author: MADDOX, Retired Justice.

text:
    Bobby SMITH et al. v. Ann MUCHIA, as executrix under the will of C.M. Smith, deceased.
    1011701.
    Supreme Court of Alabama.
    Jan. 31, 2003.

      S.J. Laurie, Chatom, for appellants.
    Edward P. Turner, Jr., of Turner, On-derdonk, Kimbrough & Howell, P.A., Cha-tom, for appellee Ann Muchia.
    Daniel L. McCleave of McCeave & Den-son, L.L.C., Mobile, for appellee Marguerite Williams.
   MADDOX, Retired Justice.

This case involves the disposition of the estate of C.M. Smith, a resident of Washington County, who died testate. The first question presented is whether the trial judge erred when he ordered the sale of a tract of real estate devised under the will and further ordered that the proceeds of that sale be distributed equally between the brothers and sisters of C.M. Smith, even though C.M. Smith’s will appears to provide for a different disposition. The second question presented is what assets of the estate are to be used by the executrix for the payment of debts, claims, and expenses of administration of the estate? We affirm in part, reverse in part, and remand.

Facts and Procedural History

C.M. Smith (“the decedent”) died on February 5, 1996. His wife, Iva J. Smith, who was named as executrix in the decedent’s will, died soon after on February 19, 1996. On February 5, 1998, Ann Muchia, who was named as successor executrix to Iva Smith, filed a petition to admit the decedent’s will to probate.

Portions of the will read as follows:

“ARTICLE I
“I hereby direct my executor hereinafter named to pay all of my just debts, funeral expense and the cost of administering my estate out of my estate as soon after my death as may be practicable.
“ARTICLE II
“I give, devise and bequeath unto my beloved wife, Iva J. Smith, a life estate in the property owned by me and described as follows: ... containing 19.83 acres more or less; together with the use and benefit of said land during her lifetime.
“ARTICLE III
“In the event my wife, Iva J. Smith, should predecease me, and in any event, on the natural expiration of her life estate, the above described land shall pass to the following people: Carl Smith, Myrtie Mills, Gordy Smith, Ann Muchia, Lena Caten, and Lora Reed, all being my brothers and sisters. This property is to be divided in the following manner:
“CARL SMITH shall be given five (5) acres exactly from that portion of the land on which the mobile home and outbuildings lie, and the said mobile home and outbuildings shall be his own.
“MYRTIE MILLS shall be given an equal interest out of the remainder of the land from that portion of the land that adjoins the property which she currently owns.
“The remainder of the property is to be divided between Gordy Smith, Ann Muchia, Lena Caten and Lora Reed as they see fit, but in equal shares, share and share alike.
“It is my desire that no timber be cut, sold or otherwise disposed of from this property.
“Further, it is my desire that this property not be sold to anyone outside the family.”

On August 7, 1998, the probate court ordered that the will be admitted to probate and granted letters testamentary under the will to Muchia. On May 7, 1999, Muchia filed a petition to remove the estate from the probate court to the Circuit Court of Washington County, and on May 11, 1999, the circuit court granted the petition to remove the estate, and, in due course, the proceeding was transferred to the circuit court. On July 14, 1999, Muc-hia petitioned for the sale of the real property. In the petition, Muchia alleged that there were insufficient funds in the estate to pay the “claims, debts and costs of administration of the estate,” and that it was in the best interest of the estate that the property be sold to pay those claims, debts, and costs and that the proceeds remaining after the claims, debts, and costs of administration of the estate were paid should be distributed equally among the “joint owners of the real property.” On August 24, 1999, the trial judge held a hearing on the petition.

At the August 24, 1999, hearing, Muchia testified that the only assets of the estate were a tract of real estate of approximately 20 acres, on which was situated a 1969 mobile home with a detached garage, and approximately $1,375, which she realized from the sale of the decedent’s automobile. She also testified that at the time of his death, C.M. Smith had a joint bank account with his wife, Iva, in which there was $41,000. She further testified that after C.M. Smith’s death a niece who lived in California had come to Alabama and had put Iva in a hospital in Mobile, where Iva died; that the niece had then taken the proceeds of the account to California; and that Muchia had been unable to recover any of those funds. Muchia also testified that the decedent did not have any debts at the time of his death and that the only debts of the estate at the time of the hearing were for the costs and expenses for the administration of the estate. Muc-hia further testified that of the six brothers and sisters named in the will, only she and Gordy Smith were still living.

On December 10, 1999, the heirs of Carl Smith, a specific devisee in the will — Bobby Smith, Rachel Carpenter, Helen Loper, and Ethel Virginia Smith (hereinafter referred to as “the heirs of Carl Smith”)— answered the petition and objected to the sale of the land. They stated:

“[U]nder the terms of the Last Will and Testament, Carl Smith was devised five (5) acres of the lands owned by C.M. Smith, deceased, to be located ‘exactly from that portion of the land on which the mobile home and outbuildings lie, and the said mobile home and outbuildings shall be his own.’ That a general sale of said real property involving the five (5) acres devised to Carl Smith would not take into account the value of said five (5) acres as opposed to the remaining property devised to other de-visees under said Last Will and Testament to allow for a fair and proper distribution of the payment of the proceeds after payment of all debts, claims and costs of administration. [The heirs of Carl Smith] would further allege that said five (5) acres have not been delineated by survey nor appraised.”

In addition, the heirs of Carl Smith filed a counterclaim seeking a judgment declaring that under the will they are entitled to have the five acres of land on which the mobile home and outbuildings lie set aside for them.

On March 21, 2000, Marguerete Williams, a descendant of Lena Caten and a niece of the decedent’s, filed an answer to Muchia’s petition for the sale of the real property. In her answer, Williams alleged that the language of the will concerning the property was “inexact and subject to interpretation.” Williams requested that the court set a hearing so that “the terms of the Last Will and Testament of C.M. Smith, deceased, can be fully and fairly discerned, and that this Honorable Court may then order such relief as may be just and proper.” On August 9, 2000, Williams filed a “response to petition for sale of real property,” alleging that the estate did not have adequate cash to pay its obligations and that the real property could not be equitably divided and that the “only equitable means by which this Court can follow the intention of C.M. Smith is to order the sale of the only asset of the Estate, payment of expenses and division of the proceeds.” She offered to purchase the real property for $60,000, and she requested that Muchia file an inventory of the estate. On August 31, 2000, the trial judge ordered that a hearing be held on November 21, 2000. At the November 21 hearing, Rachel Carpenter, a daughter of Carl Smith and one of the heirs, testified that her father had lived on the property with C.M. Smith for approximately 10 years.

On January 23, 2001, the heirs of Carl Smith filed a proposed settlement with the court, pursuant to which the timber from the entire tract of real property would be sold to pay the debts and expenses of the estate and the balance of the proceeds from the sale of the timber would be divided “among the heirs of C.M. Smith, per stirpes and not per capita, as if he died intestate.” As part of the settlement, the heirs of Carl Smith would be deeded a five-acre tract containing the mobile home and outbuildings, according to a proposed survey. On February 5, 2001, Williams filed a motion opposing the proposed settlement.

The trial court did not accept the settlement, and the case was set for a bench trial on August 21, 2001.

At that trial, John Russell Wilson, a real estate appraiser and broker testified that he had appraised the real estate in two parcels. One parcel contained 5 acres and the improvements, i.e., the mobile home and the outbuildings, which the heirs of Carl Smith “surveyed out of the twenty acre parcel,” and the second parcel consisted of the remaining land, approximately 15 acres. Wilson valued the 5-acre parcel at $40,000 and the 15-acre parcel at $18,000, as of August 15, 2001. Neither appraisal included the value of the timber on the land. Under cross-examination, Wilson testified that he did not know how the composition of the 5-acre tract had been decided, but that that tract was in the middle of the property, and he did not consider the irregular shape of the remaining 15-acre tract in his appraisal of that tract.

Robert Nelson, a consulting forester, testified that the timber on the entire 20 acres was worth $41,916. Nelson had valued the land and the timber in 1999, and his original appraisal, dated April 28, 1999, estimated the total value of the 20 acres to be $74,366. Of that figure, $51,766 was allocated to the timber and $22,600 to the “bare land.” As Nelson stated in the original appraisal, his original appraisal of the land did not include the value of the mobile home and unattached garage, and he testified that he estimated that there was more timber per acre on the 15-acre parcel than on the 5-acre parcel.

Judge Thomas Baxter, district judge of Washington County, testified that he drafted C.M. Smith’s will when he was practicing law. He testified as follows:

“Q. All right. And what instruction did [C.M. Smith] give you concerning the preparation of his will?
“A. He indicated to me that he wanted to leave the five-acre parcel of land to a brother where there were some buildings located. And so based on those instructions, I drafted that portion of the will that dealt with that. There were other things that he talked to me about, as well, which are also found in the will, but I did it based on his instructions to me.
“Q. All right. And in the preparation of that will, did you attempt to carry out the intent of Mr. Smith?
“A. Yes, sir.
“Q. All right. And when he read the will, was he satisfied with it?
“A. Yes, sir,....”

On April 29, 2002, the trial court issued its order; that order stated, in part, as follows:

“The court is of the opinion after reviewing the Will of the decedent and the evidence offered in this case that it is in the best interest of the Estate and the beneficiaries under the Will of the decedent that the entire twenty (20) acre tract should be sold as hereinafter ordered.
“The Court is of the further opinion after consideration of all the evidence that the allegations of the petition for the sale of the real property described in the petition and filed by Ann Muchia, individually and as the duly appointed Executrix of the Estate of C.M. Smith, deceased, are true and that said petition should be granted. It is therefore,
“Ordered, Adjudged and Decreed by the Court that the petition for the sale of real property heretofore filed in this cause by Ann Muchia, individually and as the duly appointed Executrix of the Estate of C.M. Smith, deceased, be and the same hereby is granted. It is further,
“Ordered, Adjudged and Decreed by the Court that the real property described in Exhibit A’ of said petition be sold by the Executrix of the Estate of C.M. Smith for the payment of the claims, debts, costs and expenses of administration at public sale....
“Bobby Smith, Rachel Carpenter, Helen Loper and Ethel Virginia Smith, being all of the heirs at law of Carl Smith, deceased, filed an Answer and Counterclaim for Declaratory Judgment to the petition of Ann Muchia, as Executrix under the Will of C.M. Smith, deceased, for the sale of the ... real property for the payment of claims, debts and costs of administration. In their Answer and Counterclaim for Declaratory Judgment, the heirs of Carl Smith contend that the Court should set aside to them five (5) acres of the land owned by C.M. Smith, deceased, and described in the petition ‘exactly from that portion of lands upon which the mobile home and outbuildings lie and the said mobile home and outbuildings shall be his own,’ and further contending that a sale of the entire twenty (20) acre tract of real property would involve the five (5) acres devised to Carl Smith and would not take into account the value of this five acres as opposed to the remaining part of the twenty (20) acre tract devised to the other beneficiaries of the Will of C.M. Smith, deceased.
“The intent of the Testator, C.M. Smith, is to be gathered from the whole instrument. The intent of the Testator is the polestar in the construction of a Will. The Court has reviewed the whole Will of C.M. Smith, deceased. Under Article I of the Will of C.M. Smith, the testator provided for the payment of all of. his just debts, funeral expense and the cost of administering his estate out of his estate as soon after his death as practicable. In Article II of the Testator’s Will, he bequeathed to his beloved wife, Iva J. Smith, a life estate in the property owned by him and which is the twenty (20) acre tract described above. This bequest to the decedent’s wife is in clear and unequivocal terms. In Article III of the Testator’s Will, the Testator provided that upon the natural expiration of the life of his wife, Iva J. Smith, the said twenty (20) acre tract should pass to his six brothers and sisters. This bequest is in clear and unequivocal terms. Under the clear and unequivocal terms of the Testator’s Will, at this point, he devised to his wife, Iva J. Smith, a life estate in the ... land with the remainder over jointly to his six brothers and sisters.
“Up until the time of the death of the Testator’s wife, Iva J. Smith, the six brothers and sisters were devised no possessory interest. After devising a life estate to his wife, Iva J. Smith, with the remainder over jointly to his six brothers and sisters, the Testator then attempted to direct how this remainder interest would be divided between his six brothers and sisters.
“This directive by the Testator is unclear and is in conflict with the clear and unequivocal terms of the Testator’s Will. The Court is of the opinion that this directive by the Testator as to how this twenty (20) acres is to be divided between the Testator’s six brothers and sisters cannot in equity and fairness to the beneficiaries be followed.
“This twenty (20) acres of real property, or some portion thereof must be sold in order to pay the claims, debts, costs, and expenses of administration. The Court cannot determine from the evidence before it what portion would be sold to pay the claims, debts, costs, and expenses of administration. The Court cannot set aside five (5) acres of this twenty (20) acre tract to the heirs of Carl Smith and sell the remaining part of this tract without frustrating the intent of the Testator that all six of his brothers and sisters would receive a share of this twenty (20) acre tract, nor would this be an equitable resolution of this issue. Additionally, the Court cannot determine if the sale of the balance of the twenty (20) acre tract, after deducting the five (5) acre tract asked for by the Carl Smith heirs would generate sufficient cash to pay the claims, debts, costs, and expenses of administration. Therefore, the Court has determine[d] that a sale of the entire twenty (20) acre tract is necessary and is in the best interest of all the beneficiaries under the Will of the decedent and would give effect to [the] clear intent of the Testator.
“In any event a division between the beneficiaries under the will of the decedent is not necessary in this Court’s opinion because the Court has determined that it is necessary in order to pay the claims, debts and costs of administration that this entire twenty (20) acre tract be sold as one parcel and that it is in the best interest of the estate that the entire twenty (20) acre tract ... be sold for the purposes aforesaid. The Court is, therefore, of the opinion that under the terms of the Will of the decedent, the Court cannot in equity and fairness to all beneficiaries divide this twenty (20) acre tract of real property in accordance with the Testator’s directive. The Court is of the further opinion that the rule of selection does not apply in this case and that the heirs of Carl Smith are not entitled to have set aside to them five (5) acres out of the aforesaid twenty (20) acre tract on which the mobile home and buildings lie....
“It also appears to the Court from the answer filed by the heirs of Carl Smith to the petition for the sale of the real property owned by the decedent at the time of his death, that the heirs of Carl Smith contend that in the event of the sale of said real property they would be entitled to a disproportionate share of the sale proceeds. The Court does not know at this point what the sales price of the twenty (20) acre tract will be and if there will be any balance remaining of the sales proceeds after the payment of the claims, debts, costs and expenses of administration to be divided among the beneficiaries of the Will of the decedent. The Court is of the opinion, however, that should there be any balance remaining of the sale proceeds after the payment of the claims, debts, costs and expenses of administration it should be divided equally between the decedent’s six brothers and sisters, or their decedents.”

(Emphasis added, except emphasis on the word “must,” which is original.)

The heirs of Carl Smith appeal to this Court, raising three issues. First, the heirs of Carl Smith allege that the trial court should have found the language of the will sufficient to set aside for them a five-acre parcel containing the mobile home and the outbuildings. Second, the heirs of Carl Smith allege that the trial court should not have ordered a sale of the real estate when they had offered to pay a pro rata share of the debts, the costs of administration, and the expenses of the estate. Third, the heirs of Carl Smith contend that if the property is sold, they should receive a larger share of the proceeds of the sale because the will had made a specific devise of five acres to Carl Smith, which was a larger share of the real estate than was given to the other heirs.

Standard of Review

This case was tried without a jury. In Allstate Insurance Co. v. Skelton, 675 So.2d 377 (Ala.1996), this Court stated:

“When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error. Griggs v. Driftwood Landing, Inc., 620 So.2d 582 (Ala.1993); First National Bank of Mobile v. Duckworth, 502 So.2d 709 (Ala.1987). However, where the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the court’s judgment carries no presumption of correctness. Beavers v. County of Walker, 645 So.2d 1365 (Ala.1994). Because no material facts are disputed and this appeal focuses on the application of the law to the facts, no presumption of correct[ness] is accorded to the trial court’s judgment. Therefore, we review de novo the application of the law to the facts of this case. Beavers, supra; Lake Forest Property Owners’ Ass’n v. Smith, 571 So.2d 1047 (Ala.1990).”

675 So.2d at 379. In Reed v. Board of Trustees for Alabama State University, 778 So.2d 791 (Ala.2000), this Court stated:

“ ‘The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.’ Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). The rule applies to ‘disputed issues of fact,’ whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala.1995). The ore tenus standard of review, succinctly stated, is as follows:
“ ‘[Wjhere the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.’
“Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977).”

778 So.2d at 795.

In this case, the facts before the trial court are essentially undisputed, and the controversy involves questions of law for this Court to consider; consequently, the trial court’s judgment carries no presumption of correctness. Beavers v. County of Walker, 645 So.2d 1365 (Ala.1994), and Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996). Our review is de novo. Beavers, supra; Lake Forest Property Owners’ Ass’n v. Smith, 571 So.2d 1047 (Ala.1990).

I.

The heirs of Carl Smith argue that “the language in the will that Testator is leaving the twenty (20) acre tract of land to Ms brothers and sisters is not controlling since he immediately delineates how and what portions he is leaving to each of his brothers and sisters.” (Brief of Heirs of Carl Smith, p. 14.) They further argue:

“The designation in C.M. Smith’s will that the described land shall pass to his six brothers and sisters was descriptive only and should not be used to overrule the definitive language that his brother, Carl Smith, ‘shall be given five (5) acres exactly from, that portion of land [on] which the mobile home and outbuildings lie and said mobile home and outbuildings shall be his own.’ ”

(Brief of Heirs of Carl Smith, p. 13; emphasis in original.) Muchia counters:

“[T]he testator initially and in clear and unequivocal terms devised to his wife, Iva J. Smith, a life estate in the 19.83-acre tract of real property described in Article II of his will. Secondly, he clearly and unequivocally provided that upon the death of his wife the remainder interest in the real property would go jointly to his six brothers and sisters. Thirdly and in direct conflict with his earlier pronouncement, which is the source of our present dispute, he directed that the remainder interest in the real property should be specifically divided among his siblings according to his dictates.”

(Muchia’s brief, p. 9.) Williams, a niece of Lena Caten who filed a brief as an interested party in support of Muchia, argues that:

“C.M. Smith clearly and unequivocally devised the subject property to his six brothers and sisters. C.M. Smith then directed that the property be divided in a particular and unclear manner, carving out five acres which are undefined to Carl Smith and giving an ‘equal interest’ to Myrtie Mills.
“What the heirs of Carl Smith ask this Court to do is to assume that C.M. Smith made a mistake in the general conveyance of the subject property to the six brothers and sisters by giving effect to their construction of the specific terms of the directions following.”

(Williams’s brief, p. 7.)

In Born v. Clark, 662 So.2d 669 (Ala.1995), this Court stated:

“It is well settled in Alabama that the intention of the testatrix is the law of the will, which the court should consider as a whole, giving effect to each provision where it is possible to do so; it is the court’s duty to carry out the testatrix’s intention where that intent can be ascertained. To determine the intent of a testator or testatrix, the court must look to the four corners of the instrument, and if the language is unambiguous and clearly expresses the testator’s or testatrix’s intent, then that language must govern. Galin v. Johnson, 457 So.2d 359 (Ala.1984). Where a will contains ambiguous or doubtful expressions, it is the duty of the court to determine what the testator or testatrix intended. Brittain v. Ingram, 282 Ala. 158, 209 So.2d 653 (1968).”

662 So.2d at 671.

Muchia and Williams argue that the phrase in Article III of the will, “shall pass to the following people,” conflicts with language in the following paragraph leaving five acres of real property to Carl Smith. The logical presumption of their argument is that the phrase leaves the property to the six named individuals in equal shares, share and share alike, and is controlling, and that the following paragraphs, which make specific devises, therefore conflict with the general provision. We cannot accept this argument.

It is apparent that the testator clearly intended to leave his real property to his brothers and sisters. In the sentence following the devise of the property to his siblings, the testator states: “This [real] property is to be divided in the following manner.” The testator’s intent, in our opinion, is clear. All six brothers and sisters are to share in the real property in the following manner: Carl Smith is to receive five acres first, then another five acres is devised to Myrtie Mills, and the remaining acreage goes to the remaining four brothers and sisters, “in equal shares, share and share alike.”

The trial court erred when it held that “[t]his directive [to give Carl Smith and Myrtie Mills five acres each] by the Testator is unclear and is in conflict with the clear and unequivocal terms of the Testator’s Will,” and that “this directive by the Testator as to how this twenty (20) acres is to be divided between the Testator’s six brothers and sisters cannot in equity and fairness to the beneficiaries be followed.”

The language of the will was sufficient to set aside a five-acre parcel for Carl Smith; the trial judge erred in finding otherwise. We leave it to the sound discretion of the trial court to decide the boundaries of the five-acre tract to be set aside for the heirs of Carl Smith, being guided by the principles set out in Horn v. Peek, 246 Ala. 241, 20 So.2d 234 (1944)(where the plaintiff was given 64 acres out of a tract of 179 acres and the balance was given to defendants, the plaintiff and the defendants had a right to make a selection, which could be done only under the supervision of the court so as to make each tract a compact body with straight lines for boundaries and in proper proportionate value according to the equities of the situation). In carving out the five-acre tract, the trial court may consider all of the evidence already presented, including the survey, but, in any event, the five-acre tract must encompass the mobile home and the outbuildings, which, according to the record before us, still exist.

II.

The heirs of Carl Smith argue that they offered to pay their pro rata share of the expenses of the estate, and that “[t]o allow the heirs of Carl Smith to retain ownership of the five (5) acres and pay their pro rata share of all costs would have been equitable and would not be unfair to the remaining devisees.” (Brief of Heirs of Carl Smith, p. 18.) The heirs cite no authority to support this position except for cases dealing with general equitable principles of fairness. They argue:

“The heirs ... wanted to save the five (5) acres devised to Carl Smith from sale because they had been looking after the place and this land had been owned by their grandfather. The remaining devi-sees of the fifteen (15) acres of property owned by the Estate of C.[M]. Smith could not in any way be damaged and their rights would not have been prejudiced by allowing the heirs of Carl Smith to save their five (5) acre parcel from sale by paying their pro rata share of the costs and expenses of administration.”

In deciding this case, we must obviously consider the expenses of the administration of the estate. As of August 24, 1999, the attorney fees of the estate were estimated to be $5,000. Since that time, there has been considerable litigation, and presumably those expenses have increased. Muchia argues that

“[t]he devolution of title to a decedent’s real property is subject to administration, under the dictates of § 43-2-830[ (c), Ala.Code 1975]; the court upon review of the facts of the case had the authority to determine that sale of the entire 19.83 acre tract was necessary for the swift settlement of C.M. Smith’s estate. First, ... the last will ... had directed his executrix Ann Muchia to pay the cost of administering his estate out of his estate ‘as soon after [his] death as may be practicable’.... Second, the trial court could not assure that enough cash would be generated to pay the claims, debts, costs and expenses of administration through the sale of only a portion of the 19.83 acres of real property, especially in light of the fact that timber prices had dropped dramatically since the appraisals were made.”

(Muchia’s brief, p. 16.) We cannot accept this argument. The record shows that the heirs of Carl Smith have agreed to pay their pro rata share of the costs and expenses of the administration of the estate in order to have the 5-acre tract set aside; therefore, we hold that the trial judge is authorized to order the sale of the remaining approximately 15 acres and divide the proceeds among C.M. Smith’s remaining 5 brothers and sisters, or their heirs, per stirpes. The heirs of Carl Smith must pay their pro rata share of the expenses of the administration of the estate, to be determined by the ratio the value of the five-acre tract bears to the value of the entire tract devised under the will.

III.

Finally, the heirs of Carl Smith argue that the trial court erred in its order when it stated that “should there be any balance remaining of the sale proceeds after the payment of the claims, debts, costs and expenses of administration it should be divided equally between the decedent’s six brothers and sisters, or their decedents.”

Because we have ordered that a five-acre tract shall be set aside for the heirs of Carl Smith, this issue has been rendered moot.

In view of the fact that it is undisputed that the claims, debts, and costs of administration must be paid before the proceeds of any sale are distributed, the trial court shall follow the order of abatement, as follows: (1) residual personalty, of which there appears to be $1,375 in cash; (2) personal property generally bequeathed (there appears to be none); (3) personal property specifically bequeathed, ratably (there appears to be none); (4) then general devises (there appear to be none); and finally (5) specific devises of land. See Rowe v. Newman, 290 Ala. 289, 276 So.2d 412 (1972), and Festorazzi v. First Nat’l Bank of Mobile, 288 Ala. 645, 264 So.2d 496 (1972).

Because we have determined that the total acreage was intended to be devised specifically, each devisee shall be obligated to pay the pro rata share he or she receives to pay the claims, debts, and costs of administration, ratably.

We leave it to the trial court, exercising its sound discretion, to make its determination, in accordance with this opinion, whether to conduct a private or public sale of the remaining 15 acres and whether to apply the principles of law set out in § 35-6-100, Ala.Code 1975, should any of the parties desire to make an offer to purchase the 15 acres.

This opinion was prepared by retired Justice Hugh Maddox, sitting as a Justice of this Court pursuant to § 12-18-10(e), Ala.Code 1975.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      1. The record shows that at a hearing held on August 24, 1999, Muchia testified that of the six brothers and sisters named in the will, all had died except for Muchia and Gordy Smith.

      . The heirs of Carl Smith raised a fourth issue — whether the trial court may order the sale of real estate to pay for the costs of administration of the estate where the decedent had no debts on the date of death. The heirs of Carl Smith argue that Turley v. Hazel-wood, 234 Ala. 186, 174 So. 616 (1937), and Beadle v. Steele, 86 Ala. 413, 5 So. 169 (1888), interpret § 43-2-441, Ala.Code 1975, to mean that “the lands of the decedent may be sold for debts owing by the decedent at the time of his death but not for cost and expenses of administration, when no debts are shown for the payment of which the lands are liable.”
      Muchia argues that § 43-2-441, Ala.Code 1975, was rendered obsolete by the adoption of § 43-2-844, Ala.Code 1975, which became effective for estates filed for probate on or after January 1, 1994, see § 43-2-853, Ala. Code 1975. Muchia argues that this Court’s restrictive definition of debts in Turley v. Hazelwood, supra, and Beadle v. Steele, supra, no longer applies to § 43-2-844.
      Without deciding the merits of either argument, we note that this argument was not presented to the trial court, and we decline to consider it. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992), in which this Court stated:
      “[T]he record shows that [the appellant] did not raise this issue in the lower court. This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial Court. Rodriguez-Ramos v. J. Thomas Williams, Jr., M.D., P.C., 580 So.2d 1326 (Ala.1991).”

      . We note that the issue whether the heirs of Myrtie Mills are to receive the five acres devised to Mills has not been argued to this Court, nor was it argued to the trial court; that issue is, therefore, not before us. Consequently, we leave undisturbed that portion of the trial court's order in which the heirs of Myrtie Mills are to receive Mills’s pro rata share of the proceeds of the sale of the 15 acres.

      . See Cater v. Howard, 230 Ala. 133, 138, 159 So. 830, 834 (1935), in which this Court stated:
      "While it may be conceded that the property, both real and personal, not specifically devised may be charged with the payment of debts so as to relieve the property specifically devised from the burden, nevertheless property so specifically devised is not wholly relieved, and must contribute ratably to the payment of the debts. May et al. v. Burns, [222 Ala. 68, 131 So. 232 (1930)].”

      . In view of the fact that there are two appraisals in the record before this Court, appraising a 5-acre tract as well as the 19.83-acre tract as a whole, the trial judge may use this evidence in determining the pro rata share of the expenses the heirs must pay, but he may take additional testimony to determine what the pro rata share would be.

      . This Court has held that the purpose of § 35-6-100 is to allow cotenants who wish to preserve their property intact, which was the desire of the testator as expressed in the will, to purchase the interests of any cotenants wishing to sell the property for a division of the proceeds and thereby to prevent the passing of title to family land to a stranger at a forced sale. See Williams v. McIntyre, 632 So.2d 446, 449 (Ala.1993), where this Court, citing McGee v. McGee, 495 So.2d 1081 (Ala. 1986), Black v. McCorvey, 428 So.2d 607 (Ala.1983), and Ragland v. Walker, 387 So.2d 184 (Ala.1980), held that "[t]he legislature did not intend, however, to keep title from passing to a stranger at the cost of selling the property at a lesser value,” but noted that "Section 35-6-100 does not prohibit a joint owner from buying the interests of the other owners and subsequently selling the property to a ‘stranger.’ ”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Phillip AARON v. Donald B. MANSELL.
    2010942.
    Court of Civil Appeals of Alabama.
    Jan. 10, 2003.

      Phillip Aaron, pro se.
   PER CURIAM.

This is an appeal from the trial court’s summary judgment.

On September 7, 2001, Phillip Aaron, an inmate in a state prison, acting pro se, sued Donald B. Mansell, alleging legal malpractice and slander. Mansell filed an answer denying the allegations of the complaint. On September 12, 2001, Mansell filed a motion for a summary judgment. Aaron then filed a “reply brief for oral argument for evidentiary hearing”; a “motion for declaratory judgment, or, in the alternative, to set for trial by jury... .ONLY”; and a motion for a summary judgment. On March 22, 2002, the trial court entered a summary judgment for Mansell. Aaron appeals.

Aaron argues, among other things, that the trial court erred by entering a summary judgment for Mansell. Neither party has raised an issue relating to the timeliness of the appeal; however, this court has held that “ ‘[jjurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.l997)(quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). The timely filing of a notice of appeal is a jurisdictional act. Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985).

The trial court entered summary judgment for Mansell on March 22, 2002. The appeal from this summary judgment would need to be filed by May 3, 2002. Aaron did not file an appeal, but instead filed a “motion/request to file out-of-time appeal.” He stated in his motion that the clerk’s office did not mail his copy of the entry of judgment until May 3, 2002. The trial court purported to grant his motion to file an out-of-time appeal on June 14, 2002.

The trial court entered its notation purporting to grant Aaron’s motion for an out-of-time appeal on the case action summary. There is no separate order in the record. There being no record of what grounds the trial court granted the motion for out-of-time appeal on, we will presume the grant was based on Rule 77(d), Ala. R. Civ. P., which provides that

“Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry by mail in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and who was not present in person or by that party’s attorney or not otherwise notified, when such order or judgment was rendered, and make a note on the docket of the mailing. Such mailing is sufficient notice for all purposes for which notice of the entry of an order is required by these rules; but any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal unthin the time allowed, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding thirty (SO) days from the expiration of the original time now provided for appeals in civil actions. ...”

(Emphasis added) Under Rule 77(d), the trial court could have granted an out-of-time appeal and extended the date for Aaron to file his notice of appeal to June 4, 2002.

Rule 4, Ala. R.App. P., was amended, effective September 1, 2000, to add subsection (c), which reads as follows:

“If an inmate confined in an institution and proceeding pro se files a notice of appeal in either a civil or a criminal case, the notice will be considered timely filed if it is deposited in the institution’s internal mail system on or before the last day for filing. If an institution has a system designed for ‘legal’ mail to be processed by the United States Post Office, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a notarized statement that sets forth the date the filing was deposited in the institution’s mail system.”

In the case before us, Aaron has provided no affidavit or other notarized statement that sets forth the date he deposited his notice of appeal in the mail system of the institution in which he is incarcerated. After a careful review of the record, we cannot ascertain when he did. His notice of appeal contains the following: “Submitted this — day of June, 2002.” The certificate of service for the notice of appeal is not dated, other than a reference to “this day.”

Rule 2(a)(1), Ala. R.App. P., provides that “[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” Aaron has failed to provide a “notarized statement that sets forth the date the [notice of appeal] was deposited in the institution’s mail system,” nor is there any other evidence in the record to substantiate the date he filed his notice of appeal. We conclude that Aaron’s appeal is untimely; therefore, we dismiss the appeal.

APPEAL DISMISSED.

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

MURDOCK, J., concurs in the result.

      . Thirty days from May 3, 2002, is June 2, which is a Sunday, and June 3 is a holiday, making June 4, 2002, the proper date the 30-day extension for time to appeal would terminate.


author: PITTMAN, Judge. CRAWLEY, Judge, MURDOCK, Judge,

text:
    R.O.M. v. B.B.
    2010632.
    Court of Civil Appeals of Alabama.
    Jan. 10, 2003.

      Blake A. Payne, Jasper, for appellant.
    Samuel B. Bentley, Jasper, for appellee.
   PITTMAN, Judge.

R.O.M. (“the father”) previously appealed a summary judgment of the Walker juvenile court in R.O.M.’s paternity action, declining to declare that he was the father of W.K.D.J. (“the child”). See R.O.M. v. T.W.J., 768 So.2d 397 (Ala.Civ.App.2000) (“R.O.M. I”). The facts in R.O.M. I indicate that the child was born in May 1995. The father testified he first learned of the existence of the child sometime in 1997, when the child was two years old. Following this discovery, the father arranged to have a DNA test performed in the fall of 1997. The results of that test were inconclusive, and the father subsequently took a second test, which indicated that he was the child’s father.

In January 1998 the father petitioned for custody, or in the alternative, for visitation rights as to the child and sought a judgment declaring that he was the father of the child. The juvenile court entered a summary judgment against the father and in favor of the mother’s ex-husband and B.B. (“the grandmother”), the maternal grandmother and temporary custodian of the child. This court reversed the summary judgment and remanded the case. On remand, on June 20, 2000, the juvenile court entered an order declaring R.O.M. to be the father of the child, thus enabling him to pursue his parental rights. The juvenile court set a hearing for August 29, 2000, on the issues of child support, custody, and visitation.

On August 18, 2000, the father filed a motion for immediate visitation pending the custody hearing, arguing that he was being denied visitation by the grandmother. On September 15, 2000, the juvenile court granted the motion and awarded the father visitation every other weekend from 5:00 p.m. on Friday until 5:00 p.m. on Sunday. The August 29, 2000, hearing was continued, and the juvenile court began hearing testimony on October 16, 2000. During the course of the hearing the juvenile court learned that the mother had not been served with notice of the hearing, nor was she represented by counsel. The juvenile court recessed the hearing until the mother could be served and requested that the attorneys agree on a final hearing date.

In May 2001 the father filed a motion to set the cause for a final hearing; the juvenile court set a hearing for August 16, 2001. In July 2001 the father began paying child support in the amount of $50 per week pursuant to a court order. After several delays during which time the mother could not be located, the juvenile court held a “final” hearing on November 20, 2001. Both the grandmother and the father requested custody of the child. The juvenile court received ore tenus evidence and conducted an in camera examination of the child.

Before the juvenile court entered the summary judgment for the grandmother, the father was allowed visitation with the child (during 1998 and 1999), but he lost his visitation rights during the appeal of R.O.M. I and only regained visitation rights again in September 2000. Both the father and his wife testified that the child enjoyed his visits and that the father and the child were developing a strong relationship. The father and his wife also testified that the grandmother told them she would leave the country with the child if she lost custody and showed them passports she had for herself and the child. The grandmother alleged that the father had abused the child; the father denied ever hitting the child.

The grandmother’s testimony at the November 20, 2001, hearing verified that she had taken physical custody of the child when her daughter, the mother, voluntarily relinquished custody in 1997. The grandmother gave extensive testimony regarding bruises she discovered from time to time on the child and offered some photographs as evidence. She stated that she had not reported those incidents of alleged abuse to the authorities except in passing. During cross-examination, the grandmother revealed that the photographs showing bruises were taken during July and August 2000, months when the father’s visitation rights were suspended. At the close of the hearing the court did not issue an order.

On February 26, 2002, the juvenile court held another hearing at which it heard no testimony, only argument from the parties’ counsel. No record of that hearing exists, other than a mention of that proceeding in the juvenile court’s final order. On February 28, 2002, the juvenile court issued an order addressing custody, visitation, and child support. This order awarded custody of the child to the maternal grandmother and set a visitation schedule for the father. The order also reaffirmed the earlier child-support order. The father filed a postjudgment motion, which the juvenile court denied on March 8, 2002. This timely appeal follows.

The father argues that the juvenile court abused its discretion by awarding custody of the child to the grandmother rather than to him. He attacks the juvenile court’s order in two specific ways. First, the father argues that the juvenile court erred in awarding custody to a non-parent without making a finding that he, as the natural parent, is unfit. Second, the father argues that the juvenile court must have applied the wrong standard when it awarded custody of the child to a nonpar-ent over the natural father.

“ ‘[0]ur standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of a trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown.’ ”

Ex parte Perkins, 646 So.2d 46, 47 (Ala.l994)(quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)) (citations omitted).

“In a custody dispute between a parent and a nonparent, the parent has a prima facie right to custody of his or her child. Ex parte D.J., 645 So.2d 303 (Ala.1994). Unless the trial court finds that the parent is unfit, or that the parent has voluntarily relinquished custody of the child, or that the parent has lost custody of the child by virtue of a prior order, the law presumes that the best interests of the child will be served by giving the parent custody. Ex parte Terry, 494 So.2d 628 (Ala.1986); Ex parte Mathews, 428 So.2d 58 (Ala.1983); E.C.B, v. J.S., 612 So.2d 1243 (Ala.Civ.App.1992); Roden v. Colburn, 522 So.2d 290 (Ala.Civ.App.1988).”

D.P.M. v. D.B., 669 So.2d 191, 193 (Ala.Civ.App.1995).

In this case, the juvenile court did not expressly find the father unfit. See C.P. v. W.M., 806 So.2d 395 (Ala.Civ.App.2001). In fact, the juvenile court made no written findings of fact at all. Absent a finding of unfitness, unless the father voluntarily relinquished custody or lost custody of the child by virtue of a prior order the presumption that it is in the best interests of the child for the father to have custody is not overcome. Under the standard expressed in Ex parte Terry, 494 So.2d 628 (Ala.1986), the natural parent has a prima facie right to custody as to a nonparent, in this case the grandmother. Because no prior custody order is in the record, the only remaining ground by which the juvenile court could award custody to the grandmother over the father is voluntary relinquishment.

This court recently reviewed the issue of voluntary relinquishment in R.K v. R.J., 843 So.2d 774 (Ala.Civ.App.2002). Citing Ex parte McLendon, 455 So.2d 863 (Ala.1984), this court noted that a parent who voluntarily relinquished custody and “whose relinquishment has been acted upon by another to the manifest interest and welfare of the child,” loses his presumption of right to custody and must meet the McLendon standard to regain custody of his or her child. R.K. v. R.J., 843 So.2d at 778. That standard imposes a duty on the party seeking custody to prove that the transfer of custody will materially promote the interest and welfare of the child and will outweigh the inherently disruptive effect of the transfer. Ex parte McLendon, 455 So.2d at 865. Of the evidence offered in the hearings that might support a finding of voluntary relinquishment, the only undisputed fact gleaned is that the father did not begin paying child support until he was ordered to do so in July 2001. The father in this case initially began the process to adjudicate paternity and to assert visitation in 1998. See R.O.M. I. The primary difficulty is that the process of adjudicating the father’s legal rights has taken nearly five years and during that time the child has lived with the grandmother.

Indeed, the record is clear that once the DNA test results were verified by the second test performed in 1998, the natural father consistently pursued an active relationship with the child. The fact that the father’s attempt to pursue his parental rights was delayed by the judicial process does not support a finding of voluntary abandonment. We cannot find sufficient evidence in the record to support a voluntary relinquishment of custody by the father.

Usually in cases where the juvenile court has made no findings of fact, this court assumes that the juvenile court made those findings necessary to support its judgment. See Ex parte Patronas, 693 So.2d 473, 475 (Ala.1997). However, a thorough review of the record reveals numerous conflicting statements by the father and the grandmother; those conflicting statements cast doubt on the juvenile court’s custody determination.

The father denied any knowledge of the child’s existence until sometime after the child turned two years old. The grandmother stated that the daughter told her that R.O.M. was the child’s father, although at the time of the child’s birth the daughter was married to another man. The grandmother accused the father of bruising the child during scheduled visitation, but she admitted she never alerted the authorities to the alleged abuse. The father stated that the grandmother had threatened to run away with the child if she lost custody. We note that this court may not substitute its judgment for that of the trial court. Bratton v. Romine, 819 So.2d 58, 61-62 (Ala.Civ.App.2001). However, after a careful review of the record, this court cannot determine which standard the juvenile court applied when it awarded custody to the grandmother.

In light of the conflicting evidence contained in the record, as well as the fact that the juvenile court did not make any written findings of fact regarding the fitness of the father, we conclude the trial court abused its discretion by awarding custody of the child to the grandmother. We cannot determine whether the trial court applied Ex parte Terry, supra, or Ex parte McLendon, supra, in making the custody award determination. Therefore, we must reverse the juvenile court’s judgment and remand the cause for the juvenile court to make the necessary express findings of fact, to apply the proper standard, Ex parte Terry, and to make a child-custody award based upon the correct standard.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., and THOMPSON, J., concur.

CRAWLEY and MURDOCK, JJ„ concur in the result.

CRAWLEY, Judge,

concurring in the result.

I agree that this case must be remanded for the trial court to make an express finding as to whether the father is unfit based on the evidence of record. See J.L. v. L.M., 805 So.2d 729, 733 (Ala.Civ.App.2001); R.H.M. v. State Dep’t of Human Res., 648 So.2d 614, 616 (Ala.Civ.App.1994). In addition, I note that the majority’s conclusion on the issue of voluntary relinquishment is further supported by our supreme court’s decision in Ex parte D.J., 645 So.2d 303 (Ala.1994).

MURDOCK, Judge,

concurring in the result.

The testimony in this case is often confusing and, as the majority notes, there are numerous inconsistencies in it. Nonetheless, among the testimony presented to the trial court that could be pertinent to the issues of “unfitness” and/or “voluntary relinquishment” is the following.

The grandmother, B.B., testified that she learned at the time her daughter became pregnant that R.O.M. might be the father of the child. W.K.D.J. (“the child”) was born in May 1995 and three months after his birth the grandmother began keeping the child. The father testified that he suspected in May 1996 that the child was his son. About a year and one-half after the child was born, according to the grandmother, the child’s mother spent two weeks with R.O.M. and advised him that the child was his. Consistent with this testimony, B.B. also testified that R.O.M.’s visitation with the child began, through her informal consent, in January or February 1997, or about the time the child’s mother advised R.O.M. of his paternity. B.B. further testified that it was approximately two years later before a DNA test was performed. She stated that R.O.M. failed to appear for an earlier paternity test that had been scheduled and that a court order was required to force him to present himself for a second scheduled paternity test. B.B. further testified that, although the father was adjudged on June 20, 2000, to be the father of the child, during the time she has had custody of the child, the father never paid any child support until he was ordered by the court to do so in July 2001. B.B. also testified that R.O.M. knew how the child’s mother had mistreated the child, but he had not intervened or offered any assistance.

The father gives a slightly different version of events, including that he was first told of his paternity of the child approximately two years after the child’s birth. However, it was more than two years and seven months after the child’s birth before the father petitioned for custody and a paternity declaration in January 1998. Thus, even if the trial court believed the father’s testimony that he did not know that he was the child’s father until two years after the child’s birth, the court still could have inferred from that testimony that the father failed to assert his rights for approximately seven months after he was told he was the father of the child. There is also testimony from which the court could have inferred that the father never sent the child any birthday or Christmas presents.

B.B. testified that when she would take the child to meet R.O.M. for weekend visits, the child often would go “kicking and screaming” and did not want to visit with R.O.M. B.B. stated that R.O.M. would be forced to “pick [the child] up bodily and put him in the vehicle to take him.” She testified that she observed bruises on the child following some visits, including bruises on one occasion to the child’s stomach, which, according to B.B., the child told her occurred because “[R.O.M.] was mad and pushed him down.” Other bruises occurred, according to B.B.’s recollection of her conversation with the child, from R.O.M.’s pushing the child down stairs. Among other things, both photographic and testimonial evidence was introduced of the existence on different occasions of bruises on the child’s face, on the upper inside area of his left leg, and on his buttocks. B.B. also testified, without objection, that the child told her that a bruise he once suffered under his right eye occurred because “R.O.M. had got mad at him because he wanted his Daddy[, T.J., the mother’s ex-husband to whom she was married when the child was born].” In addition, there were conflicts in the testimony of both R.O.M. and his wife from which the trial court could have made adverse credibility determinations, including conflicts as to whether the child always called R.O.M. “Daddy” or whether the child called him by his first name on some occasions, and whether the child cried while visiting with R.O.M. (I note that in the transcript of the in camera testimony of the child during the trial, the child, without exception, referred to R.O.M. using his first name.)

There was evidence indicating that B.B. cared for and loved the child and had provided a stable home for him for most of his life as if he were her own child. R.O.M. admitted that B.B. had a “loving and caring relationship” with the child and that he knew that there would be some “harm or anguish or upset” on the part of the child if he were taken from B.B.:

“Q. Does [B.B.] appear to love the child?
“A. Yeah.
“Q. Do they appear to have a loving and caring relationship?
“A. Yes, sir.
“Q. Have you ever thought about what harm or anguish or upset might happen to this child if he were ■ taken from this environment to live with you?
“A. Yes, I’ve thought about it.
“Q. You know there will be some, don’t you?
“A. Oh, yes.
“Q. A child would think it would be terrible, right?
“A. Oh, yes, but you know, me and him has talked about it and I want to be able to have my chance.”

R.O.M. further testified that he thought the child attended “Valley Junior High,” but that he had never visited him in school or had any conferences with his teachers.

B.B. also testified without objection that R.O.M.’s wife had called the child “a son of a b.... ” on one occasion when he opened a door too wide and hit some furniture, and that there were other instances of this nature involving R.O.M.’s wife. B.B. testified that the child “looks [to] me to protect him.”

Among other things, the child testified in camera as follows:

“THE COURT: Okay. Do you know what we’re doing here today?
“[CHILD]: Yeah, child support and I don’t like it.
“THE COURT: You don’t like child support? Why?
“[THE CHILD]: Because I don’t like [R.O.M.] Do you know what he does to me?
“THE COURT: Nuh-uh.
“[THE CHILD]: He just beats me, mean, mean, mean.”

The child also testified that R.O.M.’s wife had a bad temper and that on one occasion she beat him to the point that he, R.O.M., started crying. The child also testified that R.O.M. and his wife have another man, named Danny, a “friend” who lives with them. The child also testified as follows:

“[THE CHILD]: ... And [R.O.M.] busted — see that right there?
“THE COURT: Uh-huh.
“[THE CHILD]: That’s where he busted my lip.
“THE COURT: How did he do that?
“[THE CHILD]: Just slapped me, it was bleeding, it was coming out of my mouth.
“THE COURT: Did he slap you because he was mad at you or was it an accident?
“[THE CHILD]: Mad at me....
“[THE CHILD]: ... I hate [R.O.M.] Do you know he does a lot mad.... ”
The child also stated on the record that he wanted to live with B.B.

In addition, I note that B.B. played for the court several audiotape recordings of the child’s conversations with her and his reactions to going to visit with R.O.M. These tapes were made in a car on the way to the visits. It is well established that we assume that missing parts of the record support the trial court’s judgment. Leverett v. Leverett, 828 So.2d 320 (Ala.Civ.App.2002) (citing Eagle Bail Bond v. State, 757 So.2d 433, 436 (Ala.Civ.App.1999)).

The majority opinion states that the “only undisputed fact” that might support a finding of voluntary relinquishment of the child is the fact that the father failed to pay child support. I agree that this may be the only undisputed fact regarding a possible relinquishment, but it may not be the only fact which the trial court could discern from the evidence. Nonetheless, as we recently noted in R.K. v. R.J., 843 So.2d 774 (Ala.Civ.App.2002), this court is bound by the holding of our Supreme Court in Ex parte D.J., 645 So.2d 303 (Ala.1994). Ex parte D.J. stands for the proposition that if the issue in a custody ease is whether a parent has voluntarily relinquished that custody, a trial court may not consider evidence of the parent’s actual physical or psychological abandonment of the child that occurs before the parent is legally declared by a court to be the parent. See R.K., supra. Accordingly, I would have to agree that the holding in Ex parte D.J. would not tend to be supportive of a finding of voluntary relinquishment in the present case.

As to the issue of unfitness, it was the trial court’s responsibility in the ore tenus hearing in this case to sort through conflicting testimony, make credibility determinations, weigh the testimony, and draw such inferences and make such findings as necessary to resolve conflicts in the testimony.

“‘Our standard of-review is very limited.... A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow.’ ”

Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994) (citations omitted) (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)). Further, where a trial court has made no express findings of fact, this court normally will assume that the trial court made those findings necessary to support its judgment. See Ex parte Patronas, 693 So.2d 473, 475 (Ala.1997). Judge Crawley is correct, however, to the extent he notes in his special writing in this case, that this court has held that, before a trial court may choose a nonpar-ent over a parent in a custody dispute where the issue is the parent’s alleged unfitness, the court must make an express finding that the parent is unfit. See, e.g., J.L. v. L.M., 805 So.2d 729, 733 (Ala.Civ.App.2001). Because the trial court did not do this in the present case, I agree that the cause must be remanded.

      . The mother's ex-husband, to whom she was married when the child was born, was the presumed father. He is not a party to this appeal.

      . At another point in his testimony, the father testified with respect to the child that "they kept him from me for two years.”


author: PITTMAN, Judge.

text:
    K.A.L. v. SOUTHERN MEDICAL BUSINESS SERVICES.
    2011074.
    Court of Civil Appeals of Alabama.
    Jan. 17, 2003.
    Sidney W. Jackson III and Mathew B. Richardson of Jackson, Foster & Graham, L.L.C., Mobile, for appellant.

      B.F. Stokes III of Stokes & Clinton, P.C., Mobile, for appellee.
   PITTMAN, Judge.

On December 12, 1998, K.A.L., who was incarcerated in the Saraland city jail, attempted suicide by hanging herself from the neck with a bedsheet. When jail personnel found her, K.A.L. had no pulse, and cardiopulmonary resuscitation was begun. By the time paramedics arrived, K.A.L. had a “thready” pulse and an agonal respiratory effort. She was immediately transported by ambulance to Springhill Memorial Hospital. Upon her arrival at the hospital, K.A.L. was comatose and her pupils were fixed and dilated. She was intu-bated and admitted to the intensive-care unit for treatment.

K.A.L. responded positively to treatment during her hospitalization, and she was discharged on December 21, 1998. Residual symptoms from the December 12 incident, during which her brain was deprived of oxygen, consisted of speech difficulties and tremors in her upper extremities. The costs associated with K.A.L.’s December 1998 hospitalization have not been paid.

On December 1, 2001, Southern Medical Business Services (“Southern Medical”), as Springhill Memorial Hospital’s assignee, sued K.A.L. and the City of Saraland (“the City”) to obtain payment of the medical expenses arising from K.A.L.’s December 1998 admission. The trial court entered a summary judgment in favor of the City and directed the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.; however, no appeal was taken from that judgment. On July 2, 2002, the trial court entered a summary judgment in favor of Southern Medical and against K.A.L. for $21,562. K.A.L. appeals from that judgment.

On appeal, K.A.L. does not dispute the amount of the debt, nor does she claim that the services for which recovery is sought were not reasonable and necessary; rather, her sole contention is that she is not liable for any charges pertaining to the December 1998 hospitalization because she did not consent to the services rendered.

On a summary-judgment motion, the burden is initially on the movant to make a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Ex parte Mountain Top Indoor Flea Market, Inc., 699 So.2d 158, 161 (Ala.1997). The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact. Id. Rule 56 must be read in conjunction with the “substantial evidence rule,” § 12-21-12, Ala.Code 1975. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). In order to defeat a properly supported summary-judgment motion, the nonmovant must present substantial evidence in support of his or her claims or defenses, 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). On appeal from a summary judgment, this court reviews the record in a light most favorable to the nonmovant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993).

K.A.L. correctly points out that an account is an item of indebtedness created by express or implied contract. K.A.L. argues on appeal that she could not have expressly consented to the December 1998 medical treatment because she was unconscious at the time of her admission to the hospital. She further contends that there is not substantial evidence to support a finding of an implied contract between her and the hospital for the December 1998 treatment, and she therefore claims that the trial erred to reversal in entering a summary judgment in favor of Southern Medical.

Southern Medical contends that whether a patient may be held liable for medical services for which no express consent was obtained is a question of first impression in Alabama. However, we find closely analogous a case in which a minor parent was held responsible for medical “necessaries” rendered to her seriously ill infant. See Ex parte Odem, 587 So.2d 919 (Ala.1988). In that case, our supreme court, citing Flexner v. Dickerson, 72 Ala. 318 (1882), noted the general rule of law in Alabama under which contracts executed by minors are voidable. The Odem court explained that a “voidable” contract could either be ratified or avoided at the election of the minor. After entering into a contract with Children’s Hospital of Birmingham for treatment of her sick infant, the mother in Odem subsequently elected to avoid that contract.

Our supreme court concluded that even though the minor mother had elected to avoid her express contract, the minor mother nonetheless had an obligation to pay for her infant son’s medical services; according to the Supreme Court, that obligation arose not from the express contract, but instead “from a quasi-contractual relationship created by operation of law which enforces the implied contract to pay.” Odem, 537 So.2d at 920. Using this rationale, the Odem court imposed upon the mother an obligation to pay for the reasonably necessary medical services, which it found to be the outstanding balance owed to Children’s Hospital.

Although the Odem case involved a minor who had avoided an express contract for medically necessary treatment for her infant, the resulting circumstances in Odem are quite similar to the facts in the present case. In both Odem and this case, medically necessary treatment was rendered that was not covered by an express contract concerning financial responsibility. We conclude that our supreme court made it clear in Odem that the doctrine of quasi-contract would apply under such circumstances to enforce an implied contract between a provider of medical services and the patient (or the patient’s legal representative) to pay the reasonable cost of those services.

Further, as Southern Medical points out in its brief, this court held in Shellnutt v. Randolph County Hospital, 469 So.2d 632 (Ala.Civ.App.1985), that “[wjhere ... there is no evidence of an express contract, an agreement is implied that a hospital will render services and in return receive a reasonable fee for those services.” 469 So.2d at 633. In the present case, the evidence demonstrates that K.A.L. was unconscious and in critical condition upon her December 1998 admission, and the hospital rendered necessary medical services to enable her to recover. Southern Medical is clearly entitled to a reasonable fee from K.A.L. for the services rendered during that admission. Accord, Restatement of Restitution § 116 (1937) (person who has supplied services to another, although acting without the other’s knowledge or consent, is entitled to restitution if, among other things, the services were necessary to prevent the other from suffering serious bodily harm or pain and it was impossible for the other to give consent).

The record reflects that the total charges assessed by Springhill Memorial Hospital for the medical services rendered to K.A.L. upon her December 1998 hospital admission were $17,969.12; in' its summary-judgment motion, Southern Medical sought recovery of that amount. A hearing was held on Southern Medical’s summary-judgment motion on June 21, 2002; the record does not contain a transcript of that hearing. In its summary judgment in favor of Southern Medical, the trial court awarded Southern Medical $21,562, which is $3,592.88 more than the amount originally sought by Southern Medical.

The record contains a written objection filed by K.A.L. opposing the entry of a proposed summary-judgment order that had been submitted by Southern Medical. In her objection, which was filed after the summary judgment had been entered, K.A.L. challenged the propriety of the larger award; she requested that the court disregard the additional amount proposed as damages by Southern Medical, or in the alternative that Southern Medical be directed to render a full accounting for the additional amount. The trial court denied the objection by a signed notation on the face of the objection. Although Odern indicates that an award of an attorney fee or of collection costs, in addition to the value of necessary medical services, would be erroneous, K.A.L. did not raise this issue in her brief to this court; therefore, this issue is not properly before us on appeal. See Parker v. Downing, 547 So.2d 1180, 1182 (Ala.Civ.App.) (citing Boshell v. Keith, 418 So.2d 89 (Ala.1982)), cert. denied, 547 So.2d 1185 (Ala.1988).

The trial court’s judgment is due to be affirmed.

AFFIRMED.

THOMPSON, J., concurs.

YATES, P.J., and CRAWLEY and MURDOCK, JJ., concur in the result.

      . The Odem court expressly found that attorney fees were not included within the general class of necessaries, and remanded the matter to the trial court, directing it to amend its judgment to exclude an attorney-fee award. 537 So.2d at 920. As we discuss at some length .below, although K.A.L. argued in the trial court that attorney fees erroneously had been included in the amount she was directed to pay Southern Medical, she has not raised that claim of error on appeal.

      . Southern Medical’s proposed order is not contained in the record.


author: CRAWLEY, Judge.

text:
    Brenda Young MALONE v. Vernon Lewis MALONE.
    2010921.
    Court of Civil Appeals of Alabama.
    Jan. 17, 2003.

      Carl E. Chamblee, Sr., Birmingham, for appellant.
    Henry I Frohsin and W. Patton Hahn of Berkowitz, Lefkovits, Isom & Kushner, P.C., Birmingham, for appellee.
   CRAWLEY, Judge.

This is the second time these parties have been before this court. See Malone v. Malone, (No. 2010077, Nov. 22, 2002) — So.2d - (Ala.Civ.App.2002) (table) (“Malone I ”). At issue in Malone I was the propriety of the summary judgment entered in favor of Vernon Lewis Malone (“the husband”) against Brenda Young Malone (“the wife”) on the wife’s action seeking to set aside the parties’ 1997 divorce judgment on the grounds that the judgment was secured by means of a fraud on the court and on her petition to modify the divorce judgment seeking postminority educational support for the parties’ son. At issue in the present appeal is the propriety of the trial court’s award of $15,000 in attorney fees to the husband under the Alabama Litigation Accountability Act (“ALAA”), codified at Ala.Code 1975, § 12-19-270 et seq. A recitation of the lengthy procedural history of the two actions filed by the wife is necessary to the resolution of this appeal.

The parties were divorced in May 1997 after nearly 30 years of marriage. The parties mediated the property settlement and alimony issues, and their resulting settlement agreement was incorporated into the divorce judgment. In August 2000, the wife filed a verified petition, pursuant to Rule 60(b), Ala. R. Civ. P., to set aside the divorce judgment on the grounds of fraud and fraud on the court, because, she alleged, the husband had made several misrepresentations to induce her to enter the settlement agreement, which the court incorporated into the divorce judgment (case number CV-00-787) (“the Rule 60(b) action”). In September 2000, the wife filed a petition to modify the divorce judgment, requesting that the husband be ordered to pay for the son’s postminority educational expenses, including postgraduate studies (case number DR-96-352.02) (“the modification action”).

The husband filed a motion to dismiss the wife’s Rule 60(b) action; that petition was denied. He also filed a motion to dismiss, or, in the alternative, for a summary judgment, in the modification action. The trial court dismissed the modification action insofar as it requested postgraduate postminority educational support; it denied the motion to dismiss, or, in the alternative, for a summary judgment, on the basic postminority-educational-support issue. Finally, the trial court consolidated the actions into CV-00-787. The actions were set for trial on September 10, 2001. However, at various times, filings made in the modification action were not reflected on the case action summary sheet for the Rule 60(b) action. Therefore, we will address the filings in each action separately.

The husband filed a motion for sanctions pursuant to the ALAA on February 9, 2001, arguing that both the modification action and the Rule 60(b) action had been filed without substantial justification. In June 2001, the wife filed her first amendment to her petition in the Rule 60(b) action, which appeared to restate her fraud allegations and requested punitive damages; she also filed a jury demand. She later filed a second amendment to her petition in the Rule 60(b) action, in which she stated with more particularity exactly what facts the husband had allegedly fraudulently suppressed or misrepresented while the divorce proceeding was pending and during the mediation of the settlement agreement. That amendment was filed on August 30, 2001, less than 42 days before the date set for trial. On the same day, the wife also filed an amendment to her petition in the modification action.

On August 30, the husband filed a motion for a summary judgment, requesting a summary judgment as to the allegations raised in the Rule 60(b) action. The wife responded to the husband’s summary-judgment motion. On September 5, the husband filed a motion to dismiss the wife’s second amendment to the petition in the Rule 60(b) action. In that motion, the husband argued that the wife’s second amendment had been filed too late — less than 42 days before trial. On September 13, he filed a motion to dismiss the amendment to the petition in the modification action on the same ground.

The trial court entered a summary judgment as to all claims in both actions on September 7, 2001. On September 10, 2001, the trial court entered an order setting “all remaining issues for trial on November 16, 2001.” The husband filed a motion for clarification of the trial court’s September 7 judgment, explaining his belief that no issue remained for trial unless the trial court considered the issues raised by the wife’s late amendments to be pending and requesting that the trial court dismiss those amendments as untimely filed; the trial court purported to grant that motion on November 27.

The wife filed two notices of appeal on October 15. She appealed the summary judgment in the modification action to this court (appeal number 2010167). She appealed the summary judgment in the Rule 60(b) action (appeal number 2010077) to the Alabama Supreme Court, which transferred the ease to this court, pursuant to Ala.Code 1975, § 12-2-7(6). The appeals were then consolidated, and we affirmed the summary judgments without an opinion. Malone I.

On February 14, 2002, well after the wife filed her notices of appeal, the trial court granted the husband’s motion for attorney fees pursuant to the ALAA, awarding him $15,000 in fees. The wife now appeals that order. We dismiss the appeal.

The wife’s primary argument on appeal is that the trial court did not have jurisdiction to award the husband attorney fees after the entry of the summary judgments in September 2001 because the trial court failed to reserve jurisdiction to entertain the ALAA motion. See Meek v. Diversified Prods. Corp., 575 So.2d 1100, 1103 (Ala.1991); Donnell Trucking Co. v. Shows, 659 So.2d 667, 669 (Ala.Civ.App.1995); Baker v. Williams Bros., 601 So.2d 110, 112 (Ala.Civ.App.1992). She also argues that trial court had no jurisdiction to entertain the motion while her appeal of the summary judgments was pending in this court. See Horton v. Horton, 822 So.2d 431, 434 (Ala.Civ.App.2001) (explaining that once an appeal is taken, a trial court loses jurisdiction to act except on collateral matters and reiterating the principle that jurisdiction over a case may be in only one court at a time). She also points out that the trial court’s order is clearly deficient because (1) it does not make the necessary findings that the wife’s actions were brought without substantial justification, (2) it fails to state the grounds it relied upon in making that determination, and (3) it fails to enumerate the evidentiary support for that determination. See Pacific Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d 409, 418 (Ala.1993).

The husband argues that the trial court, when it granted his summary-judgment motion, entered a summary judgment on his ALAA attorney-fee request as well. Thus, he reasons, the trial court’s summary judgment did not result in the trial court’s losing jurisdiction over the ALAA request. However, this argument ignores the requirement that a trial court, in granting attorney fees under the ALAA, must make several specific findings. See Pacific Enters. Oil Co., 614 So.2d at 418. The trial court’s summary-judgment order, which is an order typed on the case action summary sheet, does not mention that the trial court is ruling on an award of attorney fees or costs under the ALAA or state that it intended to reserve jurisdiction over that matter, see Donnell Trucking Co., 659 So.2d at 669, and it does not find that the wife’s actions were brought without substantial justification and does not enumerate the grounds and evidentiary support for such a finding. The statute requires that an order awarding attorney fees under the ALAA contain those findings. Pacific Enters. Oil Co., 614 So.2d at 418. Thus, we cannot conclude that the trial court’s summary-judgment order granted the husband’s ALAA motion or that it reserved jurisdiction over the issue.

The husband also argues that the wife’s purported August 30 amendments added claims that remained pending in the trial court, thus preventing the summary judgment from being final. Interestingly, the husband notes in a footnote in his brief to this court that he did not make this argument in his brief in the appeals numbered 2010077 and 2010167. We have concluded, however, that the wife’s August 30 amendments were filed too late to add any claims to either the Rule 60(b) or the modification action.

Rule 15(a), Ala. R. Civ. P., requires that a party desiring to amend a pleading less than 42 days before trial must seek leave of the court; it states that leave will be granted “only upon a showing of good cause.” The comments to Rule 15 indicate that the rule “requires a written motion” seeking such leave and also requires notice to all parties. Rule 15, “Committee Comments on 1973 Adoption.” The wife did not seek leave of the court and did not present any ground upon which the trial court may have allowed such late amendments. Therefore, the wife’s purported amendments were never “allowed” and did not serve to inject additional claims. Accordingly, we do not agree that the trial court’s summary judgment was not a final judgment.

We agree with the wife that the trial court lost jurisdiction to entertain the husband’s ALAA motion 30 days after entering the summary judgment in September 2001 because it failed to specifically reserve jurisdiction over that issue. Donnell Trucking Co., 659 So.2d at 669. The trial court’s attempt to award attorney fees five months after the entry of the summary judgment is void. Id. Because a void judgment will not support an appeal, Veteto v. Yocum, 792 So.2d 1117, 1119 (Ala.Civ.App.2001), we dismiss the husband’s appeal. The trial court is instructed to vacate its order awarding the husband $15,000 in attorney fees pursuant to the ALAA.

APPEAL DISMISSED.

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

      . The husband objected to the wife's amendments. We note that the trial court, after the wife’s notices of appeal in 2010077 and 2010167 were filed, purportedly "dismissed” the wife's late-filed amendments.


author: MURDOCK, Judge.

text:
    KEYSTONE AUTOMOTIVE INDUSTRIES, INC. v. John William STEVENS a/k/a Johnny Stevens; and Precision Bumpers, L.L.C.
    2010220.
    Court of Civil Appeals of Alabama.
    Jan. 17, 2003.

      Banks C. Ladd, Mobile; and Michael T. Murphy, Mobile, for appellant.
    Donald M. Briskman of Briskman & Binion, P.C., Mobile, for appellees.
   MURDOCK, Judge.

Keystone Automotive Industries, Inc. (“Keystone”), sued John William Stevens, a former employee, in the Mobile Circuit Court seeking to enforce a noncompetition agreement. Keystone filed a motion seeking a partial summary judgment on the issue of liability. Stevens filed a response to Keystone’s motion and an alternative motion for a summary judgment. Following an evidentiary hearing, the trial court entered a summary judgment in favor of Stevens. Keystone appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7, Ala.Code 1975.

Keystone produces, repairs, and refabri-cates certain automobile parts, including bumpers, selling them to the general public and to automotive-repair businesses. Keystone’s Mobile operation distributes to customers in the Alabama and Mississippi Gulf Coast areas as well as the Florida Panhandle. In 1996, Keystone purchased the retail sales department of After Market Parts & Supply, Inc. (“AMPS”), a bumper-refabrication business located in Mobile. At the time of the purchase, Stevens was a sales manager at AMPS, and, in order to retain employment with Keystone, Stevens was required to sign an employment contract containing a noncom-petition clause; the clause provided that for two years following the termination of his employment with Keystone Stevens would

“not plan, organize or work for a competitive business, if the loyal and complete fulfillment of the duties of the competitive employment would demand by their very nature that [Stevens] reveal Keystone’s secrets. [And not] contact any customers of Keystone for the purpose of soliciting their business or making a request for bid information.”

Stevens remained employed with Keystone from August 1996 to March 2000.

Stevens initially worked as a sales manager at Keystone. However, because of an increase in problems in the production department, Stevens was transferred to that department in January 2000. When his requests to return to the sales department were refused, Stevens left Keystone and organized his own company, Precision Bumpers, L.L.C., which sells bumpers to retailers. Several of Precision Bumpers’ customers include those retailers to whom Stevens sold products while he worked at AMPS and, later, while he was employed by Keystone.

It is well settled under Alabama law that the party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P. If the moving party meets its burden, “ ‘the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact.’ ” Cremeens v. City of Montgomery, 779 So.2d 1190, 1191 (Ala.2000) (quoting Machen v. Childersburg Bancorporation, Inc., 761 So.2d 981, 984 (Ala.1999)). Evidence is substantial if it is 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 reviewing a motion for a summary judgment, the court must view the evidence in a light most favorable to the nonmoving party and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

Section 8-1-1, Ala.Code 1975, provides, in pertinent part:

“(a) Every contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind otherwise than is provided by this section is to that extent void.
“(b) ... [0]ne who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city, or part thereof so long as the ... employer carries on a like business therein.”

Section 8-1-1 expresses the public policy of Alabama that contracts restraining employment are disfavored. James S. Kemper & Co. v. Cox & Assocs., 434 So.2d 1380, 1384 (Ala.1983). Courts, however, will enforce a covenant not to compete if:

“(1) the employer has a protectable interest;
“(2) the restriction is reasonably related to that interest;
“(3) the restriction is reasonable in time and place; [and]
“(4) the restriction imposes no undue hardship [on the employee].”

DeVoe v. Cheatham, 413 So.2d 1141, 1142 (Ala.1982); see also Restatement (Second) of Contracts § 188, Comment B (1981). The person or entity seeking to enforce the covenant has the burden of showing that it is not void under § 8-1-1, Ala. Code 1975. Calhoun v. Brendle, Inc., 502 So.2d 689, 693 (Ala.1986).

Regarding the first factor, our Supreme Court has explained that in order to have a protectable interest, the employer must possess “ ‘a substantial right in its business sufficiently unique to warrant the type of protection contemplated by [a] noncompetition agreement.’ ” DeVoe, 413 So.2d at 1142 (quoting Cullman Broad. Co. v. Bosley, 373 So.2d 830, 836 (Ala.1979)). Moreover, “[a] protectable interest may exist when an employee is ‘in a position to gain confidential information, [to gain] access to secret lists, or to develop a close relationship with clients.’ Clark v. Liberty Nat’l Life Ins. Co., 592 So.2d 564, 566 (Ala.1992) (quoting DeVoe, 413 So.2d at 1143) (emphasis added).

During the evidentiary hearing, the trial court explained that, based on the testimony by Stevens and other employees of Keystone, it did not appear that Keystone had a protectable interest. Stevens testified that he gained his client relationships and sales knowledge before he was employed by Keystone. He further testified that throughout his adult life he had worked in some aspect of automobile repair and sales and, as a result, had developed a network of contacts and associates. According to a manager for Keystone, Stevens had dealt with the same customers he had worked with before his employment with AMPS and Keystone. The manager also testified that Stevens’s knowledge concerning the customer base and customer needs was acquired before Stevens’s employment with Keystone and that Stevens’s duties and responsibilities at Keystone were the same as they had been at AMPS. Based on this testimony, the trial court concluded that Keystone did not have a protectable interest that justified enforcement of the noncompetition agreement.

The evidence indicates that Stevens maintained close client relationships. Although Stevens may have initially met and established relationships with those customers while working at AMPS, there was evidence tending to indicate that he was provided the means to nurture, maintain, and further develop those relationships during the approximately four years he was employed with Keystone. The testimony established that Stevens’s job involved developing relationships with customers by, among other things, taking them to lunch and visiting retail body shops. Stevens explained that his job involved helping Keystone retain AMPS’s customers. A manager for Keystone testified that Keystone gained new customers during Stevens’s tenure at the company and that Keystone sold different products than were sold by AMPS. Testimony also indicated that because Stevens was not working as a full-time salesman before his employment with AMPS, he likely made new contacts while working for AMPS and Keystone and formed stronger relationships with those customers he already knew. Moreover, the manager for Keystone further explained that when the sales representatives for the various companies with whom Keystone did business changed, Stevens knew who to contact because he was aware of who were the purchasing agents for each retailer. Finally, Stevens was aware of the purchase amounts for each Keystone customer, the amount owed by each Keystone customer, and the rebates and discounts Keystone gave particular customers. Based on the evidence presented, there exists a genuine issue of material fact as to whether Keystone had a protectable interest. The trial court erred in concluding otherwise.

The summary judgment in favor of Stevens is reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

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

      . This standard for reviewing a summary-judgment motion is applicable in the present case even though the trial court held an evi-dentiary hearing. See Middaugh v. City of Montgomery, 621 So.2d 275 (Ala.1993).


author: YATES, Presiding Judge.

text:
    INTERNATIONAL PAPER COMPANY v. Bobby BRACKNELL.
    2011138.
    Court of Civil Appeals of Alabama.
    Jan. 24, 2003.

      Roy W. Scholl III, Centreville, for appellant.
    Rickman E. Williams III of Pitts, Pitts & Williams, Selma, for appellee.
   YATES, Presiding Judge.

Bobby Bracknell sued his employer, International Paper Company, on May 24, 2001, seeking to recover workers’ compensation benefits and alleging that during the course of his employment with International Paper he had been continuously exposed to hard-metal dust and as a result of that exposure had sustained a permanent injury to his lungs. On December 4, 2001, Bracknell moved the court to order International Paper to pay him temporary total-disability benefits to which he alleged he was entitled beginning on the date that he was last employed with International Paper. Bracknell also alleged that the benefits were overdue, and he sought the 15% penalty provided by § 25-5-59(b), Ala. Code 1975.

Following a hearing on the motion, the trial court, on July 13, 2002, entered the following order:

“1. That the Defendant is hereby ordered to pay to the Plaintiff within fourteen (14) days of this Order temporary total disability benefits in the amount of ... $32,201.40. The Court notes that the evidence presented at the hearing on this matter indicates that it was not until May 16, 2002, until the Defendant’s expert, Dr. Allen R. Goldstein, and the Plaintiffs treating physician, Dr. Richard Champion, were able to identify the cause of Plaintiffs lung problems. Further, both doctors agreed that the Plaintiff was unable to return to work during the time period between April 9, 2001, through May 16, 2002. However, it does appear to the Court that the Plaintiff reached maximum medical improvement on or about May 16, 2002, when both pulmonologists, Dr. Allen R. Goldstein and Dr. Richard Champion identified the cause of Plaintiffs lung problems associated with his employment at International Paper to be a hypersensitivity pneumonitis.
“2. The Court further orders that Plaintiffs request for a 15% penalty under Alabama Code Section 25-5-59(b) to be assessed against the Defendant, International Paper Company is hereby denied.
“3. All other matters are left for future orders of this Court.”

International Paper Company appeals.

Bracknell argues, among other things, that the trial court’s judgment is not a final judgment from which an appeal may be taken. We agree. This court has stated:

“We note that in a workers’ compensation case the decision of the judge hearing the case shall be conclusive and binding between the parties. A party may appeal to the appropriate appellate court from any final judgment of the circuit court or probate court. An ap-pellate court is without jurisdiction to review a matter where no final judgment has been entered. The determination whether a judgment is final does not depend on the title of the order; rather, the determination whether a judgment is final depends on whether it sufficiently ascertains and declares.the rights of the parties.”

B E & K, Inc. v. Weaver, 743 So.2d 476, 478-79 (Ala.Civ.App.1999) (citations omitted).

In B E & K, Inc., the employer petitioned the court for resolution of a disputed workers’ compensation claim. The trial court, by agreement of the parties, tried only the issue of compensability. Following an ore tenus proceeding, the trial court entered an order finding that the employee had suffered a compensable injury and that the employer had paid medical benefits; the court ordered the employer to pay past total-disability benefits, including the 15% penalty provided by § 25-5-59(b), Ala.Code 1975, temporary total-disability benefits and future medical benefits; and it awarded costs and expenses. However, the trial court did not make a determination as to any permanent disability because the employee had not yet reached maximum medical improvement. The employee argued that the judgment was not an appealable order because, he argued, there were matters between the parties that were yet to be decided. This court stated that a determination as to any permanent disability could not be made at the time of the hearing because the employee had not yet reached maximum medical improvement. This court determined that the judgment entered by the trial court sufficiently ascertained the rights of the parties and was an appealable order. Id., at 480.

The order granting temporary total-disability benefits to Bracknell does not adjudicate all of the issues pending between the parties in this case. The trial court was presented with evidence from Brack-nell’s treating physician and International Paper’s expert, and it determined that Bracknell had reached maximum medical improvement on May 16, .2002; however, the trial court made no determination as to the extent of any permanent disability suffered by Bracknell. We conclude that the trial court’s order does not sufficiently ascertain the rights of the parties in this case so as to be a final appealable order; therefore, this court does not have jurisdiction of this case at this time.

APPEAL DISMISSED.

CRAWLEY, THOMPSON, PITTMAN, and MURDOCK, JJ., concur.