author: MURDOCK, Judge.

text:
    Tracy L. TURNER and Sherie J. Turner v. Bobby SELLERS, Jack Englebert, and Stanley Price.
    2011230.
    Court of Civil Appeals of Alabama.
    Oct. 24, 2003.

      Isaac P. Espy of Espy, Nettles, Scogin & Brantley, P.C., Tuscaloosa, for appellants.
    William J. Donald III of Donald, Randall & Donald, Tuscaloosa, for appellees.
   MURDOCK, Judge.

Tracy and Sherie Turner appeal from an adverse decision by the Tuscaloosa Circuit Court in their suit for declaratory and injunctive relief against Bobby Sellers, Jack Englebert, and Stanley Price, who, as the members of the Architectural Control Committee (“the Committee”) of the Maxwell Crossing Subdivision (“the subdivision”), prohibited the Turners from building an accessory building on their residential lot in the subdivision.

The Turners own and reside upon a lot in the subdivision that adjoins a lot owned and resided upon by Sellers. The lots in the subdivision are governed by restrictive covenants that are enforced by the Committee. In 2000, the Turners began building a house and other improvements on their property; the original plans called for constructing a garage/shop building on the side of their house near the boundary between their lot and Sellers’s lot. Sellers sued the Turners in the Tuscaloosa Circuit Court to enjoin the Turners from constructing the proposed garage/shop building. Finding that the proposed building would be in violation of two of the subdivision’s restrictive covenants, the circuit court, on May 24, 2001, issued an order permanently enjoining the Turners from building the proposed garage/shop building. The Turners did not appeal that decision.

Subsequently, in November 2001, the Turners submitted another proposal to the Committee for approval of an accessory building that the Turners intended to use as a playroom for their children and as a storage room. The building was to be constructed with the same materials as the house, was to be heated and cooled by the existing house’s air system, and was to be accessed from their house by a covered, but open, walkway approximately 10 feet wide. The roof covering the walkway was to extend from the existing house’s roof to the roof of the proposed building. The Committee denied approval of the proposal on the ground that it involved the construction of an accessory building that would violate paragraph 6 of the subdivision’s restrictive covenants.

Paragraph 6 of the restrictive covenants provides:

“(6) ACCESSORY BUILDINGS. Any building including but not limited to a pump house, or storage area must be of a permanent nature, and must be kept in good repair. Approval as to the materials and placement of said buildings must be granted by the Architectural Control Committee. No roll-type roofing or tin may be used for exterior finish. All such outbuildings, including detached garages, shall be located to the rear of any residential buildings located on the lot. No trailer, basement, tent, shack, garage, barn, or other outbuilding of a temporary character shall be erected or used on any lot unless first approved in writing by the Architectural Control Committee.”

(Emphasis added.) The Committee determined that the proposed building violated paragraph 6 because it would not be built “to the rear of’ the Turners’ residence.

The Turners filed suit against the Committee members on December 19, 2001, seeking a declaration that they had a right to construct the proposed building and seeking an injunction to prevent the Committee from interfering with such construction. Evidence was presented ore tenus; the parties stipulated that the only issue before the trial court was “whether the proposed structure is in violation of the Maxwell Crossing restrictive covenants, specifically whether it is prohibited by Paragraph 6.” The Turners presented evidence at the trial that indicated that locating the accessory building to the rear of their residence would be difficult because there is a significant drop-off in elevation behind their house. Nonetheless, the trial court determined that the proposed addition violated paragraph 6 of the restrictive covenants because the addition was not an “integral part of the residence” and, therefore, was an accessory building/outbuilding. The trial court also held that the Committee had not been arbitrary or capricious in disapproving the proposal and that the Turners were not entitled to relief under the “relative hardship” test. The Turners appeal.

“Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment.”

American Petroleum Equip. & Constr., Inc. v. Fancher, 708 So.2d 129, 132 (Ala.1997) (citations omitted).

The Turners take two positions on appeal: (1) paragraph 6 does not apply to the addition they proposed, and (2) even if paragraph 6 does apply, they are entitled to equitable relief from the restrictive covenant based on the “relative hardship” test.

With regard to their first position, the Turners initially contend that the restriction in the fourth sentence of paragraph 6 — that “such outbuildings” must be “to the rear of’ the residential building — does not apply to permanent structures, such as that which they propose to build. The Turners argue that the reference in the fourth sentence to “such outbuildings” is a reference to the type of outbuilding referenced in the fifth and last sentence of paragraph 6, namely, “outbuilding[s] of a temporary character.” The Turners add that paragraph 6 should be read in such a fashion because, they point out, “in construing restrictive covenants, all doubts must be resolved against the restriction and in favor of free and unrestricted use of property.” Hines v. Heisler, 439 So.2d 4, 5 (Ala.1983).

While it is true that ambiguous language in restrictive covenants should be resolved against the restriction, it also remains true that “where there is no ambiguity in the language of the restrictive covenant in question, that language-is enti-tied to be given the effect of its plain and manifest meaning.” Tubbs v. Brandon, 374 So .2d 1358, 1361 (1979). A plain reading of paragraph 6 does not yield the interpretation urged upon us by the Turners.

The title and the subject of paragraph 6 is “Accessory Buildings.” The trial court reasonably could have concluded that the buildings discussed in paragraph 6 are considered to be “accessory buildings,” even though no formal definition of that term is provided in the restrictive covenants. The first sentence following the title dictates that “[a]ny building including but not limited to ... a storage area must be of a permanent nature.... ” The Turners admit that their proposed building is to be used in part as a storage area for their children’s belongings, and it is not disputed that it is a permanent structure. From those facts and the fact that the proposed building is not an integral part of the residence, the trial court reasonably concluded that the Turners’ proposed building is an “accessory building.”

Paragraph 6 subsequently states that “[a]U such outbuildings ... shall be located to the rear of any residential buildings located on the lot.” (Emphasis added.) “All such outbuildings” clearly refers back to a previous sentence of paragraph 6, in this case the first sentence. Thus, a plain reading of paragraph 6 to this point indicates that, in general, the term “outbuilding” is simply another term for an “accessory building,” and that the Turners’ permanent accessory building, like all other outbuildings, would be subject to the “to the rear” restriction.

The final sentence of paragraph 6 provides nothing to contradict this interpretation. That sentence states that “[n]o trailer, basement, tent, shack, garage, barn, or other outbuilding of a temporary character shall be erected or used on any lot unless first approved in writing by [the Committee].” (Emphasis added.) Rather than defining “outbuildings” in general, as the Turners suggest, the last sentence of paragraph 6 focuses on a subclass of outbuildings, those “of a temporary character.” Recognizing the different nature of those temporary outbuildings in comparison to the outbuildings “of a permanent nature” discussed in previous sentences of paragraph 6, the last sentence dictates that those temporary outbuildings may not be erected or used at all without approval in writing from the Committee; whereas, construction of permanent outbuildings merely requires Committee approval of the “materials and placement of said buildings.”

While paragraph 6 thus delineates exactly what aspects of both permanent and temporary accessory buildings the Committee must approve, it leaves no doubt that “[a]ll such outbuildings” must be located “to the rear of any residential buildings.” (Emphasis added.) The result is that a plain reading of paragraph 6 restricts the building of accessory buildings like the one proposed by the Turners “to the rear of’ the residential building on their lot.

In an “alternative” argument, the Turners point out that the “to the rear” restriction applies specifically to “[a]ll such outbuildings, including detached garages ....” (Emphasis added.) They contend, therefore, that the “to the rear” provision of paragraph 6 was intended to refer only to “detached” structures. They argue that the accessory building they propose to construct will be “attached” to the main residence and is therefore not subject to this provision.

However, there is nothing inherent in the terms accessory building or outbuilding, or in their use in paragraph 6 of the restrictive covenants, that dictates that those terms must refer only to buildings completely detached from the main residential building.

Further, the fact that “detached garages” are “included” in the kind of buildings considered accessory buildings for purposes of the “to the rear” provision does not mean that only detached buildings qualify as accessory buildings. Our Supreme Court has explained that the word “including” generally “is not to be regarded as limitational or restrictive, but merely as a particular specification of something to be included or to constitute a part of some other thing....” Sims v. Moore, 288 Ala. 630, 635, 264 So.2d 484, 487 (1972).

In their brief on appeal to this court, the members of the Committee note that the proposed building will be located on the same concrete slab that was poured for the placement of the outbuilding that was rejected by the trial court in the first lawsuit. They argue that the proposed building will be structurally independent from the Turners’ existing residential building and that it will share no common walls or doors with the existing residential building. Moreover, they argue that

“attachment or detachment is not the issue here. The generally accepted definition of an ‘accessory building’ or ‘outbuilding’ (Paragraph 6 uses these terms synonymously), for purposes of setback or building location restrictions contained in restrictive covenants or zoning ordinances, is a building standing apart from but appurtenant to or adjoining a dwelling or other main building and whose use is incidental to or in connection with the main building. See, Bruce v. McClees, [110 N.J.Eq. 92, 158 A. 849 (1932)]; Daughters of St. Paul, Inc. v. Zoning Board of Appeals, [17 Conn.App. 53, 549 A.2d 1076 (1988)]; Marengo Hills, Inc. v. Watson, 368 So.2d 856 (Ala.1979); Firth v. Marovich, [160 Cal. 257,] 116 P. 729 (1911); Words & Phrases, ‘Accessory building,’ ‘Outbuilding.’ This definition fits precisely the Turners’ proposed accessory building.”

The members of the Committee conclude their argument as to this issue by contending that:

“[A]n accessory building or outbuilding does not lose its character as such for purposes of the applicable setback or building location restrictions, merely because it has been attached to the main building by, for example, the construction of a covered breeze way, particularly where the motivation for such construction is to circumvent the applicable restrictions. See Daughters of St. Paul, Inc. v. Zoning Board of Appeals, supra; Kamp v. Stebens, 517 N.W.2d 227 (Iowa App. 1994) (holding garage was ‘accessory structure’ in violation of zoning ordinance and not a part of the house where connecting ‘breeze way’ was not obvious subterfuge to circumvent zoning restrictions).”

The trial court held as follows:

“After reviewing paragraph six of the restrictive covenants, the Court holds that it is not ambiguous, and prior approval of the location of [the Turners’] building would have to be secured by the Architectural Control Committee, unless the proposed building is part of the residence.
“Considering the law cited, it is the opinion of this court that any appellate court of the state of Alabama would determine that the building is not an integral part of the residence. This court holds that the building is an accessory building as contemplated by paragraph six of the restrictive covenants, and subject to said paragraph six.”

We conclude that the record before us supports the conclusions reached by the trial court, and we likewise reject the Turners’ “alternative” argument as to paragraph 6.

Finally, the Turners take the position that, even if the restrictive covenant listed in paragraph 6 prohibits their proposed building, they are entitled to relief from the restrictive covenant under the “relative hardship” test.

“Under [the relative-hardship] test a covenant will not be enforced if to do so would harm one landowner without substantially benefiting another landowner....
“ ‘Broadly speaking, the enforcement of building restrictions is governed by equitable principles, and will not be decreed if, under the facts of the particular case, it would be inequitable and unjust....
“ ‘The equitable enforcement of a restriction can be invoked only for the purpose of protecting the benefit which it was the object of the covenant to afford. If the restrictive covenant has ceased to have any beneficial or substantial value to the ... property, it can form no ground for equitable relief.... [I]f the defendant will be subject to great hardship or the consequences would be inequitable, relief will be denied.’ ”

Lange v. Scofield, 567 So.2d 1299, 1302 (Ala.1990) (quoting 20 Am.Jur.2d Covenants, Conditions, & Restrictions § 313, at 876-77 (1965)).

The Turners point out that the trial court found that “[tjhere is a significant drop-off of elevation behind the [Turners’] home, and hauling in enough dirt to level the terrain, so that the building could be located there, would be cost prohibitive.” That being the case, the Turners contend that the restrictive covenant requiring that accessory buildings must be “to the rear of’ their home causes great hardship to the unrestricted use of their land. Furthermore, the Turners contend, the only evidence presented at trial concerning the benefits of this restrictive covenant came from the testimony of Sellers, who testified that the accessory building would be very close to his property and conceivably could produce a lot of noise, which reduces property values. They argue that this evidence does not sufficiently outweigh the hardship of being prevented from using their property in the manner they wish.

However, as the trial court observed, the equity of permitting relief from the restrictive covenant in this case must be evaluated in broader terms than just its effect on the adjacent landowner, Sellers. Paragraph 6, along with all of the other restrictive covenants, applies to the entire subdivision and is intended to control the development of the neighborhood. In this way, the restrictive covenant in question benefits the entire subdivision. The Turners knew that there were restrictions on the free use of their lot when they purchased it. To date, the trial court found, the Committee has not allowed any other variances from the restrictive covenants. Should an exception be permitted in this case, there would be no reason why neighbors who have similar drop-offs in the back of their properties should not be given similar relief from the restrictive covenant, thereby defeating the purpose of having the restrictive covenants. Moreover, the weight of Sellers’s testimony regarding the effect such an accessory building would have upon his property is a matter best left to the trial court. See, e.g., Ex Parte Golden Poultry Co., 772 So.2d 1175, 1177 (Ala.2000) (“The Court of Civil Appeals is authorized to determine whether the trial court’s decision is supported by sufficient evidence, but it is not authorized to independently weigh the evidence.”). There was sufficient evidence presented for the trial court to determine that it would be inequitable to grant the Turners relief from the restrictive covenant in question because of the harm it could do to the subdivision in general and to Sellers’s property in particular.

Because a plain reading of the restrictive covenant in question prohibits the accessory building from being located as proposed by the Turners, and because the Turners are not entitled to relief from that restrictive covenant under the “relative hardship” test, we affirm the judgment of the trial court entered in favor of the Committee members and against the Turners.

AFFIRMED.

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

      . The Turners completed the “pouring” of the foundational "slab” for the proposed garage/shop building before the injunction was entered.


source: Caselaw Access Project

license: Public Domain

text:
    STATE HEALTH PLANNING AND DEVELOPMENT AGENCY v. BROOKWOOD HEALTH SERVICES, INC., d/b/a Brookwood Medical Center, et al. HealthSouth Corporation v. Brookwood Health Services, Inc., d/b/a Brookwood Medical Center.
    2020152 and 2020153.
    Court of Civil Appeals of Alabama.
    Oct. 31, 2003.
    Mark D. Wilkerson and Keith S. Miller of Brantley, Wilkerson & Bryan, P.C., Montgomery, for appellant State Health Planning and Development Agency.
    Peck Fox, N. Lee Cooper, and T. Louis Coppedge of Maynard, Cooper & Gale, P.C., Montgomery; G. Dennis Nabors of Nabors & Belser, Montgomery; Derrell Fancher of Fancher & Green, LLP, Clan-ton; and Loree Skelton of HealthSouth Corporation, Birmingham, for appellant HealthSouth Corporation.
    John T. Mooresmith, John C. Morrow, and Cary Tynes Wahlheim of Burr & For-man, LLP, Birmingham, for appellee Brookwood Health Services, Inc.
   MURDOCK, Judge.

The motion to dismiss filed by Brook-wood Health Services, Inc., d/b/a Brook-wood Medical Center, is granted. The appeals are hereby dismissed as moot, on the authority of Auburn Medical Center, Inc. v. East Alabama Health Care Authority, [Ms. 2010786, September 26, 2003] — So.2d -(Ala.Civ.App.2003).

APPEALS DISMISSED.

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


text:
    MOBILE COUNTY v. Claude MIZELL.
    2011080.
    Court of Civil Appeals of Alabama.
    Oct. 31, 2003.

      Mark J. Everest of Galloway, Smith, Wettermark & Everest, L.L.P., Mobile, for appellant.
    Donald C. Patridge, Mobile, for appellee.
   MURDOCK, Judge.

This is an appeal from a judgment entered by the Mobile Circuit Court in favor of the employee, Claude Mizell, in a workers’ compensation case. The employer, Mobile County (“the County”), argues that it should not be liable for payments under Alabama’s Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”), because, it argues, Mizell’s injury is a preexisting physical ailment. However, the trial court found that Mizell was able to perform his duties before the on-the-job accidental injury and that, therefore, there was no “preexisting condition” for purposes of the Act. See Ingalls Shipbuilding Corp. v. Cahela, 251 Ala. 163, 36 So.2d 513 (1948).

The trial court found that Mizell was permanently and totally disabled as a result of the on-the-job injury. The trial court therefore awarded Mizell permanent total disability benefits under the Act. We find that there is substantial evidence to support the trial court’s findings regarding the injury and the preexisting condition, and we affirm the decision of the trial court with the exception of its calculation of the fees due to Mizell’s attorney and the resulting amount of compensation to be paid to Mizell.

Mizell was working as a road-grader operator for the County on September 21, 1999, when the grader ran over a tree stump and Mizell was thrown headfirst into the vehicle’s windshield, knocking him unconscious. The accident was sufficiently violent to break the blade of the road grader. As a result of this accident, Mizell suffered injuries to his head, neck, and shoulder.

The parties stipulated that the injuries arose out of and in the course of Mizell’s employment with the County and that Mi-zell properly notified his employer of the accident. The parties further stipulated that Mizell had reached maximum medical improvement; that the physician authorized by the County pursuant to the Act had assigned a 4% permanent impairment rating to Mizell’s body as a whole as a result of the accident; and that Mizell was permanently and totally disabled following the accident. The parties also stipulated that Mizell’s average weekly wage was $575 and that, if he was found totally disabled, his rate of compensation would be $383.35 a week, which is two-thirds of his average weekly wage. They further agreed as to the amounts the County had paid Mizell under its injured-with-pay program for temporary total disability benefits under the Workers’ Compensation Act and for medical benefits.

For many years, Mizell has suffered from a debilitating progressive disease known as “thoracic kyphosis,” a curvature of the spine that causes him significant pain and discomfort. However, the trial court found that this condition had not prevented Mizell from performing his job duties satisfactorily up to and including the day of the accident. In addition to Mizell’s own testimony, Ronald Roberts, Mizell’s supervisor, testified that Mizell was an excellent employee, that Mizell worked at his job with no physical restrictions or special accommodations, and that Mizell missed fewer workdays than other employees.

The County was well aware of Mizell’s chronic condition. He had operated a road grader satisfactorily for many years, and he had done so for several years while wearing a back brace to work. Operating the road grader, Mizell maintained approximately 14 miles of roads in the County by himself. On cross-examination, Mizell testified:

“A: I made my day just like everybody else.
“Q: Okay. But your day was a little different from everybody else[’s], wasn’t it?
“A: Because I had the backache, that’s all.
“Q: Right.
“A: Because I worked just as hard and graded more roads than any other man in there. My boss will tell you that.
“Q: I don’t doubt that one bit. But you had to work a little harder because of the back pain, didn’t you?
“A: Yes, sir.”

The trial court found that following the accident Mizell was no longer capable of performing the duties required by his job. Roberts testified that Mizell had made a sincere but unsuccessful effort to return to work. Mizell testified that he was unable to return to his duties after the accident because of severe pain.

Mizell had been receiving treatment for the thoracic kyphosis for some time from Dr. Viorel Raducan, an orthopedic surgeon at the University of South Alabama. Dr. Raducan never assigned Mizell any work or activity restrictions because of his condition. Dr. Raducan did recommend spinal fusion as a possible course of treatment, but Mizell did not wish to have surgery. Approximately one month before the accident, Dr. Raducan noted that Mi-zell “may need to look into alternative sources of income if he finds himself .unable to proceed with the demands of his job” and recommended that Mizell inquire into applying for disability benefits.

On the day before the accident, Mizell did apply for disability retirement from the Retirement Systems of Alabama, but he testified that he did so only to see what the payments might be. He testified that he wanted to receive his full retirement based on 25 years of service rather than take disability retirement and that he had applied for disability retirement only because he wanted to determine the difference between what he would receive as regular-retirement benefits and what he would receive as disability-retirement benefits. Mizell was never determined to be “disabled” or otherwise incapacitated before the accident.

Mizell continued to seek treatment from Dr. Raducan following the accident, and the doctor found that the accident did exacerbate Mizell’s previous symptoms. Dr. Raducan could form no conclusion as to whether the exacerbation was temporary or permanent, but he did state that the exacerbated symptoms, including additional pain and discomfort, were consistent with the injuries Mizell sustained in the September 21 accident.

The approved treating physician for Mi-zell’s injuries was Dr. Russell Hudgens, a board-certified orthopedic surgeon. Dr. Hudgens testified that, to a reasonable degree of medical certainty, Mizell had suffered permanent impairment of 4% to his body as a whole as a result of the accident. Dr. Hudgens noted that Mizell’s complaints of pain were consistent with the injuries Mizell incurred as a result of the accident and that Mizell continued to experience pain more than two years after the accident.

Dr. Hudgens obtained a magnetic resonance imaging scan that revealed a bulging disk in Mizell’s neck, which Dr. Hudgens stated was consistent with both the accident and Mizell’s complaints of pain. As a result, Dr. Hudgens testified that if Mizell were working up to the time of the accident, then the injuries resulting from the accident had accelerated Mizell’s symptoms so that he was not able to return to work.

Based on the testimony and evidence presented, the trial court found as follows:

“The court finds that the Plaintiff, as a proximate result of injuries suffered on September 21, 1999, arising out of an in the course of his employment, has sustained a permanent physical impairment to his body as a whole. While the physical disability assigned to the Plaintiff by his treating physician for this particular' injury is less than one hundred percent (100%), a finding of physical disability of the body as a whole does not necessarily coincide with loss of ability to earn in the same percentage. The court finds that the Plaintiff, as a consequence of his disability and physical restrictions, is permanently unable to return to his pri- or employment, and as a consequence of his age, education, work skills, and physical disability, is unable to be retrained for gainful employment. As such, the court finds that the Plaintiff has sustained a total loss of earning capacity and is permanently and totally disabled from gainful employment within the meaning of the State of Alabama [Workers’] Compensation Act.”

The standard of review in a workers’ compensation case was stated by our Supreme Court in Ex parte Trinity Industries, Inc., 680 So.2d 262 (Ala.1996):

“[W]e will not reverse the trial court’s finding of fact if that finding is supported by substantial evidence-if that finding is supported by ‘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.’ ”

680 So.2d at 268-69 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)); see also § 25-5-81 (e)(2), Ala.Code 1975 (providing that “[i]n reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence”). Our review of legal issues shall be without a presumption of correctness. “In reviewing the standard of proof set forth herein and other legal issues, review ... shall be without a presumption of correctness.” § 25-5-81(e)(1).

There is substantial evidence supporting the trial court’s findings of fact regarding both the extent of Mizell’s injuries and disability following his workplace accident and the extent of his preexisting condition, i.e., the thoracic kyphosis. The County argues that it is being held liable for Mizell’s preexisting illness contrary to the provisions of §§ 25-5-57(a)(4)e. and 25-5-58, Ala.Code 1975; however, the evidence indicated that Mizell was able to perform his duties for his employer before the accident, despite his condition. See Kimbrell v. White, 863 So.2d 105, 116 (Ala.Civ.App.2003) (holding that an employee should not be deemed to suffer from a preexisting infirmity for purposes of § 25-5-57(a)(4)e. and § 25-5-58, Ala.Code 1975, if the previous infirmity “ ‘has not demonstrated itself as disabling and has not prevented the employee from performing his job in a normal manner’ ” (quoting Holt v. Dunlop Tire Corp., 646 So.2d 74, 76 (Ala. Civ.App.1994))). Further, the trial court noted in its order that the County presented no evidence as to the percentage of impairment that it alleged might have existed before the injuries as a result of the thoracic kyphosis. Based on the record presented, we cannot say that the trial court did not have before it substantial evidence to support its judgment awarding Mizell benefits for a permanent total disability arising out of and in the course of his employment.

The only error in the trial court’s order was the way in which it calculated the attorney fees to be paid out of the future-compensation component of the award. Section 25-5-83, Ala.Code 1975, provides:

“By agreement of the parties and with approval of the court, the amounts of compensation payable periodically, under this article and Article 4 of this chapter, may be commuted to one or more lump sum payments. No commutation shall be approved by the court unless the court is satisfied that it is in the best interest of the employee or the employee’s dependent, in case of death, to receive the compensation in a lump sum rather than in periodic payments. In making the commutations, the lump sum payment shall, in the aggregate, amount to a sum equal to the present value of all future installments of compensation calculated on a six percent basis.”

In Ex parte St. Regis Corp., 535 So.2d 160 (Ala.1988), our Supreme Court explained the proper method of calculating an attorney fee on future benefits where, as here, the disabled employee’s compensation is to be paid to him in periodic payments over the course of his life:

“[WJhen the employer elects not to pay the full award of compensation in a lump sum, and the trial court orders a lump sum payment of the attorney fee (which represents up to 15% of the award), the provisions of § 25-5-83 providing for computation of present value are fully applicable to this part of the award.
“In the instant case, the trial court found that the employee had a life expectancy of 40.46 years, or 2111.145 weeks, and that the employee was entitled to weekly benefits in the amount of $194.00. Using the statutory annual discount rate of 6%, the present value of this payment stream is $153,801.50.
“Section 25-5-90 allows the trial judge to ‘fix the fee of the attorney for the plaintiff for his legal services and the manner of its payment, but such fee shall not exceed 15 percent of the compensation awarded or paid.’ (Emphasis added [in Ex parte St. Regis ].) In the present case, the ‘compensation awarded’ is either a present payment of $153,801.50 (if both the employer and the employee agree, with approval of the court), or an annuity of $194.00 per week for the rest of the employee’s life. The compensation awarded is not $408,160.48; nor is the award $194.00 per week multiplied by the employee’s life expectancy of 2111.145 weeks. (‘Life expectancy’ is used as a means of fixing a definite period of payment for computing the lump sum fee.)
“The trial court decided to award a lump sum attorney fee; this award is statutorily limited to 15 percent of $153,801.50, which is the aggregate award reduced to its present value, resulting in a maximum attorney fee award of $23,070.22. By virtue of § 25-5-90, the employee is entirely responsible for the payment of the attorney fee; thus, the present value of the fee — $23,-070.22' — is deducted from the present value of the aggregate of the payments — $153,801.50—leaving the employee’s ‘life expectancy award with a present value of $130,731.28.
“Because it is clear from the stipulation of the parties that the employee was receiving the maximum benefits prior to the initiation of the suit, we hold that the employee’s lawyer is not entitled to any fee for the benefits received by the employee before the date of trial. If the attorney had earned a fee on the benefits paid, however, this fee would have to be borne by the employee and deducted from the amount of the compensation awarded. For example, if we assume that the lawyer in the present case had earned a fee on the benefits already paid, and that his fee was $2968.20 (15 percent of $19,788.00), this $2968.20 would then have to be deducted from $130,731.28, further reducing the present value of the employee’s award to $127,763.08.
“Once the present value of the compensation awarded has been reduced by the amount of the attorney fee, this reduced amount is then used to calculate, at the 6 percent annual discount rate, the amount of weekly benefits the employee is entitled to during the period of his life expectancy. In the instant case, using the $130,731.28 present value, and extending it over 2111.145 weeks at the 6 percent annual discount rate, the employee is entitled to weekly benefits in the amount of $164.90 for the term of his life expectancy.”

Ex parte St. Regis Corp., 535 So.2d at 161-62 (last emphasis added; footnotes omitted).

Both parties in the present ease agree that the trial court erred in simply ordering that Mizell’s attorney fee “shall be deducted from future compensation due [Mizell] at the rate of $57.50 per week (15% of each periodic payment made to [Mizell] until the amount equivalent to [the attorney-fee award] has been reached).” (Emphasis added.) Instead, in accordance with the Supreme Court’s opinion in Ex parte St. Regis, the County is responsible for paying Mizell his weekly compensation, $383.35, reduced by 15% ($57.50), for a net payment of $325.85, “for the term of his life expectancy” of SO.6 years. Thereafter, Mizell would be entitled to receive the full $383.35 amount of compensation. See Ex parte St. Regis, 535 So.2d at 162.

In addition to the foregoing, on remand the trial court must take into consideration the fact that this case has been pending on appeal. In Ex parte St. Regis, the Supreme Court explained:

“The time periods utilized in this opinion were used as if the attorney fee was paid on the date the trial court entered its final judgment. Of course, the periods have changed during the pendency of this appeal. On remand, it is incumbent upon the trial court, with the aid of counsel, to determine the appropriate time period for calculating the present value, i.e., 2111.145 weeks less the number of weeks this case was on appeal. For the number of weeks this case was on appeal, the lawyer is entitled to a full 15 percent of the weekly benefits that were or should have been paid, without any reduction, because these payments have already accrued and are not due in the ‘future.’ ”

Ex parte St. Regis Corp., 535 So.2d at 163 n. 3. As in Ex parte St. Regis, the trial court in the present case, as part of its determination of the appropriate time period for calculating present value, must subtract the number of weeks this ease has been on appeal and, concomitantly, include in the fees awarded to counsel for Mizell a full 15% of the weekly benefits that were or should have been paid during the pen-dency of the appeal.

The trial court’s judgment as it relates to the award of an attorney fee is reversed, and the cause is remanded for the entry of a judgment calculating an attorney fee in accordance with Ex parte St. Regis. The judgment of the trial court is otherwise affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: THOMPSON, Judge.

text:
    DeLeisseline H. HALE v. Douglas V. HALE.
    2020637 and 2020638.
    Court of Civil Appeals of Alabama.
    Oct. 31, 2003.

      Amy A. Slayden, Huntsville, for appellant.

      Gary C. Huckaby and Scott Burnett Smith of Bradley Arant Rose & White, LLP, Huntsville, for appellee.
   THOMPSON, Judge.

DeLeisseline H. Hale (“the wife”) and Douglas V. Hale (“the husband”) were married on December 20, 1996. On September 21, 1999, the husband filed a complaint seeking a divorce from the wife based on incompatibility of temperament and irreconcilable differences; the husband attached a copy of the antenuptial agreement executed by the parties the day before they were married.

Regarding alimony in gross and moving expenses, the antenuptial agreement states, in pertinent part:

“If any of the following events shall occur during the marriage of the parties, namely, (a) the filing by either party of an action that results in a final divorce or a legal separation following a written request by the Husband to the Wife that he desires her to leave the residence at Lot 15, Governor’s Bend Subdivision, or any subsequent marital residence, in which they are both then residing (‘the marital residence’); (b) the filing by the Husband of an action resulting in a final divorce or legal separation while the Wife is still residing in the marital residence; then if any of the these events occur and no other events, the following lump sum shall be payable by the Husband ... to the Wife:
“(4) Between the second and third anniversary dates of their marriage, the lump sum of One Hundred Fifty Thousand and No/100th Dollars ($150,000);
“(5) Between the third and fourth anniversary dates of their marriage, the lump sum of Two Hundred Thousand and No/100th Dollars ($200,000);
“(6) Between the fourth and fifth anniversary dates of their marriage, the lump sum of Two Hundred Fifty Thousand and No/100th Dollars ($250,000);
“(7) Between the fifth and sixth anniversary dates of their marriage, the lump sum of Two Hundred Ninety Five Thousand and No/100th Dollars ($295,-000);
“It is the filing date in , subparts (a) and (b) ... that determines which paragraph (1) through (12) applies.
“In the event the Wife leaves the marital residence without the written request of the Husband for her to leave and a final divorce or legal separation filed by either party is rendered or in the event of a final divorce or legal separation filed by the Wife while living in the marital residence, then the sum payable by the Husband to the Wife in (2) through (12) above shall be one-half the stated amount....
“In the event the Wife should leave the marital residence for any reason resulting in a final divorce or legal separation, then the Husband shall pay the Wife’s moving expenses from the marital residence to her residence at 1413 California Street or a location of equal value and redecorated as needed by the Wife. The Husband will then pay the moving expenses from the temporary location to the Wife’s residence. If the Wife elects to relocate to another city, the Husband shall pay for the same.”

On November 9, 1999, the husband filed a motion for a summary judgment; in support of his motion, the husband submitted the pleadings and his own affidavit. On December 15, 1999, the wife filed a motion consenting to the trial court’s granting of the husband’s motion for a summary judgment.

Before the entry of the summary judgment, the husband’s attorney advised the trial court, by letter dated December 29, 1999, that the parties were attempting to reconcile and requested that the trial court withhold entering a judgment of divorce until January 5, 2000. The husband’s attorney advised the trial court, by letter dated January 4, 2000, that the attempted reconciliation had failed and requested that the trial court enter a judgment of divorce. However, before the trial court entered a judgment of divorce, the husband’s attorney advised the trial court, by letter dated January 13, 2000, that the parties were once again attempting to reconcile. The husband’s attorney again requested that the trial court withhold entry of a judgment of divorce based on his understanding from the husband that both the husband and the wife desired that the court withhold entering the judgment “for the time-being and ... place the case on the Administrative Docket while they attempt to save the marriage.” The letter further stated that “[i]t is understood that either party could request the case be removed from the Administrative Docket and restored to the Active Docket.”

Neither party moved to dismiss the pending divorce action or to restore it to the trial court’s active docket until March 13, 2002, at which time the husband filed a “Motion for Filing of Final Judgment or in the alternative for Restoration to the Active Docket.” In his motion, the husband alleged that the trial court had signed a divorce judgment on January 3, 2000, but that that judgment had never been filed with the clerk of the court; the husband requested that the trial court file that judgment with the clerk of the court. Alternatively, the husband requested that the pending action be restored to the trial court’s active docket. The husband also purported to amend his September 21, 1999, complaint, by filing a “Conditional Amended Complaint,” seeking a divorce from the wife based o,n incompatibility of temperament and irreconcilable differences; the husband attached a copy of the antenuptial agreement to his “Conditional Amended Complaint.”

On March 15, 2002, the wife filed a motion to dismiss the pending divorce action, alleging as the sole grounds for dismissal that the parties had reconciled and reconciliation of the parties to a pending divorce action abrogates the cause of action, and, therefore, she argued, the trial court had lost subject-matter jurisdiction over the proceedings, citing McNutt v. Beaty, 370 So.2d 998 (Ala.1979); Rikard v. Rikard, 387 So.2d 842 (Ala.Civ.App.1980); and James v. James, 369 So.2d 811 (Ala.Civ.App.1979). Regarding the issue of reconciliation, the husband argued that the parties had only attempted to reconcile and therefore, he argued, the pending divorce action should be restored to the trial court’s active docket. In a brief submitted to the trial court, the husband conceded that “[i]f the current action is dismissed and the [hjusband is required to file it again, the alimony [in gross] would be $295,000.”

On April 11, 2002, the trial court heard oral arguments and considered the affidavits and exhibits submitted by the parties. On April 18, 2002, the trial court entered a judgment dismissing the action without prejudice; implicit in its judgment was a factual finding that the parties had reconciled. See Grund v. Jefferson County, 291 Ala. 29, 277 So.2d 334 (1973) (where a trial court does not make specific findings of fact, appellate courts will presume that the trial court made such findings as will support its judgment). The husband did not appeal the April 18, 2002, judgment.

On April 23, 2002, the husband filed a new complaint, seeking a divorce from the wife based on incompatibility of temperament and irreconcilable differences; the husband attached a copy of the antenuptial agreement to his complaint. On May 16, 2002, the husband filed a motion for a summary judgment; in support of his motion, the husband submitted the pleadings and his own affidavit. The husband’s affidavit states, in part:

“3. [The wife] and I were married to each other on December 20, 1996 ... and lived together as Husband and Wife until, on or about March 1, 2002, when we effectually separated and have not lived together in the relationship of husband and wife thereafter.
“5. [The wife] and I have been highly incompatible with each other for over one (1) year next preceding the date of this Affidavit [May 16, 2002]....
“6. My wife and I entered into the Ante-Nuptial Agreement which is [attached] ... to my Complaint.... The Agreement provides for the distribution of our respective properties and all the other terms of a divorce.... ”

The wife filed a motion consenting to the trial court’s granting of the husband’s motion for a summary judgment. On August 9, 2002, the trial court entered a judgment divorcing the parties and incorporating by reference the antenuptial agreement.

On September 6, 2002, the husband filed a petition for a declaratory judgment, alleging, among other things, that a justicia-ble controversy existed as to the amounts the wife was entitled to receive as alimony in gross and moving expenses under the terms of the antenuptial agreement that had been incorporated into the final judgment of divorce. The husband further alleged that the wife had “failed and refused to vacate the ... [marital] residence in which [the husband] has sole ownership interest and the wife has no interest.” The husband requested, among other things, that the trial court enter a judgment finding that the wife was entitled to $150,000 as alimony in gross, that the wife was not entitled to moving expenses, and that the wife be ordered to vacate the marital residence.

On October 4, 2002, the wife filed a motion to dismiss the husband’s petition for a declaratory judgment and a “Petition for Injunctive Relief, Enforcement of Order and Rule Nisi.” In her motion to dismiss, the wife alleged that a justiciable controversy did not exist because, she claimed, among other reasons, that under the express terms of the antenuptial agreement incorporated in the divorce judgment, she was entitled to $295,000 as alimony in gross and the payment of her moving expenses. In her petition, the wife requested that the trial court enjoin the husband from requiring her to move from the marital residence until the husband paid her certain sums she claimed he owed her under the terms of the antenuptial agreement; the wife attached a copy of a letter from the husband, dated September 23, 2002, demanding that the wife vacate the marital residence within 10 days and that at the expiration of the 10-day time period, he would begin claiming monthly rent in the amount of $3,000 from her. In her petition, the wife claimed, among other things, that the husband had failed to pay her $295,000 in alimony in gross and had failed to pay her moving expenses as required under the express terms of the antenuptial agreement. On October 21, the husband filed a motion to dismiss the wife’s petition.

On October 28, 2002, the trial court heard oral arguments and considered the affidavits and exhibits submitted by the parties. Thereafter, the trial court entered an interlocutory order, awarding the wife $150,000 and ordering the husband to pay the wife $12,000 “for the purpose of permitting [the wife] to move from the marital residence in accordance with this order”; the trial court ordered that the wife vacate the marital residence on or before November 30, 2002, at 12:00 noon. The trial court specifically reserved its determination of the amount of alimony in gross the wife was entitled to receive under the terms of the antenuptial agreement and “all issues” concerning whether the wife was entitled to have her moving expenses paid for by the husband.

On March 10, 2003, the trial court entered a final judgment. Regarding the award of alimony in gross, the trial court found:

“As to the interpretation of the Ante-Nuptial Agreement regarding alimony in gross, the Court finds that the actions and conduct of the [wife] effected an estoppel in the year 2000, and thus the [wife] is entitled to the total sum of $200,000 as alimony in gross. As the Court has already entered an interlocutory order that the husband was due to pay the wife $150,000 in alimony in gross, and the same has been paid, the wife is entitled to the additional sum of $50,000 for alimony in gross.”

Regarding the wife’s moving expenses, the trial court found:

“[U]pon a careful reading of the Ante-Nuptial Agreement [the trial court] finds from the evidence that the conditions upon which the [wife] would be entitled to moving expenses have not occurred; therefore, the interlocutory allowance for moving expenses in the amount of $12,000 is not due to the wife and moreover there is no evidence to support the reasonable cost for such moving expenses, even if they were due under the Ante-Nuptial Agreement.”

The trial court found that “the [husband] is entitled to off-set the $12,000 paid on an interlocutory basis for moving expenses against the balance of alimony in gross declared due [to] the [wife].”

Regarding the husband’s claim for rent and utilities reimbursement (which appears to have been implicitly tried by the consent of the parties) and the wife’s claim for interest upon any unpaid portion of alimony in gross since the entry of the divorce judgment, the trial court found:

“The [husband] is entitled to reasonable rent and utilities from the [wife] during the period after the [wife] was requested to vacate the [husband’s] residence and that the reasonable rental value of the premises for said period greatly exceeds any interest which may be due to the [wife].”

Although the trial court did not include any calculations in its judgment, it found that the wife’s claim for interest was “offset against the claims of the husband for rent and utilities and [awarded] no sums ... to either party on their said claims.”

The wife appeals. This court consolidated the wife’s appeals from the declaratory-judgment action and the action on her petition for enforcement of the divorce judgment and rule nisi.

At the outset, we note that this court’s review of the application of law to undisputed facts is de novo. Fitts v. Stokes, 841 So.2d 229 (Ala.2002).

“[W]here a trial court does not receive evidence ore terms, but instead makes its judgment based on the pleadings, exhibits, and briefs, the ore terms standard’s presumption of correctness does not apply to the trial court’s factual findings and it is the duty of the appellate court to judge the evidence de novo.”

Ex parte Horn, 718 So.2d 694, 705 (Ala.1998). This court reviews questions of law de novo. Thompson Tractor Co. v. Fair Contracting Co., 757 So.2d 896, 398 (Ala.2000).

The wife contends that the trial court erred in failing to award her $295,000 in alimony in gross. Specifically, the wife argues that the express terms of the ante-nuptial agreement state that she was entitled to that amount because, she claims, the filing of the action that resulted in the final judgment of divorce occurred between the parties’ fifth and sixth wedding anniversary. The wife further contends that the trial court erred in determining that “the actions and conduct of the [wife] effected an estoppel in the year 2000, and thus the [wife] is entitled to ... $200,000 as alimony in gross.”

This case involves an antenuptial agreement, executed by the parties, that was incorporated into the divorce judgment. Once incorporated into a final judgment of divorce, an antenuptial agreement loses its character as a independent agreement and becomes part of the judgment. Ex parte Carstens, 728 So.2d 128, 134 (Ala.1998); Ex parte Owens, 668 So.2d 545, 545-47 (Ala.1995).

“[An antenuptial agreement] incorporated into a divorce judgment is construed in the same manner as any other contract. Sartin v. Sartin, 678 So.2d 1181 (Ala.Civ.App.1996). Whether a provision of a divorce judgment is ambiguous is a question of law to be resolved by the trial court. Wimpee v. Wimpee, 641 So.2d 287 (Ala.Civ.App.1994). The words of a judgment are to be given their plain and ordinary meanings, and the intentions of the parties are derived from them.... Vainrib v. Downey, 565 So.2d 647 (Ala.Civ.App.1990).”

Hallman v. Hallman, 802 So.2d 1095, 1098 (Ala.Civ.App.2001). Further, if the terms of the judgment are not ambiguous, they should be given their usual and ordinary meaning. McClure v. Cassady, 426 So.2d 430 (Ala.Civ.App.1982). The language contained in the antenuptial agreement (incorporated into the divorce judgment) stating that “the filing by the [hjusband of an action resulting in a final divorce” is plain and unambiguous. An unambiguous judgment must be enforced according to its terms. Jones v. Jones, 722 So.2d 768 (Ala.Civ.App.1998).

In the present case, it is undisputed that the filing of the action that resulted in the final judgment of divorce occurred on April 23, 2002, when the husband filed his second divorce action. That action was filed between the parties’ fifth and sixth wedding anniversary and, therefore, under the plain, unambiguous language of the antenuptial agreement, the wife is entitled to $295,000 in alimony in gross. Accordingly, unless the wife’s actions and conduct effected an estoppel in the year 2000, the judgment of the trial court is due to be reversed on this issue. Therefore, we now turn to the issue of estoppel to determine whether the doctrines of judicial estoppel or equitable estoppel are applicable to the facts in the present case.

In Ex parte First Alabama Bank, [Ms. 1020855, September 12, 2003] — So.2d -, - (Ala.2003), our Supreme Court “embrae[ed] the factors set forth in New Hampshire v. Maine [, 532 U.S. 742 (2001),] and join[ed] the mainstream of jurisprudence in dealing with the doctrine of judicial estoppel.” In Ex parte First Alabama Bank, our Supreme Court stated:

“The United States Supreme Court in New Hampshire v. Maine, 532 U.S. 742 (2001), recently observed that ‘ “[t]he circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle” ’ and then identified several factors as informative in determining the applicability of the doctrine of judicial estoppel. 532 U.S. at 750-51 (quoting Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir.1982)). The Court held that for judicial estoppel to apply (1) ‘a party’s later position must be “clearly inconsistent” with its earlier position’; (2) the party must have been successful in the prior proceeding so that ‘judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or second court was misled” ’ (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir.1982)); and (3) the party seeking to assert an inconsistent position must ‘derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.’ 532 U.S. at 750-51. No requirement of a showing of privity or reliance appears in the foregoing statement of factors to consider in determining the applicability of the doctrine of judicial estoppel.”

— So.2d at-.

In the present case, the husband argues that the wife should be judicially estopped from claiming that the September 21, 1999, filing date of the first divorce action should not be given effect under the antenuptial agreement because, he says, the wife essentially waived that right when she failed to seek a dismissal of the previous divorce action for over two years. However, the wife has not maintained a “clearly inconsistent” position as contemplated in Ex parte First Alabama Bank, supra. In the previous action, the wife contended as her sole grounds for dismissal that the parties’ reconciliation abrogated the cause of action, and the trial court entered a judgment dismissing the action. The wife has maintained that same position in the present case. Accordingly, we conclude that judicial estoppel does not apply to the facts of this case.

As to equitable estoppel, our Supreme Court has stated:

“ ‘To establish the essential elements of equitable estoppel, [a party] must show the following:
“ ‘(1) That “[t]he person against whom estoppel is asserted, who usually must have knowledge of the facts, communicates something in a misleading way, either by words, conduct, or silence, with the intention that the communication will be acted on;”
“ ‘(2) That “the person seeking to assert estoppel, who lacks knowledge of the facts, relies upon [the] communication;” and
“ ‘(3) That “the person relying would be harmed materially if the actor is later permitted to assert a claim inconsistent with his earlier conduct.” ’
“Lambert v. Mail Handlers Benefit Plan, 682 So.2d 61, 64 (Ala.1996), quoting General Electric Credit Corp. v. Strickland Div. of Rebel Lumber Co., 437 So.2d 1240, 1243 (Ala.1983).”

Allen v. Bennett, 823 So.2d 679, 685 (Ala.2001).

The husband argues that because the wife failed to seek a dismissal of the first divorce action for over two years, he believed the amount of alimony in gross awarded to the wife if the parties later divorced would be limited to $150,000 based on the September 19, 1999, filing date of the first divorce action. Alternatively, the husband argues that if the wife had moved to dismiss the first divorce action in 2000, and the trial court had granted that motion, he would have filed a new complaint for divorce in 2000, and the amount of alimony would have been set at $200,000. However, the husband’s argument is based on the premise that the parties had not actually reconciled during that time period.

As previously noted, the parties litigated the issue of whether the parties reconciled in the first divorce action. Implicit in the trial court’s judgment dismissing that first action was a finding that the parties had indeed reconciled. Even the husband conceded in his brief submitted to the trial court in the first divorce action that “[i]f the current action is dismissed and the [hjusband is required to file it again, the alimony [in gross] would be $295,000.” Additionally, the husband stated in his affidavit in support of his motion for a summary judgment in the second divorce action that “[the wife] and I were married to each other on December 20, 1996, ... and lived together as Husband and Wife until, on or about March 1, 2002, when we effectually separated and have not lived together in the relationship of husband and wife thereafter.” Any claim that the husband would have filed a new divorce action in the year 2000 is inconsistent with the parties’ reconciliation during that year and with his own admission that the parties were married on December 20, 1996, and lived together as man and wife until March 2002, when they separated.

We conclude that the husband did not rely on the actions of his wife in assuming that his alimony obligation would be fixed as of the filing date of the first divorce action or at some point during the year 2000. Rather, it appears that perhaps the husband did not fully appreciate the legal effect of the parties’ reconciliation after the filing of the first divorce action. Accordingly, we conclude that the doctrine of equitable estoppel does not apply to the facts of this case. Therefore, we conclude that the trial court erred in determining that the wife’s actions and conduct in the year 2000 effected an estoppel in the year 2000.

The wife also contends that the trial court erred in failing to award interest on the portion of unpaid alimony in gross since the entry of the divorce judgment on August 9, 2002, citing § 8-8-10, Ala.Code 1975. That section provides, in pertinent part, that “judgments shall bear interest at the rate of 12 percent per an-num.” Although the trial court found that the wife “may” be entitled to such interest, it offset her claim for interest against the husband’s claim for rent and utilities and did not make an award to the wife with regard to her claim for interest on the judgment. We conclude that pursuant to § 8-8-10, the wife is entitled to interest on the portion of alimony in gross that has remained unpaid since the entry of the divorce judgment on August 9, 2002. The amount of alimony in gross due as of August 9, 2002, was $295,000. The amount due was reduced to $145,000, when the husband paid $150,000 in accordance with the trial court’s interlocutory order. (The wife states in her brief that the husband paid the $150,000 in November 2002.) Because we reverse that portion of the judgment relating to the alimony in gross and conclude that the wife is entitled to $145,000 more than the trial court awarded her, we also reverse and remand that portion of the judgment relating to the wife’s award of interest on the unpaid amount of alimony in gross for the trial court to recalculate the interest in accordance with § 8-8-10. On remand, we direct the trial court to include in its judgment both the calculations for the amount of reasonable rent and utilities due to the husband for the period of time the wife remained in the marital residence after he requested that she vacate the marital residence and the amount of interest due to the wife on the unpaid portion of the alimony in gross.

Finally, the wife contends that the trial court erred in failing to award her moving expenses. The wife does not argue that the provision of the antenuptial agreement relating to moving expenses was ambiguous; rather, she argues that she was entitled to the payment of her moving expenses under the express language of the antenuptial agreement. In its judgment, the trial court found that the “the conditions [under the antenuptial agreement] upon which the [w]ife would be entitled to moving expenses have not occurred.” The antenuptial agreement states that the wife is entitled to moving expenses “[i]n the event the [w]ife should leave the marital residence for any reason resulting in a final divorce”; that language clearly contemplates that the wife would be entitled to moving expenses only if she met the “condition” of moving out of the marital residence before the parties were divorced. Accordingly, we conclude that the wife is not entitled to the payment of her moving expenses, and we affirm that portion of the trial court’s judgment. Having concluded that the wife is not entitled to moving expenses, it is not necessary for us to reach the issue whether the wife presented sufficient evidence to support the reasonableness of $12,000 for moving expenses.

The wife’s claim for an attorney fee on appeal is granted in the amount of $4,500.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

MURDOCK, J., concurs in the result.

      . Although all three letters were sent to the trial judge, they were not filed with the clerk of the court.

      . The reconciliation of the parties to a pending divorce action abrogates the cause of action, and the suit as a legal proceeding no longer exists. McNutt, 370 So.2d at 1000 (citing Bell v. Bell, 214 Ala. 573, 108 So. 375 (1926)). The trial court loses subject-matter jurisdiction over the parties, and, as a general rule, the only allowable judgment is an order of dismissal. Rikard, 387 So.2d at 843 (citing McNutt, supra, and James, supra).

      . The husband argues for the first time on appeal that the divorce judgment was not a final judgment, because, he argues, it ordered the parties to "abide by the terms of the [antenuptial agreement] until such further order of the court.” However, we conclude that the divorce judgment was a final judgment because it clearly disposed of all the issues between the parties and was a complete adjudication of all matters in controversy. Dees v. State, 563 So.2d 1059 (Ala.Civ.App.1990).

      . The husband admitted that the reasonable value for the wife’s continued occupancy of the martial residence included the "utilities, maintenance, and all other upkeep."

      . The trial court certified, pursuant to Rule 54(b), Ala. R. Civ. P., that portion of its order requiring the wife to vacate the martial residence.

      . Regarding the moving expenses, the order states:
      "The Court expressly orders that said sum is a temporary allowance made to the [wife], and all issues concerning whether the [wife] is or is not entitled to have her moving expenses paid [for] by the [husband] are specifically reserved until a final order of the Court.... The Court further orders that in the event that it should determine that the [wife] is not entitled to any moving expenses, it specifically reserves its authority to direct that said sum of $12,000 be repaid to the [husband] by the [wife] or to credit said amount against any other sums due to the [wife].”

      . At the trial-court level, both parties stated in their pleadings that the antenuptial agreement had been incorporated into the divorce judgment. The husband points out in his brief on appeal that a trial court may accept or reject certain parts of an antenuptial agreement in entering a divorce judgment, citing Shaver v. Shaver, 611 So.2d 1094, 1096 (Ala.Civ.App.1992). We note that the trial court in this case incorporated the entire antenuptial agreement into its divorce judgment as requested by the parties.
      We also note that the wife argues somewhat inconsistently for the first time in her reply brief that the antenuptial agreement was not merged into the divorce judgment, citing certain language contained in the antenuptial agreement. Because the wife did not raise this issue in her initial brief or at trial, we “will simply treat such issue[ ] as not before the Court." Kennesaw Life & Accident Ins. Co. v. Old Nat’l Ins. Co., 291 Ala. 752, 754, 287 So.2d 869, 871 (1973).

      . Although the wife argues on appeal that the husband did not plead or prove the amount of rent and utilities, she does not appeal the trial court's determination that the husband was entitled to reasonable rent and utilities during the period after she was requested to leave the marital residence. The only evidence before the trial court of the amount of reasonable rent and utilities is the husband's letter, dated September 23, 2002, demanding that "the reasonable rental value of the house is $6,000 per month, and rent will be claimed against [the wife] at the rate of $3,000 per month after the expiration of 10 days."
      The record does not reflect whether the wife moved out of the marital residence by November 30, 2002, as ordered by the trial court. The husband's brief seems to imply that the wife was still residing at the marital residence when the trial court entered its final judgment on March 10, 2003.

      . Had the wife argued at the trial-court level and on appeal that the language of the ante-nuptial agreement relating to moving expenses was ambiguous, a different result might have been reached by the trial court and this court on the issue of her entitlement to moving expenses under the antenuptial agreement.


author: PER CURIAM.

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. Donald Wayne DARLING).
    CR-02-1950.
    Court of Criminal Appeals of Alabama.
    Oct. 24, 2003.

      William H. Pryor, Jr., atty. gen., and Jeremy W. Mclntire, asst. atty. gen., for petitioner.
    Jenny Behel, Florence; and Christopher E. Connolly, Florence, for respondent.
   PER CURIAM.

The State filed this petition for a writ of mandamus directing Judge Ned Suttle to rescind his order setting a jury trial on the issue whether prosecutorial misconduct during Donald Wayne Darling’s first trial barred a second trial in this case.

In November 2002, Darling was indicted for murder made capital because it was committed during the course of a burglary. His first trial began on June 23, 2003. On June 28, 2003, after the jury had deliberated for one full day the trial court declared a mistrial when the jury was unable to reach a unanimous verdict. On July 1, 2003, Darling moved to dismiss the capital-murder charges against him, arguing that subjecting him to a second trial when pros-ecutorial misconduct in the first trial prevented the jurors from reaching a unanimous verdict violated the Double Jeopardy Clause. He also requested a jury trial on the issue whether the prosecutor’s actions were intentional. Judge Suttle granted Darling’s request for a jury trial. The State filed a motion to reconsider; Judge Suttle denied that motion. The State then filed this mandamus petition and requested a stay of the proceedings in the circuit court. We stayed all action in the circuit court pending our resolution of this mandamus petition.

The State argues that whether the Double Jeopardy Clause bars Darling’s retrial is a question of law — one for the trial court to resolve — -and that the trial court erred in setting the matter for a jury trial on the issue. It argues that whether a mistrial granted when the jury is deadlocked bars a retrial is never a question of fact but strictly a question of law. It asserts that a mistrial resulting from a deadlocked jury never bars a retrial.

Darling argued in his motion to dismiss that certain errors that occurred at trial resulted in the jury’s being unable to reach a unanimous verdict and that those efiors were intentionally caused by the district attorney.

The United States Constitution and the Alabama Constitution of 1901 both prohibit subjecting a defendant to multiple prosecutions for the same offense. See Fifth Amend. U.S. Const, and Art. I, § 9, Ala. Const, of 1901.

Art. I, § 9, Ala. Const, of 1901, reads as follows:

“That no person shall, for the same offense, be twice put in jeopardy of life or limb; but courts may, for reasons fixed by law, discharge juries from the consideration of any case, and no person shall gain an advantage by reason of such discharge of the jury.”

The Legislature subsequently enacted Title 30, § 100, Ala.Code 1940, the predecessor statute to § 12-16-233, Ala.Code 1975. Section 12-16-233 states:

“The court or presiding judge in all cases of jury trial may discharge the jury without giving a verdict, with the consent of all parties to the trial or without the consent of the parties, when, in the opinion of the court or judge, there is a manifest necessity for the discharge or when the ends of justice would otherwise be defeated. In all cases in which the jury is discharged without a verdict, a mistrial shall be entered upon the minutes of the court, assigning the reason or cause for the mistrial, and no person shall gain any advantage by reason of such discharge of the jury.”

Art. I, § 9, Ala. Const, of 1901 and § 12-16-233, AIa.Code 1975, specifically give a trial court the authority to declare a mistrial when there is a “manifest necessity.” The statute and subsequent caselaw also provide that when a mistrial is declared because of a “manifest necessity” a retrial is not barred. See Ex parte Whirley, 530 So.2d 865 (Ala.1988); Cox v. State, 585 So.2d 182 (Ala.Crim.App.1991); McKinney v. State, 567 So.2d 870 (Ala.Crim.App.1990). “The ‘prototypical example’ of a case meeting the ‘manifest necessity’ standard ... is the hung jury.” Ex parte Anderson, 457 So.2d 446, 448 (Ala.1984), citing Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).

As the United States Supreme Court stated in Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978):

“[T]he mistrial premised upon the trial judge’s belief that the jury is unable to reach a verdict, [has] long [been] considered the classic basis for a proper mistrial. The argument that a jury’s inability to agree establishes reasonable doubt as to the defendant’s guilt, and therefore requires acquittal, has been uniformly rejected in this country. Instead, without exception, the courts have held that that trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. This rule accords recognition to society’s interest in giving the prosecution one complete opportunity to convict those who have violated its laws.”

434 U.S. at 509, 98 S.Ct. 824 (footnote omitted).

Typically, when a mistrial is declared on a defendant’s motion a retrial is not barred by the prohibition against double jeopardy. See United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). However, the United States Supreme Court has recognized an exception to this general rule. See Oregon v. Kennedy, supra. When the prosecutor’s actions were intended to goad the defendant into moving for a mistrial then the State is barred from prosecuting the defendant in a second trial. See Oregon v. Kennedy. In keeping with the holding in Oregon v. Kennedy, the Alabama Supreme Court adopted Rule 15.4, Ala.R.Crim.P., which provides:

“(a) Determination of Motions. A motion raising defenses or objections made before trial pursuant to this rule shall be determined before trial, unless the court for good cause orders that it be deferred for determination at the trial on the merits.
“(b) Jury Trial. Unless a jury trial of an issue of fact raised by the motion is waived, such issue shall be tried by a jury if a jury trial is constitutionally required.
“(c) Court Trial. All other issues of fact raised by the motion shall be determined by the court without a jury in such manner as the court may direct.”

This rule allows a jury to be empaneled to determine the factual question whether the prosecutor’s actions in the first trial were intended to provoke the defendant into moving for a mistrial.

Here, the trial court declared a mistrial because the jury could not reach a unanimous verdict. The mistrial was not declared based on any alleged misconduct by the prosecutor.

In Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), the United States Supreme Court considered whether the Double Jeopardy Clause barred Richardson’s retrial when the first jury had acquitted him of one of the charged drug violations but was unable to reach a verdict on the two remaining charges. The trial court had declared a mistrial on the two counts as to which the jury was unable to reach a verdict. The Supreme Court detailed the history behind the principle that a mistrial declared because of a hung jury will not bar a second trial. The Court stated:

“The case law dealing with the application of the prohibition against placing a defendant twice in jeopardy following a mistrial because of a hung jury has its own sources and logic. It has been established for 160 years, since the opinion of Justice Story in United States v. Perez, 9 Wheat. 579 (1824), that a failure of the jury to agree on a verdict was an instance of ‘manifest necessity’ which permitted a trial judge to terminate the first trial and retry the defendant, because ‘the ends of public justice would otherwise be defeated.’ Id., at 580. Since that time we have had occasion to examine the application of double jeopardy principles to mistrials granted for reasons other than the inability of the jury to agree, whether the mistrial is granted on the motion of the prosecution, see Illinois v. Somerville, 410 U.S. 458 (1973), or on the motion of the defendant, see Oregon v. Kennedy, 456 U.S. 667 (1982); United States v. Dinitz, 424 U.S. 600 (1976). Nevertheless, we have constantly adhered to the rule that a retrial following a ‘hung jury’ does not violate the Double Jeopardy Clause. Logan v. United States, 144 U.S. 263, 297-298 (1892). Explaining our reasons for this conclusion in Arizona v. Washington, 434 U.S, 497 (1978), we said:
“ ‘[Wjithout exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. This rule accords recognition to society’s interest in giving the prosecution one complete opportunity to convict those who have violated its laws.’ Id., at 509.
“We are entirely unwilling to uproot this settled line of cases by extending the reasoning of Burks [v. United States, 437 U.S. 1 (1978)], which arose out of an appellate finding of insufficiency of evidence to convict following a jury verdict of guilty, to a situation where the jury is unable to agree on a verdict. Thirty-five years ago we said in Wade v. Hunter, 336 U.S. 684, 688-689 (1949):
“ ‘The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again.... What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.’
“... The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree. Regardless of the sufficiency of the evidence at petitioner’s first trial, he has no valid double jeopardy claim to prevent his retrial.”

468 U.S. at 323-25, 104 S.Ct. 3081 (footnote omitted). The Supreme Court also noted in a footnote in that opinion that “no set of facts will support the assertion of a claim of double jeopardy like petitioner’s in the future.” 468 U.S. at 326 n. 6, 104 S.Ct. 3081.

The holding in Richardson is in accord with the Alabama Constitution of 1901, § 12-16-233, Ala.Code 1975, and Alabama caselaw. Whether the Double Jeopardy Clause bars a retrial when a trial has ended in a hung jury is never a question of fact but is always a question of law.

Accordingly, the trial court erred in granting Darling’s motion for a jury trial on the issue whether the prosecutor’s conduct provoked a mistrial. There is no set of circumstances that will bar a retrial in this case. See Richardson.

This petition is due to be, and is hereby, granted. The trial court is directed to rescind its order granting Darling’s motion for a jury trial on the issue of whether a retrial would violate the Double Jeopardy Clause.

PETITION GRANTED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . An exhibit filed with the petition contains a portion of the transcript where the jury foreperson returned with the following question, "Two members are determined that their mind is made up. Therefore, we cannot all 12 come up with a 12-0 vote. What’s next?” (R. 669.) The trial court then gave the jury an instruction and sometime later declared a mistrial.

      . "It is clear that this Code section [Title 30, § 100, Ala.Code 1940] recognizes the fact that hung juries come about and our law today does not contemplate that the circuit judge shall cart them about on his itinerary from county seat to county seat till they agree." Orr v. State, 40 Ala.App. 45, 51, 111 So.2d 627, 633 (1958).

      . Very few cases in Alabama specifically address a defendant’s right to a jury trial on the allegation of a double-jeopardy violation. See Ex parte Adams, 669 So.2d 128, 129 (Ala.1995) (prosecutor asked witness whether the defendant had made a statement that contained a "pejorative racial term” and jury trial was necessary to determine whether the prosecutor's actions were intentional); Ex parte Taylor, 720 So.2d 1054 (Ala.Crim.App.1998) (Taylor waived right to jury trial on the issue whether the prosecutor intended to provoke a mistrial after the prosecutor failed to disclose two audiotapes of the conversations with the defendant); Billups v. City of Birmingham, 367 So.2d 518 (Ala.Crim.App.1978) (“ 'When the plea on its face shows that the question raised by it is a matter of law and not of fact, ... it is a question for the court alone, which should pass on the question of law properly presented and either sustain the plea and discharge accused or overrule the plea and place him on trial on the merits.' ") (Quoting 22 C.J.S. Criminal Law § 446(b)); Duncan v. City of Birmingham, 384 So.2d 1232 (Ala.Crim.App.1980) (when the issue is a matter of law, it need not be submitted to a jury).