not lie from an order or judgment which is not final.” Robinson v. Computer Servicenters, Inc., 360 So.2d 299, 302 (Ala.1978). We dismiss the Gil-berts’ appeal, to the extent that it addresses the merits of the underlying case.

While no appeal from a final judgment is yet before us, the Gilberts’ attack on the trial court’s jurisdiction for failure to join an indispensable party makes it necessary for us to review the trial court’s otherwise interlocutory order denying the Gilberts’ motion to join Leady Gilbert as an indispensable party. The absence of an indispensable party is a jurisdictional defect that renders the proceeding void. Davis v. Burnette, 341 So.2d 118 (Ala.1976). Therefore, to the extent that the absence of an indispensable party would constitute a defense to the contempt adjudication challenged by the Gilberts, we must consider the propriety of the trial court’s denial of the Gilbert’s Rule 19, Ala. R. Civ. P., motion. Ex parte NAACP, 265 Ala. 349, 91 So.2d 214 (1956), rev’d on other grounds, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).

The Gilberts contended in their answer to the Nicholsons’ March 1999 complaint that the complaint should be dismissed because the Nicholsons had failed to join Leady Gilbert, who, the Gilberts argue, was an indispensable party. The record reflects that after the Gilberts filed their answer, the parties agreed not to join Leady Gilbert because of her age, her relationship to the parties, and the fact that she had consented to the new road. It was not until November 2001 that the Gilberts attempted to insist that the action could not be maintained without Leady Gilbert.

The absence of an indispensable party can be raised for the first time on appeal by the parties or by the appellate court ex mero motu, even if the parties did not present the issue to the trial court. Crum v. SouthTrust Bank of Alabama, N.A., 598 So.2d 867 (Ala.1992); J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981). Therefore, the Gilberts’ delay in arguing this issue to the trial court is not dispositive. The rule, however, gives the trial court the discretion to permit or to deny the joinder of an additional party. See Rule 19(b), Ala. R. Civ. P.; Felder v. State, 515 So.2d 17 (Ala.Civ.App.1987). The record contains no evidence indicating that Leady Gilbert ever objected to the road that is the subject of this case or that she contributed in any way to the Gilberts’ failure and/or refusal to construct the road in accordance with the court’s orders. Under the circumstances here presented, we conclude that the trial court did not abuse its discretion in denying the Gilberts’ motion to add Leady Gilbert as an additional party and that her absence does not render the proceeding void. We therefore affirm the trial court’s order denying the Gilberts’ motion to join Leady Gilbert.

We turn now to the November 2 contempt order. In that order, the trial court found only Gerald Gilbert in contempt of court. The record does not contain any order finding Joyce Gilbert in contempt of court, although a hearing ostensibly on that matter was conducted on November 20. We also dismiss the appeal to the extent that it addresses the alleged contempt of Joyce Gilbert.

Rule 70A, Ala. R. Civ. P., controls contempt proceedings that arise out of civil actions, whether the contempt is civil or criminal. Although the trial court’s order does not specify whether it found Gerald Gilbert in civil contempt or in criminal contempt, these proceedings clearly deal with civil contempt. Civil contempt is defined as “willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.” Rule 70A(a)(2)(D). See also Ex parte J.R.W., 667 So.2d 88 (Ala.1995) (civil contempt involves a party’s failure to do something ordered by the court for the benefit of the opposing party). An adjudication of contempt is reviewable by appeal, whether or not the contemnor is being held in custody. Rule 70A(g).

From the record before us, we know that the trial court released Gerald Gilbert from jail on December 18, 2001, and scheduled another hearing in the case for April 2002. For all that appears, Gerald Gilbert could have purged himself of contempt before the April 2002 hearing. Nevertheless, in a case decided before the Alabama Rules of Civil Procedure were amended to allow a contemnor to appeal whether or not he was incarcerated, this Court held that the contemnor was entitled to a review on the merits of his contempt adjudication even though he had purged himself of contempt by paying a judgment for past-due child support in order to secure his release from jail. Ex parte Parmer, 373 So.2d 845 (Ala.1979). Therefore, even if Gerald Gilbert purged himself of contempt after appealing his contempt adjudication, that aspect of his appeal would not be moot, and we will address the contempt order.

We review a circuit court’s finding of civil contempt under an abuse-of-discretion standard. Cavender v. State Mut. Ins. Co., 748 So.2d 863 (Ala.1999). When evidence in a contempt ease is presented ore tenus to the trial court, the trial court’s finding regarding contempt is presumed correct. See, e.g., Varner v. Varner, 662 So.2d 273 (Ala.Civ.App.1994); Cohn v. Cohn, 658 So.2d 479 (Ala.Civ.App.1994).

In appealing the contempt order, the Gilberts argue that their agreement to construct a new road for use by the Ni-cholsons did not include an agreement to construct it in accord with specifications to be established later by a third party and that the trial court erred in requiring them to construct the road in accordance with specifications supplied by David Edgil. Their only understanding, say the Gilberts, was that Edgil was to be appointed as a special master for the purpose of inspecting the new road and reporting to the court. This argument is directly contradicted by the portion of the transcript quoted above, discussing the parties’ understanding of their agreement.

The Gilberts also argue that they have “done everything they can do within their means,” but that “for reasons unknown to [them], their duties and obligations were extended beyond what they had agreed to.” Gerald Gilbert testified that building the road called for by Edgil would cost approximately $25,000, that his and his wife’s combined gross income for the year 2000 was only $22,161, and that he could not comply with the court’s order to build the road in accordance with Edgil’s specifications. The record is silent as to the actual cost of construction, but it does reflect that friends have offered to assist Gerald Gilbert in complying with the court’s orders.

The inability of a party to obey a court order is a defense to a charge of contempt. Ex parte J.R.W., 667 So.2d 74, 77 (Ala.1994). The trial court resolved the issue of Gerald Gilbert’s inability to comply against him after hearing evidence presented ore tenus. In light of the trial court’s numerous opportunities to hear testimony from and to observe the parties, we conclude that the court did not abuse its discretion in finding Gerald Gilbert in contempt of court, and we affirm the contempt order of November 2.

We affirm the trial court’s orders denying the Gilberts’ motion to join Leady Gilbert as an indispensable party and finding Gerald Gilbert in contempt of court. In all other respects, we dismiss the Gilberts’ appeal.

AFFIRMED IN PART; APPEAL DISMISSED IN PART.

MOORE, C.J., and HOUSTON, JOHNSTONE, and WOODALL, JJ., concur.

      . The trial court’s order was signed on November 1, but it was not entered until November 2.

      . Although the Gilberts argue that the trial court erred in finding both of them in contempt of court, as we discuss later, the record does not contain any contempt order pertaining to Joyce Gilbert.


source: Caselaw Access Project

author:
MONROE, Judge.
      CRAWLEY, Judge,

license: Public Domain

text:
    CeCe HYLTON v. Edward C. MEZTISTA, an individual, and Magic Media Division, a partnership, jointly and severally.
    2990405.
    Court of Civil Appeals of Alabama.
    April 28, 2000.
    Rehearing Denied June 23, 2000.
    Lynn C. Miller and Julie C. Glover of Glover & Miller, L.L.C., Mobile, for appellant.

      Thomas R. Boiler, Mobile, for appellees.
   MONROE, Judge.

Cece Hylton sued Edward C. Meztista and Magic Media Division (“MMD”), a partnership, alleging breach of a partnership agreement. Hylton also sought a dissolution of the partnership and an accounting of partnership profits. The trial court entered a summary judgment in favor of Meztista and MMD on the ground of accord and satisfaction. Hylton appealed to the Alabama Supreme Court, which deflected the case to this court pursuant to § 12-2-7(6), Ala.Code 1975.

A motion for summary judgment may be granted only when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Crowne Investments, Inc. v. Bryant, 638 So.2d 873 (Ala.1994). The burden is on the moving party to show that no material fact is in dispute; the evidence is to be viewed in the fight most favorable to the nonmovant, and all reasonable inferences are to be drawn in that party’s favor. Id.

Rule 56 is read in conjunction with the “substantial-evidence rule,” § 12-21-12, Ala.Code 1975. See Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). To defeat a defendant’s properly supported motion for summary judgment, the plaintiff must present substantial evidence, i.e., “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

The following facts are undisputed: Hyl-ton and Meztista had a partnership, MMD, which had an advertising account with a Delchamps grocery store. Pursuant to the partnership agreement, Hylton and Mez-tista would equally divide the profits MMD earned once expenses were paid. They also agreed to equally divide the partnership’s liabilities. From the record, it appears that Delchamps, which paid MMD $30,000 a month, was the only account the partnership handled. When the Del-champs chain of stores was sold, MMD lost the account.

In January 1998, Meztista provided Hyl-ton with a two-page document, which he said was an accounting of MMD’s profits and expenses. The bottom fine showed a balance of $35,235.67, of which Hylton was owed $17,617.84. Hylton, however, questioned certain expenses included in the accounting and asked Meztista to let her review the partnership’s books.

Hylton was never given the opportunity to see the books. Meztista did not return her telephone calls, nor did he provide her with an explanation regarding the expenses shown on the accounting. In April 1998, Meztista gave Hylton a check for $17,617.84, which was drawn on MMD’s account. The face of the check stated that it was “final payment/payment in full.” Hylton cashed the check, but wrote on it that she was doing so “under protest.” She added “CASHING THIS CHECK DOES NOT CONSTITUTE MY ACCEPTANCE OF THIS AMOUNT AS PAYMENT IN FULL.” In May 1998, Hylton filed her complaint in this case.

Hylton contends that the trial court erred in concluding that when she cashed the check, it constituted an accord and satisfaction. Specifically, she argues that Meztista’s refusal to allow her to have access to the partnership’s books amounted to bad faith. She asserts that an essential element of accord and satisfaction is that the instrument must be tendered in good faith. The trial court specifically found that Hylton had failed to present substantial evidence tending to show that Meztista did not tender his check in good faith.

We first note that accord and satisfaction is an affirmative defense, Rule 8(c), Ala. R. Civ.P., and that the burden of proving an affirmative defense is on the defendant. Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala.1997); Lightfoot v. Floyd, 667 So.2d 56 (Ala.1995).

By law, the partnership must provide partners and their agents and attorneys access to its books and records. § 10-8A-403(b), Ala.Code 1975. Former partners are entitled to see books and records pertaining to the time during which they were partners. Id. Furthermore, each partner has an obligation to “discharge the duties to the partnership and the other partners ... and exercise any rights consistently with the obligation of good faith and fair dealing.” § 10-8A-404(d), Ala.Code 1975.

Without determining whether Mez-tista met his burden of showing that there was an accord and satisfaction, Hylton presented substantial evidence tending to show that Meztista had prevented her from reviewing the partnership books and that he did not return her telephone calls regarding questions she had about the accounting. From this evidence, a reasonable jury could determine that Meztista had not acted in good faith in paying Hyl-ton what Meztista said was her share of the partnership’s profits.

Additionally, the record shows that Hylton presented substantial evidence tending to cast doubt on whether there was an actual accord and satisfaction.

“‘An accord and satisfaction is an agreement reached between competent parties regarding payment of a debt the amount of which is in dispute. Limbaugh v. Merrill Lynch, Pierce, Fenner & Smith, 732 F.2d 859, 861 (11th Cir.1984); O’Neal v. O’Neal, 284 Ala. 661, 227 So.2d 430 (1969). There can be no accord and satisfaction “without the intentional relinquishment of a known right.” Id. at 663, 227 So.2d at 431.
“ ‘Like any other contract, a valid accord and satisfaction requires consideration and a meeting of the minds regarding the subject matter. Bank Indep. v. Byars, 538 So.2d 432, 435 (Ala.1988); Farmers & Merchants Bank of Centre v. Hancock, 506 So.2d 305, 310 (Ala.1987); Austin v. Cox, 492 So.2d 1021, 1022 (Ala.1986); Ray v. Alabama Central Credit Union, 472 So.2d 1012, 1014 (Ala.1985).’ ”

Elan Pharma, Inc. v. Brinson, 689 So.2d 202 (Ala.Civ.App.1997) (quoting Bay City Constr. Co. v. Hayes, 624 So.2d 1031, 1032-33 (Ala.1993)).

Hylton presented substantial evidence tending to show that she and Meztista did not have a meeting of the minds. The evidence also shows that in cashing the check Hylton did not intend to relinquish any right she might have had in seeking an accounting and in ensuring she was paid everything she was owed.

“Whether the parties have reached an accord and satisfaction is almost always a question for the trier of fact.” Brinson, supra, at 205. Hylton presented substantial evidence from which the finder of fact could reasonably determine that no accord and satisfaction had been reached.

The trial court erred in entering the summary judgment in favor of Meztista. Therefore, the judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

ROBERTSON, P.J., and YATES, J., concur.

CRAWLEY and THOMPSON, JJ., dissent.

CRAWLEY, Judge,

dissenting.

I conclude that the trial court properly entered the summary judgment for Mez-tista, because no genuine issue of material fact exists as to whether an accord and satisfaction had occurred. Hylton’s placing a restrictive endorsement on the check does not create an issue of fact as to whether an accord and satisfaction had occurred. This court has held that a party in Hylton’s position has two options: (1) reject the offer of the check as full satisfaction of the disputed claim; or (2) accept the offer of the check as a full satisfaction by cashing or depositing the check. Public Nat’l Life Ins. Co. v. Highsmith, 47 Ala.App. 488, 256 So.2d 912 (Ala.Civ.App.1971). The supreme court has held that a party in Hylton’s position does not have the option of accepting the offer of the check and placing a restrictive endorsement on it. Boohaker v. Trott, 274 Ala. 12, 16, 145 So.2d 179, 188 (1962) (“The fact that the plaintiff attempted to ‘amend’ the legend on the check [from full payment to partial payment] cannot avail him.”). Such an altering of the terms of the offer does not affect the validity of the accord and satisfaction. Id. According to the law as stated by Highsmith and Boohaker, Hyl-ton’s endorsement on the check, indicating that she was not accepting the check as full payment for her partnership interest, is not relevant in light of the fact that she deposited the check. Her action of depositing the check completed the accord and satisfaction.

THOMPSON, J., concurs.


author: WOODALL, Justice.

text:
    Ex parte Edward C. MEZTISTA. (Re CeCe Hylton v. Edward C. Meztista, an individual, and Magic Media Division, a partnership, jointly and severally).
    1991922.
    Supreme Court of Alabama.
    Sept. 7, 2001.
    Rehearing Denied Dec. 28, 2001.

      Thomas R. Boiler, Mobile, for petitioner.
    Lynn C. Miller and Julie C. Glover of Glover & Miller, L.L.C., Mobile, for CeCe Hylton.
   WOODALL, Justice.

CeCe Hylton sued Edward C. Meztista and Magic Media Division (“MMD”), a partnership, alleging breach of the partnership agreement and seeking a dissolution of the partnership and an accounting of the partnership profits. The Court of Civil Appeals stated the following relevant and undisputed facts:

“The following facts are undisputed: Hylton and Meztista had a partnership, MMD, which had an advertising account with a Delchamps grocery store. Pursuant to the partnership agreement, Hylton and Meztista would equally divide the profits MMD earned once expenses were paid. They also agreed to equally divide the partnership’s liabilities. From the record, it appears that Delchamps, which paid MMD $30,000 a month, was the only account the partnership handled. When the Delchamps chain of stores was sold, MMD lost the account.
“In January 1998, Meztista provided Hylton with a two-page document, which he said was an accounting of MMD’s profits and expenses. The bottom line showed a balance of $35,235.67, of which Hylton was owed $17,617.84. Hylton, however, questioned certain expenses included in the accounting and asked Mez-tista to let her review the partnership’s books.
“Hylton was never given the opportunity to see the books. Meztista did not return her telephone calls, nor did he provide her with an explanation regarding the expenses shown on the accounting. In April 1998, Meztista gave Hyl-ton a check for $17,617.84, which was drawn on MMD’s account. The face of the check stated that it was ‘final payment/payment in full.’ Hylton cashed the check, but wrote on it that she was doing so ‘under protest.’ She added ‘CASHING THIS CHECK DOES NOT CONSTITUTE MY ACCEPTANCE OF THIS AMOUNT AS PAYMENT IN FULL.’ In May 1998, Hylton filed her complaint in this case.”

Hylton v. Meztista, 845 So.2d 792, 793 (Ala.Civ.App.2000).

Meztista and MMD moved for a summary judgment, contending that Hylton’s cashing of the $17,617.84 check constituted an accord and satisfaction. The trial court entered a summary judgment in favor of Meztista and MMD, stating the following conclusions of law:

“1. [The] Defendant established a pri-ma facie ease that any debt owed [the] Plaintiff was discharged pursuant to Ala. Code 1975, § 7-3-311(b).
“2. Even reviewing the record in a light most favorable to the Plaintiff and resolving all reasonable doubts against the Defendant, Plaintiff has not presented substantial evidence of a genuine issue of material fact that [the] Defendant did not tender his check in good faith, or that the amount due was not the subject of a bona fide dispute.”

Hylton appealed to this Court, and we transferred the case to the Court of Civil Appeals, pursuant to § 12-2-7(6), Ala. Code 1975. The Court of Civil Appeals, holding that the trial court had erred in entering the summary judgment for Mez-tista and MMD, reversed that judgment and remanded the case for further proceedings consistent with its opinion. After the Court of Civil Appeals overruled their application for rehearing, Meztista and MMD petitioned this Court for certiorari review, and we granted their petition. We reverse the judgment of the Court of Civil Appeals and remand the case for further proceedings consistent with this opinion.

In a well-reasoned dissent, Judge Craw-ley stated the applicable legal principles and the resulting legal conclusions:

“I conclude that the trial court properly entered the summary judgment for Meztista, because no genuine issue of material fact exists as to whether an accord and satisfaction had occurred. Hylton’s placing a restrictive endorsement on the check does not create an issue of fact as to whether an accord and satisfaction had occurred. This court has held that a party in Hylton’s position has two options: (1) reject the offer of the check as full satisfaction of the disputed claim; or (2) accept the offer of the check as a full satisfaction by cashing or depositing the check. Public Nat’l Life Ins. Co. v. Highsmith, 47 Ala.App. 488, 256 So.2d 912 (Ala.Civ.App.1971). The supreme court has held that a party in Hylton’s position does not have the option of accepting the offer of the check and placing a restrictive endorsement on it. Boohaker v. Trott, 274 Ala. 12, 16, 145 So.2d 179, 183 (1962). (‘The fact that the plaintiff attempted to “amend” the legend on the check [from full payment to partial payment] cannot avail him.’). Such an altering of the terms of the offer does not affect the validity of the accord and satisfaction. Id. According to the law as stated by Highsmith and Boohaker, Hylton’s endorsement on the check, indicating that she was not accepting the check as full payment for her partnership interest, is not relevant in light of the fact that she deposited the check. Her action of depositing the check completed the accord and satisfaction.”

Hylton v. Meztista, 845 So.2d at 795 (Crawley, J., dissenting) (emphasis supplied).

This Court has emphasized the contractual nature of an accord and satisfaction:

“An accord and satisfaction is an agreement reached between competent parties regarding payment of a debt the amount of which is in dispute. Limbaugh v. Merrill Lynch, Pierce, Fenner & Smith, 732 F.2d 859, 861 (11th Cir.1984); O’Neal v. O’Neal, 284 Ala. 661, 227 So.2d 430 (1969). There can be no accord and satisfaction ‘without the intentional relinquishment of a known right.’ Id. at 663, 227 So.2d at 431.
“Like any other contract, a valid accord and satisfaction requires consideration and a meeting of the minds regarding the subject matter. Bank Indep. v. Byars, 588 So.2d 432, 435 (Ala.1988); Farmers & Merchants Bank of Centre v. Hancock, 506 So.2d 305, 310 (Ala.1987); Austin v. Cox, 492 So.2d 1021, 1022 (Ala.1986); Ray v. Alabama Central Credit Union, 472 So.2d 1012, 1014 (Ala.1985).”

Leisure Am. Resorts v. Carbine Constr. Co., 577 So.2d 409, 411 (Ala.1990) (emphasis supplied).

Applying these well-established principles to the facts of this case, the Court of Civil Appeals concluded that “Hylton presented substantial evidence tending to show that she and Meztista did not have a meeting of the minds.” In reaching that conclusion, the Court of Civil Appeals relied on Hylton’s apparently subjective intent to retain her right to seek an accounting and to ensure that she was paid all that she was owed. Hylton v. Meztista, 845 So.2d at 794. The Court of Civil Appeals erred in reaching this conclusion. When Hylton endorsed and deposited the check, she agreed to the condition upon which it was offered, and she is estopped to deny that agreement. Boohaker v. Trott, 274 Ala. 12, 145 So.2d 179 (Ala.1962); Public Nat’l Life Ins. Co. v. Highsmith, 47 Ala.App. 488, 256 So.2d 912 (Ala.Civ.App.1971).

According to the Alabama Comment to § 7-3-311, Ala.Code 1975, that “section prescribes the rules that apply when an accord and satisfaction is asserted on the basis of a written notation on a negotiable instrument.” That section provides in pertinent part:

“(a) If a person against whom a claim is asserted proves that (i) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, (ii) the amount of the claim was unliqui-dated or subject to a bona fide dispute, and (iii) the claimant obtained payment of the instrument, the following subsections apply.
“(b) ... [T]he claim is discharged if the person against whom the claim is asserted proves that the instrument ... contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.”

(Emphasis supplied.) In holding that a jury issue existed concerning the good-faith-tender requirement, the Court of Civil Appeals stated:

“Without determining whether Mez-tista met his burden of showing that there was an accord and satisfaction, Hylton presented substantial evidence tending to show that Meztista had prevented her from reviewing the partnership books and that he did not return her telephone calls regarding questions she had about the accounting. From this evidence, a reasonable jury could determine that Meztista had not acted in good faith in paying Hylton what Mez-tista said was her share of the partnership’s profits.”

Hylton v. Meztista, 845 So.2d at 794. The Court of Civil Appeals has misconstrued the good-faith-tender requirement in § 7-3-311(a)(i).

The Court of Civil Appeals looked to evidence that Meztista had not discharged his good-faith obligations with regard to the underlying contract, i.e., the partnership agreement. While this Court has never before interpreted the statutory good-faith-tender requirement, we note that the examples of bad-faith tender in paragraph 4 of the Official Comment to § 7-3-311 focus on the offer of the accord, and not on any conduct relating to the underlying contract. Those examples are:

“For example, suppose an insurer tenders a check in settlement of a claim for personal injury in an accident clearly covered by the insurance policy. The claimant is necessitous and the amount of the check is very small in relationship to the extent of the injury and the amount recoverable under the policy. If the trier of fact determines that the insurer was taking unfair advantage of the claimant, an accord and satisfaction would not result from payment of the check because of the absence of good faith by the insurer in making the tender. Another example of lack of good faith is found in the practice of some business debtors in routinely printing full satisfaction language on their check stocks so that all or a large part of the debts of the debtor are paid by checks bearing the full satisfaction language, whether or not there is any dispute with the creditor. Under such a practice the claimant cannot be sure whether a tender in Ml satisfaction is or is not being made. Use of a check on which full satisfaction language was affixed routinely pursuant to such a business practice may prevent an accord and satisfaction on the ground that the check was not tendered in good faith under subsection (a)(i).”

(Emphasis supplied.) The Court of Civil Appeals erred in focusing on the conduct relating to the partnership, instead of on the offer of the accord. In reaching this conclusion, we find the reasoning of the Minnesota Supreme Court persuasive.

In Webb Business Promotions, Inc. v. American Electronics & Entertainment Corp., 617 N.W.2d 67 (Minn.2000), the Minnesota Supreme Court examined the good-faith-tender requirement of § 3-311 of the Uniform Commercial Code. After reviewing the language of that section and the comment to the section quoted above, the Minnesota Supreme Court stated:

“Good faith is demonstrated when the party tendering the instrument offers a check with the intent to honestly enter into an accord and satisfaction while observing reasonable commercial standards of fair dealing. The focus of the good faith inquiry is on the offer of the accord, and not on the actions of the parties in performing the underlying contract.”

617 N.W.2d at 73 (citation omitted). That Court went on to state:

“Bad faith is not necessarily established by a failure to disclose facts about the underlying dispute that would have led to rejection of the offer of an accord. By accepting a certain sum of money to discharge a debt, the creditor waives a cause of action relating to the original debt.... Therefore, part of the consideration for the accord is the creditor’s waiver of claims that may entitle it to more than what the debtor is offering in the accord. Once the creditor accepts the accord and performs the satisfaction, the validity of the accord and satisfaction may not be challenged unless the party challenging the accord can demonstrate that the elements of the accord and satisfaction have not been satisfied.”

617 N.W.2d at 74. The reasoning of the Minnesota Supreme Court is sound; it is also consistent with § 7-3-311 and our precedent.

Meztista provided Hylton with an accounting; that accounting showed that Hylton was owed $17,617.84 from the partnership. Hylton questioned the accounting and asked to review the partnership’s books. Knowing that Hylton disputed certain expenses in the accounting and that she wanted to review the books, Meztista tendered to Hylton a check in the amount the accounting showed was owed her. No evidence was presented indicating that the check was not tendered in good faith in an attempt to resolve the dispute over the amount payable to Hylton. Both parties are sophisticated business people, who were aware of their rights and of the nature of their dispute. The check clearly stated that it was “final paymeni/payment in full.” Hylton accepted the offer of the check as a full satisfaction by depositing the check, thereby precluding any further claim against Meztista or MMD.

For the foregoing reasons, we reverse the judgment of the Court of Civil Appeals, and we remand this case for an order or proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.


author: PER CURIAM.

text:
    CeCe HYLTON v. Edward C. MEZTISTA, an individual, and Magic Media Division, a partnership, jointly and severally.
    2990405.
    Court of Civil Appeals of Alabama.
    Sept. 13, 2002.
    Lynn C. Miller and Julie C. Glover of Glover & Miller, L.L.C., Mobile, for appellant.
    Thomas R. Boiler, Mobile, for appellees.
   After Remand From The Alabama Supreme Court

PER CURIAM.

The Alabama Supreme Court has reversed this court’s judgment of April 28, 2000, and has remanded the case. See Ex parte Meztista, 845 So.2d 795 (Ala.2001). The judgment of the trial court is affirmed.

AFFIRMED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.


author: ROBERTSON, Presiding Judge. CRAWLEY, Judge,

text:
    James Wood LaMOREAUX v. Linda Lightfoot LaMOREAUX. Linda Lightfoot LaMoreaux v. James Wood LaMoreaux.
    2990299.
    Court of Civil Appeals of Alabama.
    Aug. 25, 2000.
    Rehearing Denied Dec. 1, 2000.
    Robert F. Prince of The Prince Law Firm, P.C., Tuscaloosa, for appellant/cross-appellee James Wood LaMoreaux.
    Charles R. Malone of Malone, Biinyark & Nelson, P.C., Tuscaloosa, for appel-lee/cross-appellant Linda Lightfoot LaMo-reaux.
   ROBERTSON, Presiding Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App.P.; Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996); Hodge v. Hovey, 679 So.2d 1145 (Ala.Civ.App.1996); Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App. 1993); and Shirley v. Shirley, 600 So.2d 284 (Ala.Civ.App.1992).

YATES, MONROE, and THOMPSON, JJ., concur.

CRAWLEY, J., concurs in part and dissents in part.

CRAWLEY, Judge,

concurring in part and dissenting in part.

I concur as to the child-custody and contempt issues. I dissent, however, from the holding that the trial court’s division of the marital estate was equitable.

The trial court’s judgment states that the husband’s PELA stock or the income derived from that stock was “not regularly used for the common benefit of the parties during the marriage.” The judgment also states that, in dividing marital property, the trial court “[took] into consideration” the husband’s PELA stock. I believe the latter statement demonstrates that the trial court violated the following express directive of § 30-2-51(a), Ala.Code 1975:

“[T]he judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.”

(Emphasis added.) Although the trial court was authorized to increase the wife’s share of the marital estate because of the husband’s admitted adultery, the trial court was not authorized to award the wife almost 100% of the marital property on the conclusion that the value of the wife’s award was balanced by the value of the husband’s separate estate.


author: JOHNSTONE, Justice.

text:
    Ex parte James Wood LaMOREAUX. (In re James Wood LaMoreaux v. Linda Lightfoot LaMoreaux. Linda Lightfoot LaMoreaux v. James Wood LaMoreaux).
    1000522.
    Supreme Court of Alabama.
    June 14, 2002.

      Robert F. Prince of The Prince Patterson Law Firm, Tuscaloosa, for petitioner.
    Robert J. Lee of Brinyark & Nelson, P.C., Tuscaloosa, for respondent.
   JOHNSTONE, Justice.

James Wood LaMoreaux and Linda Lightfoot LaMoreaux were divorced by the Tuscaloosa County Circuit Court. The husband appealed the judgment of the trial court to the Court of Civil Appeals, where he argued, among other contentions, that the trial court had erred in the division of the parties’ marital property by considering stock gifted to the husband by his family and not used regularly for the common benefit of the couple during their marriage, § 30-2-51(a), Ala.Code 1975.

Without opinion, the Court of Civil Appeals affirmed the judgment of the trial court. LaMoreaux v. LaMoreaux, 845 So.2d 800 (Ala.Civ.App.2000). The husband petitioned this Court for certiorari review, which we granted. In his petition, the husband asserts that the no-opinion affirmance by the Court of Civil Appeals conflicts with its decision in Durbin v. Durbin, 818 So.2d 396 (Ala.2000), rev’d on other grounds, Ex parte Durbin, 818 So.2d 404 (Ala.2001). We reverse the judgment of the Court of Civil Appeals affirming the property division in the judgment of the trial court, and we remand this cause for further proceedings.

The husband sued for a divorce and for custody of the parties’ two minor daughters. The wife answered and counterclaimed for a divorce on the ground of adultery and for custody of the minor daughters. After a bench trial on oral testimony and documentary evidence, the trial court entered a judgment of divorce and awarded the wife, amidst other relief, custody the parties’ minor daughters, periodic alimony, and child support. The trial court divided the parties’ real property:

“1. As noted above in the Findings of Fact, the Husband’s property located at 1926 Queen City Avenue is not a marital asset and is not subject to a property division under Section 30-2-51, [Ala.Code 1975], as amended, as there was no evidence that this property (which was owned by the Husband prior to the marriage), or the income produced by the property, was used regularly for the common benefit of the parties during the marriage....
“2. The Wife is vested with all right, title and interest in and to the following property, and the Husband is divested of any interest in said property:
“(a) 1/2 interest in 1305 Indian Hills Drive, Tuscaloosa [total equity $ 130,-000]
“(b) 2601 7th Street, Tuscaloosa [equity of $130,000]
“(c) 2720 8th Street, Tuscaloosa [value between $20,000 and $30,000]
“(d) 2600 8th Street, Tuscaloosa [equity of $57,519]
“(e) 1/2 interest in North River Yacht Club lot [total appraised value of $75,000]
“The combined equity of these properties is approximately $382,000.00, or 58 percent of the marital property. The reasonable monthly income for the properties in (b), (c) and (d) above is $2,000.00-$2,200.00.
“3. The Husband is vested with all right, title and interest in and to the following property, and the Wife is divested of any interest in said property:
“(a) 1/2 interest in 1305 Indian Hills Drive
“(b) 37 Audubon Place, Tuscaloosa [equity of $60,000]
“(c) 1209 & 1211 Bridge Avenue, Tuscaloosa [value of $88,000]
“(d) 246 The Highlands, Tuscaloosa [$ 0 equity]
“(e) 1/2 interest in North River Yacht Club lot
“The combined equity of these properties is approximately $281,000, or approximately 42 per cent of the marital property.
“The division of marital property takes into account, among other factors, the Husband’s extramarital relationships which were a primary contributing cause of the breakdown of the parties’ marriage.
“4. The marital residence located at 1305 Indian Hills Drive and the lots located on Windward Avenue [North River Yacht Club lot] shall be immediately sold and the net proceeds divided equally between the parties after payment of the debts which exist at the date of sale contained in Exhibit # 1 attached hereto.
“6. As an additional part of the overall property settlement, and/or as alimony in gross, the Husband shall pay to the Wife the sum of $68,000, payable as follows: $25,000.00 on November 1, 1999; $23,000.00 on November 1, 2000; and $20,000 on November 1, 2001. This additional property settlement takes into consideration the overall property division between the parties, the Wife’s claim to a portion of the value of the Husband’s stock in PELA [P.E. LaMo-reaux and Associates] acquired after the marriage, and the Wife’s claim to a portion of the Husband’s stock accounts. Consideration is also given to the fact that most of the stock accounts were given to the Husband by the Husband’s family and were not regularly used for the common benefit of the parties during the marriage.” (Emphasis original in part and added in part.)

The trial court awarded the husband all of his 118 shares of the P.E. LaMoreaux and Associates (“PELA”) stock now at issue, but ordered him to pay $20,000 to the wife’s attorneys as their fee.

Both the husband and the wife moved to alter, to amend, or to vacate the judgment. Following a hearing on the parties’ motions, the trial court entered an amended judgment:

“The Court finds that the division of assets in the original Judgment did not sufficiently take into consideration the Husband’s misconduct. This amended order takes into account an additional emphasis on this misconduct. Also, this amended Judgment takes into account an additional finding that the Hus band’s stock is worth somewhat more than the Court’s previous valuation.”

The trial court awarded the wife the marital residence and the North River Yacht Club lot, both previously ordered sold and the net proceeds divided between the parties, and ordered the husband to pay one-half of the wife’s previously incurred medical expenses, an additional $25,000 to the wife’s attorneys, an additional' $32,000 in alimony in gross, and an additional $500 per month in periodic alimony. The husband appealed, and the Court of Civil Appeals affirmed without opinion. LaMo-reaux, supra.

The husband testified that, during their 17 year marriage, he and the wife had maintained separate bank accounts; that the wife did not have access to any of his bank accounts or to any of his stock accounts; that he had a Merrill Lynch checking account from which he paid the household expenses; and that he deposited his salary into the Merrill Lynch account. When the wife’s attorney asked the husband whether there were “[a]ny other monies coming into this account from any other sources,” the husband replied, “Not that I know of.”

The husband testified that his family had gifted him about 118 shares of stock in the family-owned corporation, PELA; that he received about one-half of the shares before the marriage and the remaining shares during the marriage; that, in the years when the corporation made a profit, the corporation paid dividends to the stockholders; and that he had received PELA stock dividends in the nine years before the trial. He did not testify what he had done with the PELA stock dividends. While the husband and the wife each called an expert to testify about the value of the husband’s PELA stock, the experts did not offer any testimony about the husband’s disposition of his PELA stock dividends. Nor did the wife, or any other witness, testify about the husband’s disposition of his PELA stock dividends.

The husband argues that, because his PELA stock or dividends were not regularly used for the parties’ common benefit during the marriage, the trial court erred in considering the value of his PELA stock in dividing the marital property, and that, therefore, the Court of Civil Appeals erred in affirming the judgment of the trial court.

“The standard appellate courts apply in reviewing a trial court’s judgment awarding alimony and dividing property is well established:
“ ‘A trial court’s determination as to alimony and the division of property following an ore tenus presentation of the evidence is presumed correct. Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993). Moreover, issues of alimony and property division must be considered together, and the trial court’s judgment will not be disturbed absent a finding that it is unsupported by the evidence so as to amount to an abuse of discretion. Id.’
“Morgan v. Morgan, 686 So.2d 308, 310 (Ala.Civ.App.1996). More recently, the Court of Civil Appeals has stated:
“ ‘The trial court has wide discretion over alimony and the division of property, and it may use whatever means are reasonable and necessary to equitably divide the parties’ property. Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App.1989). Its judgment is presumed correct and will not be reversed unless it is so unsupported by the evidence ... as to be unjust and palpably wrong. Grimsley, 545 So.2d at 76. However, that judgment is subject to review and revision. Moody v. Moody, 641 So.2d 818, 820 (Ala.Civ.App.1994). This court must consider the issues of property division and alimony together when reviewing the decision of the trial court, Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1996), and, because the facts and circumstances of each divorce are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So.2d 620, 628 (Ala.Civ.App.1993).’
“Bushnell v. Bushnell, 713 So.2d 962, 964-65 (Ala.Civ.App.1997).”

Ex parte Drummond, 785 So.2d 358, 360-61 (Ala.2000). See also Ex parte Durbin, 818 So.2d at 401.

Section 30-2-51(a), Ala.Code 1975, provides:

“If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.” (Emphasis added.)

This statute does not differentiate between gifts acquired before the marriage and gifts acquired during the marriage. The time of acquisition affects only “property” acquired otherwise than by “inheritance or gift.” See Goodson v. Goodson, 588 So.2d 481 (Ala.Civ.App.1991); Mangina v. Mangina, 585 So.2d 1383 (Ala.Civ.App.1991); Prestwood v. Prestwood, 523 So.2d 1071 (Ala.Civ.App.1988); Burns v. Burns, 473 So.2d 1085 (Ala.Civ.App.1985).

That the inheritance or gift property at issue in Durbin v. Durbin, supra, was acquired before the marriage was not critical to that decision. That portion of Durbin v. Durbin, addressing the treatment of inheritance or gift property turns on the provision of this statute conditioning the inclusion of inheritance or gift property in the marital estate on the regular use of that property or its income for the common benefit of the parties during the marriage. Only that portion of Durbin v. Durbin addressing the treatment of property not acquired by inheritance or gift cites the acquisition of the property during the marriage as the statutory basis for including the property in the marital estate. Durbin v. Durbin, 818 So.2d at 402.

Addressing the treatment of the inheritance or gift property, the Durbin v. Dur-bin court states:

“It is undisputed that all of the husband’s stock in [Marshall Durbin Food Corporation (‘MDFC’) ] was acquired by inheritance or gift prior to the marriage and that it was not used for the common benefit of the parties during the marriage.
“... [T]he stock in the corporation— rather than the corporation itself — is the husband’s property. The husband’s MDFC stock should not have been considered in the division of marital property because it is the husband’s separate estate. The trial court could have found from the evidence that the husband drew a salary from MDFC and received other ‘perks’ as additional compensation — not as a consequence of his owning stock in MDFC, but of his being employed by the corporation as its chief executive officer.
“Section 30-2-51(a) states a single circumstance that, if found by the trial court, authorizes the court to treat non-marital property as marital property, namely: when the ‘property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.’ The trial court implicitly found that the § 30-2-51(a) circumstance was not present with respect to the husband’s MDFC stock, and that finding is fully supported by the record.”

Durbin v. Durbin, 818 So.2d at 400-01 (emphasis added), rev’d on other grounds, 818 So.2d 404.

In this case, the record is devoid of evidence that the husband’s gifted PELA stock or his PELA stock dividends were “used regularly for the common benefit of the parties during their marriage,” § 30-2-51 (a). Therefore, the trial court erred in considering the value of the husband’s PELA stock in dividing the marital property. Consequently, the division of martial property is so unsupported by the evidence as to be unjust and palpably wrong. Ex parte Drummond, supra. See also Ex parte Durbin, supra. Accordingly, we reverse the judgment of the Court of Civil Appeals insofar as it affirmed that aspect of the judgment of trial court dividing the marital property, and we remand this cause for further proceedings.

REVERSED AND REMANDED.

MOORE, C.J., and SEE, LYONS, BROWN, and WOODALL, JJ, concur.

STUART, J., concurs in the result.

HARWOOD, J., recuses himself.


text:
    James Wood LaMOREAUX v. Linda Lightfoot LaMOREAUX. Linda Lightfoot LaMoreaux v. James Wood LaMoreaux.
    2990299.
    Court of Civil Appeals of Alabama.
    Sept. 13, 2002.
    Robert F. Prince of The Prince Law Firm, P.C., Tuscaloosa, for appellant/cross-appellee James Wood LaMoreaux.
    Charles R. Malone of Malone, Brinyark & Nelson, P.C., Tuscaloosa, for appel-lee/cross-appellant Linda Lightfoot LaMo-reaux.
   On Remand From The Alabama Supreme Court

PER CURIAM.

A portion of this court’s prior judgment has been reversed and the cause remanded by the Alabama Supreme Court. Ex parte LaMoreaux, 845 So.2d 801 (Ala.2002). In compliance with the Supreme Court’s opinion, that portion of the trial court’s judgment dividing the marital property is reversed and the cause is remanded for the trial court to divide the marital property equitably without consideration of the husband’s PELA stock.

REVERSED AND REMANDED WITH INSTRUCTIONS.

All the Judges concur.


author: PITTMAN, Judge.

text:
    Leonard FREED et al. v. Henry H. COBB, Jr.
    2001129.
    Court of Civil Appeals of Alabama.
    March 8, 2002.
    Rehearing Denied June 28, 2002.

      J. Robert Faulk of McDowell, Faulk & McDowell, L.L.C., Prattville, for appellants.
    John F. DeBuys and Wilson F. Green of Burr & Forman, L.L.P., Montgomery; and William H. Brittain II and Alison L. Alford of Ball, Ball, Matthews & Novak, Montgomery, for appellee.
   PITTMAN, Judge.

Leonard Freed, George Creel, and Ronald Whirley sued Henry H. Cobb, Jr., alleging breach of contract and fraud, and requesting compensatory and punitive damages. Cobb filed a motion for a summary judgment, which the trial court granted. Freed, Creel, and Whirley (hereinafter collectively “the purchasers”) appeal only as to the summary judgment on the breach-of-contract claim. The purchasers appealed to the supreme court; that court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Rule 56(c)(1), Ala.R.Civ.P„ sets out a two-part standard for granting a summary judgment. The trial court must determine (1) that there is no genuine issue as to any material fact and (2) that the moving party is entitled to a judgment as a matter of law. See Hinkle v. Burgreen Contracting Co., 678 So.2d 797, 799 (Ala.Civ.App.1996). Furthermore, to defeat a properly supported motion for summary judgment, the nonmovant must present “substantial evidence” to support the claim. § 12-21-12, Ala.Code 1975. Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In determining whether substantial evidence exists to defeat a summary-judgment motion, a court must view the evidence in a light most favorable to the nonmoving party. Goodwin v. City of Fultondale, 706 So.2d 766, 767 (Ala.Civ.App.1997).

Cobb owned an apartment complex in Montgomery. He had been negotiating with a prospective buyer of the complex, but the negotiations failed. The purchasers approached Cobb about purchasing the complex. On September 5, 1996, the purchasers and Cobb entered into a sales contract pursuant to which the purchasers would buy the complex for a sales price of $500,000 — $150,000 at closing and a $350,000 purchase-money mortgage in favor of Cobb. The contract was contingent upon the purchasers obtaining a $300,000 loan from People’s Bank for improvements to the property. The purchasers notified Cobb that the bank would lend them the $300,000 only on the condition that Cobb subordinate his mortgage to that of the bank. On September 20, 1996, Cobb and the purchasers executed the following addendum to the sales contract:

“FOR VALUABLE CONSIDERATION, hereby received and acknowledged, Henry H. Cobb, Jr., as Seller does hereby covenant and agree that he will subordinate the mortgage to be executed in favor of Henry H. Cobb, Jr. under the terms of said sales contract to the construction loan in favor of Peoples Bank and Trust Company to be used for remodeling of the premises being purchased therein.”

(Emphasis added.) Cobb then presented another addendum to the contract that changed the payment terms of the September 5, 1996, sales contract and provided for monthly payments on the amount owed to Cobb. The September 5, 1996, contract originally provided that the amount owed Cobb would be paid in a payment due 36 months after the sale, i.e., a “balloon” payment. Creel and Whirley signed the second addendum, but Freed refused to do so. Cobb refused to sell the complex to the purchasers, and the purchasers filed this lawsuit.

Cobb argued in his summary-judgment motion that the failure of all the purchasers to agree to the second addendum to the contract indicated that there was no meeting of minds as to the consideration for Cobb’s promise to subordinate his mortgage to the bank’s mortgage. Therefore, Cobb contends that no valid contract existed and that the trial court properly entered the summary judgment for him on the purchasers’ breach-of-contract claim.

The purchasers argue that Cobb requested no new or additional consideration when he was presented with the first addendum to the contract. In other words, according to the purchasers, Cobb agreed to subordinate his mortgage in return for the purchasers’ keeping the payment terms in the original contract as consideration for his promise to subordinate. Therefore, the purchasers argue that the original contract and the first addendum constitute a valid contract, which, at most, contains an ambiguity as to the consideration for Cobb’s promise to subordinate his mortgage. The purchasers further argue that the trial court erred by entering a summary judgment for Cobb.

The elements of a valid contract are offer, acceptance, consideration, and mutual assent to its terms. Hargrove v. Tree of Life Christian Day Care Ctr., 699 So.2d 1242, 1247 (Ala.1997). Whether a contract contains an ambiguous term is a question of law. General Aviation, Inc. v. Aerial Services, Inc., 700 So.2d 1385, 1387 (Ala.Civ.App.1997). If the court concludes that an ambiguous term exists, then the finder of fact decides what the ambiguous term means. Mooney v. Henderson & Walton Women’s Center-East, Inc., 684 So.2d 1340, 1342 (Ala.Civ.App.1996).

We conclude that the original contract and the first addendum to the contract constitute a valid contract. The addendum unequivocally states that Cobb will subordinate his mortgage “under the terms of said contract” to the bank’s mortgage. Therefore, Cobb agreed to subordinate his mortgage to the bank’s mortgage and agreed to the same payment terms contained in the original contract as manifested by the use of the phrase “under the terms of said contract.” When Cobb presented the purchasers with second addendum, he was attempting to alter the payment terms already agreed to in the original contract and in the first addendum. Freed, one of the purchasers, refused to assent to the change in payment terms. Cobb argues that Freed’s refusal to assent to the change in payment terms evidences a lack of meeting of the minds as to the consideration for his promise to subordinate the mortgage. We disagree. Cobb was, in fact, attempting to form a new contract with new payment terms. The purchasers were not required to assent to the new payment terms, and one of the purchasers refusal to assent does not invalidate the already valid contract (formed by the original contract and the first addendum).

The trial court erred by entering a summary judgment for Cobb. The trial court’s judgment is reversed and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., concurs.

CRAWLEY, THOMPSON, and MURDOCK, JJ., concur in the result.


author: HARWOOD, Justice.

text:
    Ex parte Henry H. COBB, Jr. (In re Leonard Freed et al. v. Henry H. Cobb, Jr.)
    1011892.
    Supreme Court of Alabama.
    Sept. 13, 2002.
    John F. DeBuys, Jr., and Wilson F. Green of Burr & Forman, L.L.P., Birmingham; and William H. Brittain II and Alison L. Alford of Ball, Ball, Matthews & Novak, Montgomery, for petitioner.
    J. Robert Faulk of McDowell, Faulk & McDowell, L.L.C., Prattville, for respondents.
   HARWOOD, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

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


author: MURDOCK, Judge.

text:
    $3,011 IN UNITED STATES CURRENCY and John Alexander Robertson, Jr. v. STATE of Alabama.
    2000936.
    Court of Civil Appeals of Alabama.
    April 26, 2002.
    Rehearing Denied Sept. 13, 2002.

      John Paul Weber, Tuscaloosa, for appellant.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   MURDOCK, Judge.

On May 5, 2000, the State of Alabama, on the relation of the district attorney of the Sixth Judicial Circuit, filed a complaint in the Tuscaloosa Circuit Court requesting the trial court to declare $3,011 in United States currency to be contraband and to condemn and forfeit the currency, pursuant to § 20-2-98, Ala.Code 1975. That currency had been seized on April 25, 2000, by a law-enforcement officer during a search of premises located at 715-B Dogwood Lane in Tuscaloosa and a search of John Alexander Robertson, Jr., the alleged owner of the premises, incident to his arrest on drug-related charges. According to the State’s complaint, the money seized was “furnished or intended to be furnished ... in exchange for a controlled substance” in violation of Alabama laws concerning controlled substances, and the money was therefore to be forfeited.

Although Robertson had been placed in the Tuscaloosa County jail as a result of the arrest incident to the seizure of the currency at issue, the State attempted to serve a copy of the summons and complaint upon Robertson at 715-B Dogwood Lane in Tuscaloosa on May 9, 2000. That attempt was unsuccessful, and the sheriff noted on the return-of-service form that Robertson could not be served because Robertson did not reside at the address given. The trial court then sent notice to the State that the case would be set for dismissal on September 20, 2000.

In June 2000, Robertson was again arrested and was incarcerated in the Tuscaloosa County jail. The record indicates that this second arrest was incident to four criminal charges originally brought by the State against Robertson in 1995 and 1996, although the nature of those charges is unclear. On September 19, 2000, Robertson filed a motion in those cases seeking a temporary release from the Tuscaloosa County jail so that he could attend the birth of his child at a local hospital; a copy of that motion was served on the State by United States mail.

Also on September 19, 2000, the State filed an “alias summons” in the trial court, again directing that service on Robertson be made at 715-B Dogwood Lane in Tuscaloosa, despite his incarceration in the county jail. On the next day, September 20, 2000, the trial court entered a judgment of dismissal on the case action summary sheet in the forfeiture case, noting that no one had appeared that day to show cause why the case should not be dismissed for want of prosecution. However, the trial court later crossed out its judgment of dismissal and placed an entry on the case action summary sheet noting that the State had filed an alias summons and that the case would be continued for 60 days. However, the State’s second service attempt, like its first, failed, and the trial court again set the case for a hearing on its dismissal docket to take place on November 20, 2000.

On November 8, 2000, the State filed a motion to serve Robertson by publication. In support of its motion, the State filed an affidavit of the assistant district attorney for Tuscaloosa County, indicating that the State had been unable to perfect service of process, that Robertson’s current address was unknown to her, and that that address “[could not] be ascertained by reasonable diligence.” The trial court ordered that the State could serve Robertson by publication pursuant to § 28-4-286, Ala. Code 1975. Notice of the forfeiture proceeding was published in a general-circulation newspaper in Tuscaloosa County for four consecutive weeks on November 18, November 25, December 2, and December 9, 2000.

On December 18, 2000, an attorney for Robertson filed a notice of appearance in the forfeiture action, and the State was served with a copy of that notice. On January 12, 2001, Robertson filed a motion to quash service of process, to dismiss the action based upon the alleged insufficiency of process and the alleged insufficiency of service of process, and, alternatively, to reinstate the trial court’s judgment of dismissal for lack of prosecution. In that motion, Robertson averred, among other things, that he had been incarcerated since June 20, 2000; that he had appeared at various court proceedings at which personnel of the district attorney’s office had appeared; that his name had appeared on a list of inmates provided to the district attorney’s office; that that office had received various filings, including his September 19, 2000, request to be released to attend his child’s birth; that his location (i.e., the county jail) was “objectively capable of being ascertained”; and that service by publication was insufficient to sustain jurisdiction. That motion was served on' the State by United States mail.

On January 26, 2001, the State filed a motion for a default judgment, supported by an affidavit of the assistant district attorney. Although Robertson had appeared in the action and had moved to dismiss it, the State’s supporting affidavit stated that Robertson had “failed to answer or otherwise defend.” Moreover, the State’s motion was not served upon Robertson’s counsel, who had been of record for over a month at that time. On February 2, 2001, Robertson responded to the State’s motion and requested that the trial court deny it. However, at a hearing on February 22, 2001, the State withdrew its default-judgment motion; after that hearing, the trial court entered an order on the case action summary sheet noting that Robertson was “in jail” and directing the State to serve him within 30 days. Robertson was then served, and he filed an answer on March 19, 2001, denying that the currency was subject to forfeiture.

The trial of the case was set for April 26, 2001. Two days before the trial, Robertson filed a motion for a judgment on the pleadings (see Rule 12(c), Ala. R. Civ. P.), contending, among other things, that the 10-month delay between the action’s filing and service of process violated the provisions of § 20-2-93, Ala.Code 1975, in that the proceedings were not “promptly” instituted. Robertson’s motion relied principally upon State v. $17,636 in United States Currency, 650 So.2d 900 (Ala.Civ.App.1994). The trial court denied Robertson’s motion on April 26, 2001, before testimony was given; after an ore tenus proceeding, the trial court entered a judgment in favor of the State, awarding the currency to the State’s designee for law-enforcement purposes.

Robertson appeals, contending that the proceedings were not “promptly” instituted and that the evidence does not support the judgment declaring the currency forfeited. The State contends that Robertson’s issues were not preserved, as well as that the trial court’s judgment is legally correct. We note that where, as here, the trial court entered its judgment after hearing disputed oral testimony, the ore tenus standard applies to our review of the trial court’s findings of fact, and we will not disturb its judgment based on those findings unless those findings are plainly and palpably wrong and not supported by the evidence. Aetna Cas. & Sur. Co. v. Mitchell Bros., Inc., 814 So.2d 191, 194-195 (Ala.2001). The ore tenus rule does not, however, extend to cloak a trial judge’s conclusions of law or incorrect application of law to the facts with a presumption of correctness. Id.

Ala.Code 1975, § 20-2-93(a)(4), specifies that “[a]ll moneys ... furnished or intended to be furnished by any person in exchange for a controlled substance in violation of any law of this state” or “used or intended to be used to facilitate any violation of any law of this state concerning controlled substances” are subject to forfeiture. Under § 20-2-93(b), property subject to forfeiture may be seized by state, county, or municipal law-enforcement agencies; however, in the' event of such a seizure, § 20-2-93(e) provides that forfeiture proceedings “shall be instituted promptly ” (emphasis added).

The Alabama Supreme Court, in Reach v. State, 530 So.2d 40 (Ala.1988), explained the significance of the statutory promptness requirement:

“The mandate in the statute that forfeiture proceedings be instituted promptly is necessary to the statute’s constitutionality. See Kirkland v. State ex rel. Baxley, 340 So.2d 1121 (Ala.Civ.App.1976), cert. denied, 340 So.2d 1127 (Ala.1977). The statute contains no provision whereby the owner of a seized [article] may post a bond and secure the use of his [article] pending a hearing on the merits concerning the seizure. Indeed, § 20-2-93(d) provides:
“ ‘Property taken or detained under this section shall not be subject to replevin but is deemed to be in the custody of the state, county or municipal law enforcement agency subject only to the orders and judgment of the court having jurisdiction over the forfeiture proceedings.’ (Emphasis supplied.)
“In Kirkland, the Court of Civil Appeals held that the absence of a bond provision did not render the statute unconstitutional because the statute provided that proceedings ‘shall be instituted promptly.’ Kirkland, 340 So.2d at 1126 [ (emphasis added in Reach) ].
“ ‘Due process compels a balancing between the respective interests of the parties. The state is charged with the task of providing for the welfare of its citizenry. On the other hand, the individual citizen is entitled to enjoyment of his property which is to be interrupted only in accordance with the edicts of the Constitution. Here, the individual’s dominion over his property is only temporarily postponed pending the prompt initiation of judicial proceedings to determine the propriety of the seizure.’
“Kirkland, 340 So.2d at 1126-27. Inherent in the Kirkland court’s finding of constitutionality is the state’s adherence to the mandate that all forfeiture proceedings be instituted promptly. Thus, a forfeiture proceeding not ‘instituted promptly’ is ineffectual.”

Reach, 530 So.2d at 41; accord, Lightfoot v. Floyd, 667 So.2d 56, 66 (Ala.1995). As the Supreme Court noted in Lightfoot, “[w]hat is ‘prompt’ is decided on the facts of a given case, but a fairly short time frame,” i.e., less than 7 to 10 months, “is evident from the cases addressing the issue.” 667 So.2d at 66 (collecting cases).

In State v. $17,636, upon which Robertson principally relies, this court considered the question of what actions on the part of the State will be considered “institution” of forfeiture proceedings within the meaning of “shall be instituted promptly.” The facts of $17,636 closely resemble those in this present appeal. In $17,636, the currency at issue was seized in Jefferson County on January 5, 1989, at the time of the arrest of the claimant of the currency; after his arrest, the claimant was confined to the Jefferson County jail. In late February 1989, the State filed a petition seeking to have the currency forfeited to the State; that petition identified the claimant as living in California. Eight days after the petition was filed, the trial court directed the clerk to give notice of the proceeding in a local newspaper for three weeks; however, despite the claimant’s presence in the county jail, no effort was made by the State to effect personal service of the petition on the claimant. The trial court entered a final forfeiture judgment in June 1989, but set that judgment aside and dismissed the action when the claimant moved for relief from the judgment four years later.

Although the State appealed from the dismissal of the forfeiture action, claiming that it had complied with § 20-2-93, this court affirmed the trial court’s judgment of dismissal. We identified the pertinent question as being “whether ... the trial court erred when it dismissed the State’s forfeiture petition on the grounds that the State failed to meet the promptness requirement of § 20-2-93(e) due to the delay caused by the State’s failure to serve [the claimant] properly.” 650 So.2d at 901. We also noted that the trial court had determined that as a matter of due process, the State “ ‘had the affirmative duty of serving [the claimant] with a copy of the [forfeiture] petition ... by serving a copy of the petition on him when his whereabouts were known or readily ascertainable by the exercise of reasonable diligence,’ ” and that the State’s attorney in that case “‘could have easily ascertained that [the claimant] was incarcerated in the Jefferson County Jail and could have personally served him with a copy of [the] petition.’ ” Id.

Citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), and Robinson v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972), we agreed with the trial court that the issuance of publication notice was not reasonably calculated to apprise the claimant of the pending forfeiture action. 650 So.2d at 902. Further, we rejected the State’s argument that its failure to properly serve the claimant did not amount to a failure to comply with the prompt-institution requirement of § 20-2-93(c), noting that both the filing of an action with the appropriate court and the intention of having process served were required to “institute” forfeiture proceedings; we noted that the California address given for the claimant in the petition was not his current location and that the State “was either aware of that fact or could have easily ascertained that fact.” 650 So.2d at 903.

The State contends that Robertson has not preserved, for appellate review, any failure on its part to promptly initiate forfeiture proceedings because he accepted personal service after February 22, 2001, and because, the State says, there was no adverse ruling on the promptness issue. We disagree. As we have noted, Robertson, even after having accepted service of process after the trial court’s order of February 22, 2001, sought a judgment in his favor pursuant to Rule 12(c), Ala. R. Civ. P., on the basis that the State had not complied with the prompt-institution requirement of § 20-2-93(c). The trial court denied that motion before it heard evidence at an ore tenus hearing on April 26, 2001. The trial court’s adverse ruling on that motion is an “order[] or ruling of the trial court” as to which Robertson may seek review on appeal from the final judgment of forfeiture. See Rule 4(a)(1), Ala. R.App. P.; accord, Rule 3(c), Ala. R.App. P. (designation of judgment for review in notice of appeal shall not limit scope of appellate review).

The State also asserts that its filing of a forfeiture complaint 10 days after Robertson’s arrest and the seizure of the money in question is sufficient to fulfill § 20-2-93(c). In light of $17,636, we cannot accept the underlying premise of this argument, i.e., that mere filing of a complaint will fulfill the prompt-institution requirement in § 20-2-93(c). Indeed, the State appears to concede that $17,636 espoused the contrary position, but contends that $17,636 “should not be applied in this case” because, it says, Robertson’s acceptance of service “ ‘technically’ started the service of process anew” and “eliminated any argument [Robertson] had about not being served properly and promptly.”

As for the first of these contentions, we are at a loss to grasp the legal significance of Robertson’s having “accepted” service after February 22, 2001, which was approximately 10 months after the currency was seized. By that point, the State had made two unsuccessful attempts, in May 2000 and in September 2000, to serve Robertson personally at 715-B Dogwood Lane. However, the State knew or should have known in June 2000 and no later than September 19, 2000, when he filed a motion seeking a temporary release to be with his wife as she gave birth and served a copy of that motion on the State that Robertson had been incarcerated in the Tuscaloosa County jail. The State did not make any attempt thereafter to serve Robertson in a manner calculated to effect successful personal service until after the trial court’s February 22, 2001, order — five months later. As to the second contention of the State, whether a claimant happens to accept personal service many months after the State has seized allegedly forfeited property is irrelevant to the question whether the State, under the principles espoused in $17,636, actually instituted the proceedings in a timely manner.

As we have noted, the Supreme Court in Reach espoused the view that the prompt-institution-of-proeeedings requirement of § 20-2-93(c) is necessary to the constitutional exercise of the State’s power to interfere with the property rights of its citizens by seizing their property without the possibility of its release by the giving of a bond. The bare filing of a complaint seeking forfeiture, while a necessary component of instituting a forfeiture proceeding, does not alone constitute institution of such a proceeding. Instead, the State’s formal filing without undertaking reasonable efforts to effect personal service upon Robertson, whose location at the time was easily ascertainable by the State, implicates the same policy concerns enumerated in Reach. Thus, we must come to the same conclusion that we did in $17,636: that the State has not demonstrated that it had the requisite intention of having process served within a reasonable time after filing its forfeiture complaint.

We conclude that the trial court erred, as a matter of law, in denying Robertson’s motion for a judgment on the pleadings based upon the State’s failure to promptly institute the forfeiture action as to the currency at issue. We reverse the trial court’s judgment in favor of the State, and remand the cause for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

      . Subsection (h) of Ala.Code 1975, § 20-2-93, the statute governing controlled-substance forfeiture proceedings, incorporates by reference the procedures set forth in § 28-4-286 through § 28-4-290, which deal with forfeitures arising from violations of laws governing alcoholic beverages.

      . Robertson’s second issue, which concerns whether the trial court’s judgment was contrary to the great weight of the evidence presented at trial, is thus moot.