author: LYONS, Justice.

text:
    Andy CARVER v. Kimberly Carver FOSTER and Christa Carver Moses Burroughs.
    1040910.
    Supreme Court of Alabama.
    Nov. 18, 2005.

      Jesse M. Williams III of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant.
    Charles A. Hardin of Hardin & Hughes, LLP, Tuscaloosa, for appellees.
   LYONS, Justice.

I. Facts and Procedural History

This case involves seven parcels of land located in Tuscaloosa County totaling 1,162 acres. Kimberly Carver Foster, one of the plaintiffs below, owned an interest in each of the seven parcels. Various combinations of members of the Carver family also owned interests as cotenants in those parcels. Christa Carver Moses Burroughs, also a plaintiff below, owned an interest in five of the seven parcels. None of the seven parcels of land was owned by all of the cotenants involved in this case. Kimberly and Christa jointly filed a complaint for a sale of the land and a division of the proceeds, requesting that the trial court order that each parcel be sold, and the proceeds from each parcel divided among its cotenants. Kimberly and Christa named their cotenants, Tommy Carver, Wayne Carver, Doria Carver, and Andy Carver, as defendants in the complaint. The defendants answered Kimberly and Christa’s complaint and requested that the trial court allow them to purchase the interests of their cotenants in each parcel pursuant to § 35-6-100, Ala.Code 1975, which provides:

“Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing ... the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not.”

Subsequently, Kimberly and Christa filed their own requests to purchase the interests of their cotenants.

The trial court appointed an appraiser to determine the value of each parcel. The parties agreed to a private auction, in which the starting bid was set at the appraised value of each parcel, and each subsequent bid increased from that value.

The auction resulted in the following high bids for the parcels:

Christa and Kimberly jointly bid $37,500 for parcel A;
Tommy bid a total of $45,600 for parcels B and C;
Christa and Kimberly jointly bid $710,000 for parcel D;
Wayne bid $725,000 for parcel E;
Tommy bid $977,100 for parcel F; and Doria bid $380,000 for parcel G.

After the auction, the attorney for Kimberly and Christa filed a petition for an attorney fee pursuant to § 34-3-60, Ala. Code 1975, which states:

“In all actions and proceedings in the probate courts and circuit courts and other courts of like jurisdiction, where there is involved the administration of a trust, or where there is involved the sale of property for distribution, or where there is a partition in kind of real or personal property between tenants in common, the court having jurisdiction of such action or proceeding may ascertain a reasonable attorney’s fee, to be paid to the attorneys or solicitors representing the trust, joint or common property, or any party in the action or proceeding, and is authorized to tax as a part of the costs in such action or proceeding such reasonable attorney’s fee, which is to be paid when collected as the other costs in the proceeding to such attorneys or solicitors as may be directed or ordered by the court and to be a lien on the several parts in case of partition in kind.”

The defendants, including Andy Carver, who is the appellant here, objected to the request by the plaintiffs’ attorney for an attorney fee. In addition, after the auction Andy filed a petition requesting that the trial court recognize him as having a one-fourth interest in the hunting, fishing, and mineral rights to parcel A, for which Christa and Kimberly had been the high bidders at the auction.

The trial court granted the request by the plaintiffs’ attorney for a fee and ordered each defendant who sold his or her interest in a parcel of land to pay the plaintiffs’ attorney 7% of the portion of the high bid attributable to that interest and ordered each plaintiff who sold an interest in a parcel of land to pay 10% of the portion of the high bid attributable to that interest. The trial court denied Andy’s request that he be granted an interest in the mineral, hunting, and fishing rights to parcel A. The defendants filed motions to alter, amend, or vacate the trial court’s rulings, which the court denied.

Only Andy appealed, arguing that § 34-3-60 does not apply to co-owner purchases under § 35-6-100 et seq. He also argues that, even if § 34-3-60 does generally apply to co-owner purchases, an attorney fee should not have been allowed in this case because, he says, the services of the plaintiffs’ attorney did not benefit all of the parties involved and there was no common fund created from which to pay the fee. Next, Andy argues that, even if the trial court was correct in awarding an attorney fee in this case, the actual fee awarded was excessive. Finally, Andy argues that the trial court erred in refusing to recognize his interest in the hunting, fishing, and mineral rights to parcel A.

II. Standard of Review

Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

“The allowance of attorney’s fees to be paid as costs in [sale of property for distribution cases or where there is a partition in kind of real or personal property between tenants in common] rests largely in the discretion of the trial court. Mann v. Mann, 451 So.2d 783 (Ala.1984); Bidwell v. Johnson, 191 Ala. 195, 67 So. 985 (1915). This is an ‘advised, just, judicial and revisable discretion in the light of the whole record.’ Dent v. Foy, 214 Ala. 243, 107 So. 210 (1925), Matthews v. Lytle, 220 Ala. 78, 124 So. 197 (1929).”

Irons v. Le Sueur, 487 So.2d 1352, 1359 (Ala.1986).

III. Analysis

A.

Andy’s first argument is that § 34-3-60 does not apply to co-owner purchases under § 35-6-100 et seq. He points out that § 34-3-60 was adopted before the co-owner-purchase provisions found in § 35-6-100 et seq. were adopted, and that those provisions, while allowing an award of appraiser fees, make no mention of attorney fees or of § 34-3-60.

We disagree. Section 34-3-60 provides:

“In all actions and proceedings ... where there is involved the sale of property for distribution, ... the court having jurisdiction of such action or proceeding may ascertain a reasonable attorney’s fee, to be paid to the attorneys or solicitors representing ... any party in the action or proceeding....”

“Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.” IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). Section 34-3-60 clearly applies to “all actions and proceedings ... where there is involved the sale of property for distribution.” (Emphasis added.) Proceedings under § 35-6-100 et seq. involve the sale of property for distribution. The interests in the parcels of land involved in this case were sold pursuant to court order, and the proceeds were distributed to the various owners of those interests. At the time of the enactment of § 35-6-100, the catchall language of § 34-3-60 had been the law of this State for over 70 years. The legislature does not operate in a vacuum each time it enacts new legislation; it is charged with knowledge of existing law. Hexcel Decatur, Inc. v. Vickers, 908 So.2d 237, 240 (Ala.2005). If the legislature intended to except proceedings under the co-owner-purchase provisions from the broadly phrased reach of § 34-3-60, it could easily have done so. Whether the applicability of § 34-3-60 to co-owner purchases is sound public policy is a matter within the purview of the legislature, not this Court.

B.

Andy’s next argument is that the services of the plaintiffs’ attorney did not benefit all the parties involved in the sale of the property for a division of the proceeds. See, generally, Ex parte Martin, 775 So.2d 202, 206 (Ala.2000) (noting that an attorney fee can be awarded under § 34-3-60 only if the services of the attorney were performed “ ‘for the common benefit of all.’ ” (quoting the 1907 codification of what is now § 34-3-60) (emphasis added in Martin)). Specifically, Andy points out that the trial court ruled that one of the parties, Doria Carver, was not required to pay any portion of the attorney fee because the plaintiffs’ attorney spent a significant amount of time resisting Dorla’s owelty claim. Andy contends that, because the trial court held that some of the actions of the plaintiffs’ attorney were adverse to Dorla’s interests in the proceedings, none of the other defendants should have been required to contribute to the attorney fee. In other words, according to Andy, “[i]f there is an adverse claim, it affects the whole group, destroying a common benefit to all, i.e., one bad apple spoils the whole barrel.” (Andy’s brief, at 30-31.)

The three cases Andy cites in support of his so-called “bad apple” argument involved parcels of land in which all the cotenants owned an interest, and the attorneys who claimed to be entitled to fees in those cases performed acts adverse to some of those eotenants. See Godwin v. Dorgan, 811 So.2d 503 (Ala.2001); Shirley v. Mazzone, 591 So.2d 469 (Ala.1991); and Jernigan v. Jernigan, 678 So.2d 1169 (Ala.Civ.App.1996). In contrast, the instant case involves the sale of multiple parcels of land, none of which was jointly owned by all the cotenants. The proceedings below in effect consisted of six separate private sales of land for a division of the proceeds.

The only parcel in which Doria had an ownership interest before the auction was parcel G. Andy did not have an interest in parcel G. Therefore, we consider the sale of Andy’s interests separate from the sale of Dorla’s. Regardless of whether Doria benefited from all the services of the plaintiffs’ attorney with respect to the sale of parcel G, if Andy and his cotenants in the parcels in which he actually had an ownership interest benefited from those services (as to those parcels), Andy’s bad-apple argument must fail. In other words, if Andy and his cotenants benefited, at least with respect to the sale of Andy’s interests, there was no bad apple, because there were no disparate interests among his co-tenants.

The other cotenant, other than Doria, Andy contends did not benefit from the services of the plaintiffs’ attorney is Andy himself. He argues that he never wanted to sell his interests in the real property. However, he cites no authority for the proposition that, in a sale-for-division case, the fact that a cotenant did not want to sell his interest in property defeats a finding, for purposes of determining whether to award an attorney fee, that there was a common benefit, and we decline to so hold. See also Shirley v. Mazzone, 591 So.2d at 472 (Houston, J., concurring specially) (“ ‘The common benefit is in bringing about a division of the lands through a judicial sale, so that each of the joint owners can have and enjoy his own.’ ” (quoting Dent v. Foy, 214 Ala. 243, 248, 107 So. 210, 215 (1925))). The plaintiffs point out that Andy received $597,000 in exchange for his interests in the real property, approximately $240,000 more than the appraised value of those interests. We agree with the plaintiffs and the trial court that Andy benefited from the services of their attorney.

C.

Andy also argues that, even if this Court finds that a common benefit existed, which we have, the trial court erred in awarding fees to the plaintiffs’ attorney because, Andy contends, there was no “common fund” from which to award those fees. He points out that, before the auction, each party desiring to purchase the interest or interests of his or her cotenants paid into court an amount equal to the appraised value of those interests. The bids at the auction were based on the values of the parcels. After the auction, the winning bidder was to pay into court the difference between the portion of the winning bid attributable to the purchase price of his or her cotenants’ interests and the amount the high bidder had previously paid into court based on the appraised value of those interests. Andy argues that

“[b]ecause of the complexity of the ownership and varying ownership interests, there is no common fund. The amount paid into court by the highest bidder on each parcel was a separate fund belonging only to the losing bidder or bidders on that parcel. To hold, as the trial court did, that these six separately owned amounts of money constituted one common fund is ... obvious error.”

(Andy’s brief, at 32.)

The cases Andy cites in support of his argument do not expressly hold that the absence of a common fund in a sale-for-division ease prevents the trial court from awarding an attorney fee under § 34-3-60. In Godwin, supra, the Court did note that a common fund existed from which the attorneys requested that their fees be paid, and the Court stated that § 34-3-60 “plainly authorizes a trial court to order that attorney fees be paid out a common fund created by the sale of property.” But the questions of whether a common fund must exist before fees may be awarded under § 34-3-60, and, if so, what constitutes such a fund, were not answered in Godwin.

In Shirley, supra, the Court described the issue as “whether the award of attorney fees to the plaintiffs’ counsel out of the proceeds of a sale of certain real property in Baldwin County was erroneous.” 591 So.2d at 469. As in Godwin, the Court in Shirley • did not answer the question of what constitutes a common fund and whether a common fund must exist before an attorney fee may be awarded under § 34-3-60.

In Jemigan, supra, the Alabama Court of Civil Appeals considered the propriety of the trial court’s award of attorney fees from what that court described as a common fund, which appears from the opinion to have been generated from the sale of real property held jointly by tenants in common. But, like Godwin and Shirley, Jemigan did not directly address the question whether a common fund must exist before an attorney fee may be awarded under § 34-3-60.

In any event, Godwin, Shirley, and Jemigan each involved the sale of a parcel or parcels of land in which all cotenants held an interest. The instant case involves multiple parcels, none of which were owned by all the cotenants. And at least with respect to the sale of the parcels of land in which Andy held interests, to the extent there exists a requirement that, before an attorney fee may be awarded under § 34-3-60 in a sale-for-division case there must have been created a common fund from which the attorney fee was to be taken, that requirement has been met. The attorney fee due for the sale of those parcels in which Andy held an interest was calculated based on the highest bid for each of those parcels. Andy was required to pay, as an attorney fee, a percentage of the portion of the winning bid attributable to his interests, as were all of his cotenants in those parcels. The “common fund” resulting from the sale of each parcel of land, if the existence of such a fund was required, was the amount of the winning bid for each parcel.

To the extent that Andy argues that the moneys making up the common fund must be paid into court or otherwise deposited in a common account before they can form the basis of an attorney-fee calculation, the Court’s holding in Mann v. Mann, 451 So.2d 783 (Ala.1984), answers that argument. In Mann, the trial court ordered that part of a tract of land owned by tenants in common be partitioned and the remainder of the tract sold. The plaintiff in Mann owned the portion of the tract that was partitioned. The trial court ordered an attorney fee to be paid in part from the proceeds of the sale, but also ordered the 'plaintiff to pay into court her share of the attorney fee. This Court affirmed the trial court’s order as a valid exercise of its discretion under § 34-3-60.

D.

Andy alternatively argues that, even if the trial court did not err in awarding an attorney fee, the actual fee awarded was excessive. In Irons v. Le Sueur, supra, a case involving an award of attorney fees under § 34-3-60 after a sale for division, this Court, citing Peebles v. Miley, 439 So.2d 137 (Ala.1983), noted 12 factors a trial court needs to consider in awarding an attorney fee:

“(1) the nature and subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the professional experience and reputation of the attorney; (5) the weight of the attorney’s responsibility; (6) the measure of success achieved; (7) the reasonable expenses incurred by the attorney; (8) whether the fee is fixed or contingent; (9) the nature and length of a professional relationship; (10) the fee customarily charged in the locality for similar legal services; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances.”

487 So.2d at 1359.

In its order awarding the attorney fee, the trial court stated that “the following criteria had some application in this case: (1) the time consumed, (2) the professional experience and reputation of the attorney, (3) the measure of success achieved, (4) as to Plaintiffs, whether a fee is fixed or contingent, and (5) the fee customarily charged in the locality.”

While the trial court indicated in its order that in setting the attorney fee it considered the time the plaintiffs’ attorney had spent on the case, Andy points out that the plaintiffs’ attorney did not testify as to the amount of time he spent, nor did he submit any time records to the trial court. We note that the plaintiffs, in response to this contention, cite only a brief they filed with the trial court in support of their petition for an attorney fee in which they stated that their attorney spent 200-300 hours working on the case. However, “ ‘briefs of counsel, with the statements of their contentions, [are] not evidence in the case.’ ” Burkes Mech., Inc. v. Ft. James-Pennington, Inc., 908 So.2d 905, 911 (Ala.2004) (quoting Fleming v. Copeland, 210 Ala. 389, 391, 98 So. 128, 129 (1923)). The record below on this issue consists of hypothetical questions posed to an expert asking him to assume that 200 to 300 hours had been expended on this case. Proof of the assumption, however, is essential. See the Advisory Committee’s Notes to Rule 703, Ala. R. Evid. (“Rule 703 leaves unaffected the preexisting Alabama law requiring that the facts or data relied upon by the expert, and gotten by the expert other than by firsthand knowledge, generally must be admitted into evidence.”).

Even if we were to treat the plaintiffs’ estimate as sufficient proof of the time spent by their attorneys on the case, it translates into a fee of $650-$970 per hour for all of the work done in the case. As noted, Andy is the only defendant below to appeal the trial court’s judgment. Therefore, we do not consider whether the fee awarded based on the work benefiting the other defendants was excessive. Of course, we have no way of determining exactly how much time the plaintiffs’ attorney spent working on the sale of the parcels in which Andy had an interest, as opposed to the other parcels.

At the hearing on the request for an attorney fee by the plaintiffs’ attorney, much testimony was elicited regarding the customary fee of 10% of the sales price of the property involved. Indeed, in reading the trial court’s order, it appears that particular factor weighed heavily in the court’s decision. We are mindful that, in Anderson v. Lee, 621 So.2d 1305, 1307 (Ala.1993), a case involving a sale for distribution and an award of attorney fees under § 34-3-60, this Court did state that “all of [the 12 Peebles ] criteria need not be met.” But the Court in Anderson did not specifically hold that time expended was a criterion that need not be considered. In fact, while the attorney fee awarded in Anderson amounted to 10% of the total proceeds of the sale of the real property, the fact that the attorney had expended 200 hours on the case contributed to the Court’s approving a fee of $20,000. A fee of $20,000 for 200 hours of work translates into $100 per hour.

Courts in other jurisdictions have held that fees in these types of cases should be based on more than simply a percentage of the value of the property divided or sold. See, e.g., Nelson v. Hotchkiss, 601 S.W.2d 14, 21 (Mo.1980) (“The attorney [in a partition proceeding] is entitled to a reasonable fee in light of the nature and extent of the services rendered, and the fee should not be calculated according to an arbitrary, fixed percentage of the value of the property involved.”); Brooks v. Kunz, 597 S.W.2d 183, 189 (Mo.Ct.App.1980) (“Although it is error to base the fee award solely on a percentage of the sale price, the sale price is one factor for consideration by the court in establishing the fee. In this case, however, there was no other substantial evidence to support the award. Therefore, the judgment on this point must also be reversed and remanded.”); and Muller v. Martin, 116 Cal.App.2d 431, 435, 253 P.2d 686, 688-89 (1953) (“In making this analysis of plaintiffs computations, we are not holding that there is any fixed percentage or range of percentages for use as a formula in determining the reasonableness of fees to be paid for services [in partition and sale-for-division cases]. The real question is the reasonable worth or value of the services rendered. The ratio that sum bears to the total value of the property involved will naturally vary as the conditions and circumstances attending the partition and sale vary.”).

We hold that, although the value of the property involved or the amount of sale proceeds in a partition or sale-for-division case is relevant to considerations such as the risk associated with undertaking the responsibility for rendering appropriate legal services, the reasonableness of an attorney-fee award cannot be based solely on an arbitrary percentage of that value. The fee must bear a reasonable relationship to the time expended on the case, in light of the hourly rate of attorneys practicing in the community. In addition, the fact that no periodic payments are made until the case is over may also play a role in enhancing an otherwise normal hourly rate. Of course, maintenance of accurate time records and due proof at an attorney-fee hearing of time expended by counsel could in a proper case justify an award in excess of a customary percentage of the proceeds of the sale. Nevertheless, we find the conclusion in Brooks v. Kunz, supra, applicable to this proceeding. As the court there stated, “Although it is error to base the fee award solely on a percentage of the sale price, the sale price is one factor for consideration by the court in establishing the fee. In this case, however, there was no other substantial evidence to support the award.” 597 S.W.2d at 189.

This Court has historically accepted local custom as to a percentage fee in a partition or a sale-for-division proceeding as “persuasive, but not conclusive, of the reasonable value of such service.” Dent v. Foy, 214 Ala. 251, 252, 107 So. 218, 218 (1925). Obviously, the learned trial court here applied the rule of Dent when it reduced the customary percentage of 10% to 7%. Nevertheless, we conclude that the trial court exceeded its discretion in its determination of the amount of the attorney fee payable by Andy. We therefore reverse its judgment as to this issue and remand the case for the trial court to determine how much time the plaintiffs’ attorney expended in facilitating the sale allocable to the parcels in which Andy sold his interests and to award a reasonable fee commensurate with the time spent, as well as other factors, including the absence of periodic payments, any risk associated with the appropriate discharge of legal responsibilities in the undertaking, and any other applicable factors set forth in Peebles and Irons v. Le Sueur.

E.

Andy’s final contention on appeal is that the trial court erred in refusing to recognize his interest in the hunting, fishing, and mineral rights to parcel A. At the auction, Kimberly and Christa were the high bidders on parcel A. Andy made no mention of his claimed rights in any of his pleadings filed with the trial court before the auction was held. The complaint for sale of the property for the division of the proceeds described the ownership interests in parcel A, making no mention of the hunting, fishing, or mineral rights. In Andy’s answer to that complaint, he admitted the allegations respecting ownership interests, and he made no mention of his alleged claim to such rights until after the auction had been held.

“[T]he doctrine of judicial es-toppel ‘applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted.’ ” Selma Foundry & Supply Co. v. Peoples Bank & Trust Co., 598 So.2d 844, 846 (Ala.1992) (quoting Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3d Cir.1988)). “The law is settled in Alabama that a party who has, with knowledge of the facts, assumed a particular position in a judicial proceeding is estopped from assuming a position inconsistent to the first one to the prejudice of an adverse party.” Russell v. Riissell, 404 So.2d 662, 665 (Ala.1981). It appears from the record that parcel A was appraised without taking into account any encumbrance on the hunting, fishing, or mineral rights. Kimberly and Christa made the high bid on parcel A with the understanding that they would own it free and clear, and Andy, who owned a coten-ant interest in that parcel before the auction, benefited from that high bid. We agree with the trial court that Andy’s petition for hunting, fishing, and mineral rights to parcel A was due to be denied.

TV. Conclusion

The judgment of the trial court is affirmed insofar as it holds that § 34-3-60 applies to co-owner purchases under § 35-6-100 et seq. The judgment is also affirmed as to its application of the common-benefit theory and its recognition of a common fund from which to pay the attorney fee and insofar as it rejects Andy’s petition for hunting, fishing, and mineral rights to parcel A. The trial court’s judgment is reversed, however, as to the amount of the attorney fee awarded, and the cause is remanded for further proceedings consistent with this opinion as to that issue as it relates to Andy’s liability for payment of the attorney fee.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

NABERS, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . Andy was not the high bidder for any of the parcels at the auction.

      . According to the trial court's order awarding attorney fees, the trial court found that the plaintiffs' attorney spent some of his time challenging the owelty claim (see note 4) of one of the defendants and did not have to perform certain services usually necessary in sale-for-division cases. Therefore, the trial court made a downward adjustment of 3% from the customary 10% fee for sale-for-division cases.

      . The trial court stated in its order that, because of a contingency-fee contract between the plaintiffs and their attorney and because of the services the plaintiffs’ attorney devoted to the plaintiffs’ interests, the court did not make a downward adjustment of the customary 10% as to the fee charged the plaintiffs.

      . Owelty of partition is a sum of money paid by one cotenant to the other " 'when a partition has been effected between them, but, the land not being susceptible of division into exactly equal shares, such payment is required to make the portions respectively assigned to them of equal value.' ” English v. Brantley, 361 So.2d 549, 552 (Ala.1978) (quoting Black's Law Dictionary 1258 (4th ed.1968)).

      . While there were seven parcels of land involved, two of those parcels (parcels B and C) were combined and auctioned off together.

      . Doria maintains an ownership interest in parcel G, as she was the high bidder on that parcel at the auction.

      . Andy argues in his reply brief that, because the plaintiffs' attorney resisted Andy’s request that he be awarded an interest in the hunting, fishing, and mineral rights to parcel A, Andy did not benefit from the attorney’s services. Andy does not make this argument in his opening brief. "[T]his Court does not address issues raised for the first time in a reply brief.” Byrd v. Lamar, 846 So.2d 334, 341 (Ala.2002). In any event, we note that Andy’s petition for hunting, fishing, and mineral rights to parcel A was not filed until after the auction was held, after all parties had requested the court to confirm the sales of the interests in the parcels, and after the plaintiffs had filed their petition for an attorney fee. In other words, Andy's claim for hunting, fishing, and mineral rights was not filed until after the plaintiffs' attorney had performed all of the services for which he claimed to be entitled to compensation.

      . Andy states that there are "six separately owned amounts of money” rather than seven because two of the parcels were combined and auctioned together (see note 5).

      . Andy cites Godwin, Shirley, and Jemigan.

      . It appears from the briefs and the record that the plaintiffs’ current attorney was not the only counsel to represent the plaintiffs below. During the hearing on the issue of attorney fees, the plaintiffs' attorney suggested to an expert witness that the plaintiffs’ former counsel had an interest in any fee that might be awarded. However, there is no evidence indicating how much time that former counsel expended on the case in addition to the 200-300 hours the plaintiffs' current attorney posited that he had expended.

      . We are not here confronted with the type of risk associated with a contingency-fee contract for a tort claim in which the risk of nonrecovery justifies a substantially higher percentage.

      . Because none of the other defendants appealed from the trial court's judgment, the reasonableness of the attorney fee as to them is not before us.


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    Bryan S. PUNTURO v. Wanda Punturo YOUNG.
    2990281.
    Court of Civil Appeals of Alabama.
    June 2, 2000.
    Rehearing Denied Sept. 29, 2000.

      Randall W. Nichols and Anne D. Lamkin of Massey & Stotser, P.C., Birmingham, for appellant.
    Robert F. Prince of The Prince Law Firm, P.C., Tuscaloosa, for appellee.
   THOMPSON, Judge.

Wanda Punturo Young and Bryan S. Punturo were divorced by a judgment of the Circuit Court for the County of Grand Traverse, Michigan, dated June 4, 1993. Two children were born of the parties’ marriage. Pursuant to the Michigan divorce judgment, the parties were awarded joint custody of the minor children, with the mother having primary physical custody. The mother and the two children have resided in Alabama since 1992.

On January 19, 1999, the mother filed in the Circuit Court of Tuscaloosa County a petition to modify the Michigan divorce judgment. In her petition, the mother sought, among other things, an increase in child support and an order requiring the father to contribute to the children’s future college expenses.

The father entered an appearance solely to contest the trial court’s subject-matter jurisdiction and its personal jurisdiction over him; he moved to dismiss the mother’s petition. A proceeding regarding the children was also pending in the Michigan court at the time the mother filed her petition in the Tuscaloosa Circuit Court. The father claimed that the Michigan court was the appropriate forum and that it had continuing jurisdiction over this matter.

The Tuscaloosa Circuit Court concluded that it had jurisdiction over the parties and over the subject matter in this action. Therefore, it denied the father’s motion to dismiss. The father filed a motion to reconsider that ruling. The mother moved for a determination of the time periods for the father’s upcoming summer visitation with the children. The court conducted a hearing on the father’s motion to reconsider its refusal to dismiss the action and on the mother’s motion regarding summer visitation.

On May 10, 1999, the Tuscaloosa Circuit Court entered an order denying the father’s motion to reconsider and specifying the dates for the father’s visitation with the children for the summer of 1999. The father appealed from that order. The mother filed a motion in this court to dismiss the appeal as having been taken from a nonfinal order. On June 8, 1999, this court, on motion docket, dismissed that appeal on that basis.

On September 22, 1999, the mother filed a second motion seeking a clarification of the father’s right to visitation. In that motion, she sought a determination of the dates of the father’s visitation with the children for the Christmas holidays. On November 4, 1999, the trial court entered an order modifying the visitation provisions of the Michigan divorce judgment. The father appealed.

Because we conclude that this appeal is also taken from a nonfinal judgment, we must dismiss it. See Bacadam Outdoor Advertising, Inc. v. Kennard, 721 So.2d 226 (Ala.Civ.App.1998). The mother’s original petition sought a determination on the issues of child support and college expenses for the minor children, among other issues. She later sought a clarification or modification of the visitation provision of the Michigan divorce judgment. The father appeared in the action solely to contest the jurisdiction of the trial court. The trial court’s orders have addressed only the issues of jurisdiction and visitation. The record indicates that the mother’s counsel informed the trial court that he believed the trial court did not have jurisdiction over the “money matters.” However, the mother did not dismiss her claims as to those issues, and the trial court has not ruled on those issues.

Some of the issues raised in this action remain unresolved. Because the trial court’s November 4, 1999, order did not dispose of all of the claims of the parties, that order is interlocutory and does not constitute a final judgment. Rule 54(b), Ala. R. Civ. P. The trial court did not make its order final pursuant to Rule 54(b), Ala. R. Civ. P. See M.L.B. v. State ex rel. M.M., 707 So.2d 283 (Ala.Civ.App.1997).

This appeal was taken from a nonfinal judgment. Therefore, it is due to be dismissed. Bacadam Outdoor Advertising, Inc. v. Kennard

DISMISSED.

ROBERTSON, P.J., and YATES, MONROE, and CRAWLEY, JJ., concur.


author: JOHNSTONE, Justice.

text:
    Ex parte Bryan S. PUNTURO. (In re Bryan S. Punturo v. Wanda Punturo Young).
    1000115.
    Supreme Court of Alabama.
    Feb. 8, 2002.
    Rehearing Denied Oct. 21, 2005.

      Randall W. Nichols and Anne D. Lamkin of Massey & Stotser, P.C., Birmingham (reply brief filed by Randall W. Nichols and Anne Lamkin Durward of Massey, Stotser & Nichols, P.C., Birmingham), for petitioner.
    Robert F. Prince of the Prince Patterson Law Firm, P.C., Tuscaloosa, for respondent.
   JOHNSTONE, Justice.

Bryan S. Punturo (“the father”) petitioned this Court for certiorari review of the decision of the Court of Civil Appeals dismissing his appeal. Holding that the father appealed a nonfinal judgment, the Court of Civil Appeals dismissed his appeal. Punturo v. Young, 928 So.2d 1028 (Ala.Civ.App.2000). We granted the father’s petition to determine whether the orders of the trial court are void for lack of subject-matter jurisdiction. “[T]he question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.” Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000) (citations omitted). Therefore, we treat the father’s petition as a petition for a writ of mandamus to the Court of Civil Appeals. See Southern Energy Homes Retail Corp. v. McCool, 814 So.2d 845 (Ala.2001); Ex parte Messer, 797 So.2d 1079 (Ala.2001); Morrison Restaurants, Inc. v. Homestead Village of Fairhope, Ltd., 710 So.2d 905 (Ala.1998); Henderson v. Superior Ins. Co., 628 So.2d 365 (Ala.1993); Ex parte Fowler, 564 So.2d 962 (Ala.1990); Batey & Sanders, Inc. v. Dodd, 755 So.2d 581, 582 (Ala.Civ.App.1999); In re D.M., 738 So.2d 898 (Ala.Civ.App.1999); Ex parte Gamble, 709 So.2d 67 (Ala.Civ.App.1998); Fowler v. Merkle, 564 So.2d 960 (Ala.Civ.App.1989); Ex parte Cleburne County Bd. of Educ., 545 So.2d 802 (Ala.Civ.App.1989). We do notice a lack of subject-matter jurisdiction, and therefore we do issue the writ of mandamus.

In 1992, when the father and his then wife Wanda Punturo Young (“the mother”) separated, they were both residents of Michigan. After they separated, the mother and the parties’ children moved from Michigan to Alabama. The father and the mother were divorced on June 2, 1993 by the Circuit Court of the County of Grand Traverse, Michigan. The court awarded the parties joint custody of the two children, but awarded the mother primary physical custody of the children. The court awarded the father reasonable visitation. The Michigan court expressly “retain[ed] jurisdiction over the parties of this action until the minor children reach the age of 18 years, or graduate from high school, whichever shall later occur.”

In January 1999, in the Circuit Court of the County of Grand Traverse, Michigan, the father requested “a review of the parenting time, which review was undertaken by th[e] Court’s Friend of the Court Office.” On January 19, 1999, the mother petitioned the Tuscaloosa County, Alabama, Circuit Court to modify the Michigan divorce judgment by, among other things, increasing the father’s child-support obligation and ordering the father to contribute to the children’s future college expenses.

On February 2, 1999, the “Friend of the Court” in the Circuit Court of the County of Grand Traverse “conducted a conference concerning the review o[f] parenting time.” Neither the father nor the mother appeared at the conference, but the mother responded in writing.

In an order issued on February 16, 1999, the Tuscaloosa County Circuit Court held that Alabama was the home state of the children and that, therefore, the Tuscaloosa County Circuit Court had the power to modify the Michigan divorce judgment. On February 22, 1999, the Michigan judge sent the Alabama judge a letter stating that the Michigan judge had refused to dismiss the Michigan action “ ‘based on our long-standing jurisdiction and our parenting time review being in progress when the motion was filed in your court.’ ” On February 25,1999, the father, a resident of Michigan, specially appeared by a motion to dismiss the mother’s petition to modify. The father challenged the subject-matter jurisdiction of the Tuscaloosa County Circuit Court and the exercise of personal jurisdiction over him by the Tuscaloosa County Circuit Court. The father informed the Alabama judge that a proceeding regarding the children was pending in the Michigan court and that the Michigan court had continuing jurisdiction over the parties and the issues before the Tuscaloosa County Circuit Court. The mother asked the Alabama judge to ask the Michigan judge to stay the pending Michigan action and to allow the Tuscaloosa County Circuit Court to exercise jurisdiction over the parties and the matters in the mother’s petition. On February 25,1999, the Michigan judge responded in an order stating that Michigan had continuing jurisdiction over the parties and the children, and that Alabama was not a more convenient forum.

Also on February 25, 1999, in the Tuscaloosa County Circuit Court, the father moved to dismiss the Alabama action on the ground that the Parental Kidnapping Prevention Act (“PKPA”), 28 U.S.C. § 1738A, foreclosed subject-matter jurisdiction over the mother’s action in the Alabama courts. On March 25, 1999, holding that it had jurisdiction under the Uniform Child Custody Jurisdiction Act (“UC-CJA”), § 30-3-20 et seq., Ala.Code 1975, the Tuscaloosa County Circuit Court denied the father’s motion to dismiss and stated, “This Court will again discuss the jurisdictional issue with the Michigan Court.” On April 6, 1999, the father filed a motion for special and limited appearance asking the Tuscaloosa County Circuit Court “for Re-Hearing or Re-Consideration” of the March 25, 1999 order. The mother moved the Tuscaloosa County Circuit Court for a determination of the time periods for the father’s upcoming summer visitation.

After a hearing, the Tuscaloosa County Circuit Court entered an order denying the father’s motion to “reconsider” and specifying the dates for the father’s summer visitation with the children. The father appealed that order. Upon the mother’s motion, the Court of Civil Appeals dismissed the father’s appeal on the ground that he had appealed a nonfinal order.

On September 22, 1999, the mother moved the Alabama judge to clarify the father’s visitation with the children during the Christmas holidays. The Tuscaloosa County Circuit Court entered an order modifying the visitation provision of the Michigan divorce judgment. The father appealed. The Court of Civil Appeals held that, because the Alabama judge did not address the issues of child support and post-minority educational support, the March 25, 1999 order was not final and not appealable. The Court of Civil Appeals therefore dismissed the father’s appeal. Punturo, swpra.

“ ‘A writ of mandamus is an extraordinary remedy that requires a showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ ” Ex parte Bruner, 749 So.2d 437, 439 (Ala.1999) (quoting Ex parte McNaughton, 728 So.2d 592, 594 (Ala.1998)).

The father contends that the decision of the Court of Civil Appeals conflicts with Ford Motor Co. v. Tunnell, 641 So.2d 1238 (Ala.1994); McClure v. Moore, 565 So.2d 8 (Ala.1990); Taylor Coal Co. v. Pearson, 380 So.2d 779 (Ala.1980); Reynolds Brothers Lumber Co. v. W.S. Neivell Construction Co., 284 Ala. 352, 224 So.2d 899 (1969); Foster v. Foster, 709 So.2d 1301 (Ala.Civ.App.1998); and Garrett v. Garrett, 521 So.2d 1337 (Ala.Civ.App.1988). Each of these cases addresses the finality of an order of a trial court not addressing all of the issues before it. Our resolution of the issue of subject-matter jurisdiction, however, pretermits this issue of the finality of the March 29, 1999 order.

The father contends also that, because an action was pending in Michigan when the mother filed her action in Alabama, the Alabama judge cannot exercise subject-matter jurisdiction over custody, child support, and visitation. He contends further that the Tuscaloosa County Circuit Court does not have personal jurisdiction over him because, he says, he does not have sufficient contacts with the State of Alabama.

Subject-matter jurisdiction cannot be waived, and the lack of subject-matter jurisdiction may be raised at any time by a party or by a court ex mero motu. Greco v. Thyssen Mining Constr., Inc., 500 So.2d 1143 (Ala.Civ.App.1986). See also Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 945 n. 2 (Ala.1994). A judgment issued by a trial court without jurisdiction is a nullity. Ex parte Hornsby, 663 So.2d 966 (Ala.1995), and Moore v. Ashe, 269 Ala. 359, 113 So.2d 678 (1959).

Subject-matter jurisdiction of an interstate custody case is governed by the PKPA, 28 U.S.C. § 1738A, and the UC-CJA, §§ 30-3-20 through -44, Ala.Code 1975. See D.B. v. P.B., 692 So.2d 856 (Ala.Civ.App.1997), and P.A.T. v. D.B., 638 So.2d 905 (Ala.Civ.App.1994). The federal PKPA controls in cases of conflicts between the PKPA and UCCJA. P.A.T. Section 1738A(d) of the PKPA provides:

“The jurisdiction of a court of a State which has made a child custody or visitation determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.” (Emphasis added.)

Section 1738A(c) provides:

“(c) A child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if—
“(1) such court has jurisdiction under the law of such State.... ”

Further, § 1738A(g) provides:

“A court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination.” (Emphasis added.)

“Alabama courts are required under [the] PKPA to enforce ... a sister state’s custody order rendered in accordance with the PKPA; an Alabama court has no authority to modify such an order unless the sister state loses jurisdiction or declines to exercise it.” Shook v. Shook, 651 So.2d 6, 8 (Ala.Civ.App.1994).

The purposes of the UCCJA included “[avoiding] jurisdictional competition and conflict with courts of other states in matters of child custody, which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being” and “[deterring] abductions and other unilateral removals of children undertaken to obtain custody awards.” §§ 30-3-21 (a)(1) and (5), Ala. Code 1975.

The UCCJA, § 30-3-23(a)(l) through (4), Ala.Code 1975, provided Alabama courts four bases for exercising jurisdiction. McBride v. McBride, 688 So.2d 856, 859 (Ala.Civ.App.1997), summarizes these four bases as follows:

“(1) ‘home state’ jurisdiction; (2) ‘best interest’ jurisdiction; (3) ‘emergency’ jurisdiction; and (4) a catchall provision allowing a court to exercise jurisdiction if no other state would have ‘home state,’ ‘best interest,’ or ‘emergency’ jurisdiction, or if another state with jurisdiction had declined to exercise its jurisdiction.”

However, except under § 30-3-23(a)(3) and (a)(4)(the emergency and the catchall provisions), “physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.” § 30-3-23(b) (emphasis added). Moreover, “[a] court of this state shall not exercise its jurisdiction under this article if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this article ....”§ 30-3-26(a) (emphasis added). See also Webster v. Webster, 723 So.2d 59 (Ala.Civ.App.1997), and Shook, supra.

Because the father lives in Michigan and the Michigan court was exercising continuing jurisdiction over the parties and was conducting “a review of parenting time” when the mother filed her modification petition in the Tuscaloosa County Circuit Court, the PKPA and the UCCJA foreclosed the Tuscaloosa County Circuit Court from exercising jurisdiction over the parties and the issues. 28 U.S.C. § 1738A(g) and § 30-3-26(a). See also Ray v. Ray, 494 So.2d 634 (Ala.Civ.App.1986). Accordingly, because the Michigan court has continuing jurisdiction over the issues of custody, child support, and visitation and has exercised its jurisdiction over those issues, the Tuscaloosa County Circuit Court cannot exercise subject-matter jurisdiction over the issues of custody, child support, and visitation. Therefore, the orders of the Tuscaloosa County Circuit Court are void for lack of subject-matter jurisdiction. See Ex parte American Res. Ins. Co., 663 So.2d 932 (Ala.1995). Because the orders of the Tuscaloosa County Circuit Court are void for lack of subject-matter jurisdiction, we do not reach the issue whether the Tuscaloosa County Circuit Court has in personam jurisdiction over the father.

Accordingly, the Court of Civil Appeals should have treated the father’s appeal as a petition for a writ of mandamus. Batey & Sanders, Inc., In re D.M., Ex parte Gamble, Fowler, and Ex parte Cleburne County Bd. of Educ., supra. Therefore, we treat the father’s petition for a writ of certiorari as a petition for a writ of mandamus. Southern Energy Homes Retail Corp., Ex parte Messer, Morrison Restaurants, Inc., Henderson, and Ex parte Fowler, supra.

The Court of Civil Appeals should have issued a writ directing the Tuscaloosa County Circuit Court to vacate its orders and to dismiss the mother’s action for want of subject-matter jurisdiction. Therefore, we issue such a writ. Rule 21(e)(1), Ala. R.App. P.

WRIT ISSUED.

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

HARWOOD, J., recuses himself.

      . Act No. 99-438, p. 866, § 1, Ala. Acts 1999, effective January 1, 2000, repealed the UC-CJA. Act No. 99-438, p. 866, § 1 is codified in § 30-3B-404, Ala.Code 1975, which provides, in pertinent part, “[TJhe following sections and all amendments thereto ... are repealed: the Uniform Child Custody Jurisdiction Act located at Sections 30-3-20 through 30-3-44. No actions may be filed under the repealed provisions after December 31, 1999.” Because the mother filed her action before December 31, 1999, the UCCJA applies to the action.

      . See note 1.


author: PITTMAN, Judge.

text:
    Pearl DESOUZA and Kimberly Desouza v. Don LAUDERDALE et al.
    2031051.
    Court of Civil Appeals of Alabama.
    June 30, 2005.
    Rehearing Denied Sept. 2, 2005.

      Joey K. James of Bunch & James, Florence, for appellants.
    Winston V. Legge, Jr., and T. Mark Maclin of Wilmer & Lee, PA, Athens, for appellees.
   PITTMAN, Judge.

Pearl Desouza and Kimberly Desouza appeal from a summary judgment in favor of Don Lauderdale and Sheila Lauderdale, “Lauderdale Land Company,” and Joey Burgreen (“Burgreen”). The record does not reveal whether “Lauderdale Land Company” is an entity subject to suit. In their motion to dismiss, the Lauderdales asserted that “Lauderdale Land Company” was merely a trade name under which the Lauderdales do business. For purposes of this opinion, we will treat the claims against “Lauderdale Land Company” as if they are subsumed within the claims against the Lauderdales. We affirm in part, reverse in part, and remand.

The procedural history and pertinent facts in this case are as follows: On March 31, 1995, the Desouzas purchased a house in Athens from the Lauderdales. The house’s exterior had been clad with an Exterior Insulation Finish System “EIFS” composed of a material more commonly known as “synthetic stucco.” Shortly before purchasing the house, the Desouzas retained a house-inspection company, Home Buyer’s Inspection Service, to conduct an inspection of the house. The report of that house inspection, which was conducted on March 22, 1995, failed to disclose any defect in the EIFS exterior cladding. In connection with the house’s purchase, the Desouzas also applied for and obtained an express warranty from the Residential Warranty Corporation. The warranty afforded the Desouzas protection for a 10-year period subject to certain exclusions and limitations.

In August 2001, the Desouzas were advised by a neighbor that they needed to consult with a particular attorney about their house. The Desouzas later met with the attorney, who informed the Desouzas that their house may have begun “deteriorating.” On September 28, 2001, more than six years and six months after the Desouzas had purchased the house, the attorney filed a complaint on behalf of the Desouzas in Limestone Circuit Court, naming as defendants the Lauderdales, “Lauderdale Land Company,” Burgreen, Cell Pest Control, Home Buyer’s Inspection Service, and Residential Warranty Corporation, and asserting claims of negligence, fraud, breach of contract, and breach of warranty. The Desouzas alleged that their causes of action arose from the design and construction of the house. In March 2002, the Desouzas amended their fraud claim against the Lauderdales and “Lauderdale Land Company, asserting that the Desouzas had discovered in November 2001 that the EIFS exterior had begun failing and was allowing moisture to intrude between the interior and exterior walls of the house. Eleven months later, the Desouzas retained an engineering firm, Jade Engineering and Inspection, Inc., to conduct an on-site inspection of the EIFS at the Desouzas’ house. The firm’s June 2003 report determined that the EIFS had been improperly installed and that high moisture conditions had been detected in the house’s exterior walls that appeared to have emanated from the structure’s roof line, windows, and doors. In May 2003, the Desouzas retained a second engineering firm, Mid-South Testing, Inc., to conduct an environmental assessment of the house. That firm’s subsequent report noted visible mold growth in two areas of the house’s northwest bedroom that appeared to have been caused by a leak in the roof. The report also noted elevated moisture levels in the closet area of the northwest bedroom, in the house’s attic area, and around the door frame and gypsum board located near the house’s front door.

In August 2003, the Lauderdales and Burgreen filed a motion for a summary judgment asserting that all the Desouzas’ claims had been untimely filed and were, therefore, barred by the applicable statute of limitations. Eventually, the trial court either dismissed or entered a summary judgment as to all of the Desouzas’ claims except those against the, Lauderdales, “Lauderdale Land Company,” and Bur-green. In July 2004, the trial court entered a summary judgment in favor of those defendants on the remaining claims in the case. The Desouzas filed a timely notice of appeal as to the summary judgment against the Lauderdales, Lauderdale Land Company, and Burgreen; the Alabama Supreme Court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Our review of a summary judgment is de novo.

“An appellate court reviews a summary judgment by the same standard the trial court uses in determining whether to grant a summary-judgment motion. Pryor v. Brown & Root USA, Inc., 674 So.2d 45, 47 (Ala.1995); Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). A summary judgment is appropriate if there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The mov-ant has the burden of making a prima facie showing that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). If the moving party makes that prima facie showing, then the burden shifts to the nonmoving party, who then has the burden of presenting substantial evidence creating a genuine issue of material fact. Id. In determining whether the evidence creates a genuine issue of material fact, this court must review the record in the light most favorable to the nonmovant and. must resolve all reasonable doubts against the movant. Wayne J. Griffin Elec., Inc. v. Dunn Constr. Co., 622 So.2d 314 (Ala.1993). 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).”

Millican v. McKinney, 886 So.2d 841, 843 (Ala.Civ.App.2003). Additionally, “[o]ur review is further subject to the caveat that [we] must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant.” Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992).

With respect to the Desouzas’ first two issues asserted on appeal, they contend, without citing to authority, (1) that Burgreen was not entitled to a summary judgment because he failed to affirmatively assert a statute-of-limitations defense in a responsive pleading and (2) that “Lauderdale Land Company” failed to file a formal summary-judgment motion. We note that the Desouzas’ failure to cite legal authority in support of their argument violates the requirements of Rule 28(a)(10), Ala. R.App. P. (requiring that arguments in a brief contain “citations to the cases, statutes, other authorities, and parts of the record relied on”). “This court will not consider on appeal issues that are not properly presented and argued in brief.” James v. Old Republic Sur., 674 So.2d 615, 618 (Ala.Civ.App.1996); see also Spradlin v. Birmingham Airport Auth., 613 So.2d 347, 347 (Ala.1993). Therefore, because the Desouzas have failed to comply with the provisions of Rule 28, Ala. R.App. P., as to those two arguments, they are deemed to be waived on appeal and we pretermit further discussion of them.

The Desouzas next contend that the trial court erred in entering the summary judgment in favor of the Lauder-dales and Burgreen as to the Desouzas’ negligence claim because, they say, their cause of action accrued upon the discovery of the alleged defect in November 2001. The Desouzas cite Ala.Code 1975, § 6-5-220(e), which allows an action to be commenced, in certain instances, within two years from the date of the plaintiffs discovery of any latent damage or defects. That discovery rule is limited to actions against an “architect, engineer, or builder.” Ala.Code 1975, § 6-5-221. Section 6-5-220(a) defines a “builder” as follows:

“Any individual, partnership, firm, or corporation that constructed, or performed or managed the construction of, an improvement, or any portion thereof, on or to real estate, and at the time of the construction was licensed as a general contractor in the State of Alabama.”

The Lauderdales and Burgreen counter that the Desouzas failed to show that the Lauderdales or Burgreen were “builders” so as to subject the claims against them to the “discovery” rule. They argue that the Desouzas’ negligence claim is instead subject to the provisions of Ala.Code 1975, § 6-2-(38)(0, providing that “[a]ll actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.” The Lauderdales and Burgreen argue that the defects in the house were not latent defects; they posit that the exterior design and installation of the EIFS was the actual defect in the house and should have been discovered by the Desouzas at or before the time of the house’s purchase.

It is well-settled law in Alabama that the statutory limitations period as to tort claims begins to run when the cause of action accrues. Jackson v. Secor Bank, 646 So.2d 1377, 1379 (Ala.1994). Even if we were to accept the Lauderdales’ and Burgreen’s argument that the Desouzas’ negligence claim is subject to the provisions of Ala.Code 1975, § 6-2-38(£), a question of material fact would still remain as to the date that the Desouzas’ negligence action actually accrued. The Supreme Court in Payne v. Alabama Cemetery Association, Inc., 413 So.2d 1067 (Ala.1982), analyzed Alabama caselaw generally relating to the accrual of a cause of action arising from a tort as follows:

“ ‘The statute ... will not begin to run until some injury occurs which gives rise to a maintainable cause of action. Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979); Corona Coal Co. v. Hendon, 213 Ala. 323, 104 So. 799 (1925); West Pratt Coal Co. v. Dorman, 161 Ala. 389, 49 So. 849 (1909). As pointed out in Garrett v. Raytheon Co., the basic principles set forth by Corona Coal and West Pratt Coal on one hand, and Garrett v. Raytheon Co. on the other, are the same. In actions such as the case at bar, the act complained of does not itself inflict a legal injury at the time it is done, but plaintiffs injury only follows as a result and a subsequent development of the defendant’s act. “In such cases, the cause of action ‘accrues,’ and the statute of limitations begins to run, ‘when and only when, the damages are sustained.’” Garrett v. Raytheon Co., 368 So.2d at 519. See also, Kelly v. Shropshire, 199 Ala. 602, 75 So. 291 (1917).’ ”

413 So.2d at 1072 (emphasis on “damages” added). Accord, Smith v. Medtronic, Inc., 607 So.2d 156, 159 (Ala.1992) (a party’s cause of action accrues and the statute of limitations begins to run “on the . date the first legal injury occurs, but not necessarily from the date of the act causing the injury”).

Our Supreme Court applied this general principle in a similar case involving the alleged negligent installation of EIFS in Chandiwala v. Pate Construction Co., 889 So.2d 540 (Ala.2004). In that case, the Supreme Court held that a homeowner’s negligence, suppression, and third-party beneficiary claims were barred by the operation of § 6-2-38(l), Ala.Code 1975. In Chandiwala, the homeowner brought claims against a construction company because of moisture-related problems associated with the use of EIFS exterior cladding to his house. Six years after the house’s construction, Chandiwala learned from a termite-inspection company that there was improper EIFS-to-earth contact that needed correction. Chandiwala failed to correct the problem, but he filed suit more than two years later. Although Chandiwala argued on appeal that the statute-of-limitations period did not begin to run until he had discovered the actual moisture damage in the house, the Supreme Court held that the limitations period began to run on the date that Chandi-wala learned about the EIFS problems, not the later date when he discovered the moisture-related problems in the house’s exterior walls. Id. at 544.

In this case, the Desouzas testified via deposition and submitted affidavits indicating that they had no knowledge of any defects in the house until November 2001, when they noticed that the exterior of their house had begun to mold and mildew. The Lauderdales’ and Burgreen’s motion for a summary judgment presented no evi-dentiary materials that tended to negate the Desouzas’ evidence that they first became aware of the house’s moisture problems on that date. Despite the Lauder-dales’ and Burgreen’s contention that the Desouzas should have discovered the negligent installation of the EIFS before purchasing the house, the Lauderdales and Burgreen admit on appeal that the initial house inspection that was conducted before the Desouzas’ purchase revealed no problems with the EIFS cladding. Although the Desouzas may have suffered a legal injury at the time that they purchased the house, substantial evidence indicates that they did not suffer actual damage until some time after the purchase. Because a factual question exists as to when the Desouzas discovered (or, in the exercise of reasonable diligence, should have discovered) the damage to then-house, the trier of fact must supply the answer.

As the summary-judgment movants, the Lauderdales and Burgreen had the burden of demonstrating that there was no genuine issue of material fact. As to the Desouzas’ negligence claim, the Lauder-dales and Burgreen failed to meet that burden. Thus, the Lauderdales and Bur-green were not entitled to a summary judgment as to the negligence claim, and we must conclude that the summary judgment as to the Desouzas’ negligence claim was improper. Therefore, we reverse the summary judgment as to that claim and remand the cause to the trial court for further proceedings.

With respect to the Desouzas’ fraud claims, the Desouzas concede on appeal that they are unable to prove that the Lauderdales suppressed material facts regarding the construction of the house. However, the Desouzas assert that the Lauderdales made fraudulent misrepresentations about the house. Specifically, the Desouzas contend that two purported statements, ie., “[t]his home is built according to regulation” and “[t]his materiál has been inspected,” constitute material misrepresentations of fact that were made before the Desouzas entered into a contract for the purchase of the house. In their summary-judgment motion and on appeal, the Lauderdales contended that a fraud claim based upon those alleged statements is , necessarily barred by the expiration of the statute of limitations.

In order to survive a motion for a summary judgment on a claim of fraudulent misrepresentation supported by a movant’s proper prima facie showing that no’ genuine issue of fact exists, it is necessary to establish by substantial evidence the existence of a genuine issue of material fact as to four elements: “ ‘(1) a false representation (2) concerning a material existing fact (3) [reasonably] relied upon by the plaintiff (4) who was damaged as a proximate' result.’” Fisher v. Comer Plantation, Inc., 772 So.2d 455, 463 (Ala.2000) (quoting Baker v. Bennett, 603 So.2d 928, 935 (Ala.1992)). See also Foremost Ins. Co. v. Parham, 693 So.2d 409, 422 (Ala.1997); § 6-5-101, Ala.Code 1975.

Although the statements that have been attributed to the Lauderdales may be facially imprecise, we must nonetheless consider, as a threshold matter, whether the statements were false and whether the substance of those statements are material to the Desouzas’ entry into the contract for the purchase of the house. With respect to the latter statement, the Desouzas admit that they retained a home-inspection service to conduct an inspection of the house before they decided to purchase the house and that that inspection subsequently failed to reveal any problems with the EIFS. Thus, we cannot conclude that the alleged statem&U“this [EIFS] material has been inspected” would have been false or material to the Desouzas’ conduct.

Similarly, we cannot agree with the Desouzas that substantial evidence supports the - proposition that the alleged statement made by- the Lauderdales that the house had been built “according to regulations” was a material misrepresentation. Although Pearl Desouza testified that the Lauderdales had said to her that the house was “built by regulations,” and although the Desouzas adduced affidavits of two engineering experts tending to indicate that the house’s EIFS system had not been installed in a proper manner according to industry standards, the Desouzas failed to demonstrate that the installation of the EIFS violated any applicable governmental regulation or rule so as to render the alleged statement false. Indeed, for all that appears in the record, the Desouzas’ house actually was constructed according to pertinent regulations, and this court cannot properly expand the zone of fraud liability so as to encompass a statement that is not demonstrably false. See Prestwood v. City of Andalusia, 709 So.2d 1173, 1175, 1177 (Ala.1997) (noting that “a false statement is an essential element of fraud” and holding that “[a] factfinder could not reasonably find that [a defendant] made a misrepresentation[ ] when not one witness could say under oath that the statement was untrue”).

Because the Desouzas have conceded that the Lauderdales did not suppress any material facts, and because the Desouzas have failed to demonstrate that the two statements made by the Lauderdales upon which they allegedly relied were, in fact, false representations of material fact, we must conclude that the trial court properly entered the summary judgment in favor of the Lauderdales as to the Desouzas’ fraud claim. In so concluding, we need not address the validity of the Lauderdales’ statute-of-limitations defense with respect to that claim.

The Desouzas next argue that the trial court erred in entering a summary judgment in favor of the Lauderdales as to the Desouzas’ breach-of-warranty claims. Specifically, the Desouzas argue that the express warranty failed in its essential purpose and that the implied-warranty claim was not barred by the statute of limitations.

“An action alleging a breach of warranty is a subset of a breach-of-contract action.” Turner v. Westhampton Court, L.L.C., 903 So.2d 82 (Ala.2004). The existence of an implied warranty arising by law from the sale of a new house was first declared by this court in the case of Cochran v. Keeton, 47 Ala.App. 194, 199, 252 So.2d 307, 312 (Ala.Civ.App.1970), which was affirmed by our Supreme Court in Ex parte Keeton, 287 Ala. 439, 440-41, 252 So.2d 313, 314-15 (1971). Although an implied warranty of habitability is inherent in each new house constructed within the State of Alabama, our Supreme Court held in Turner, supra, that the principle of freedom of contract permits a party to the sale of real property to effectively disclaim the implied warranty of habitability. The Supreme Court primarily relied on Alabama’s version of the Uniform Commercial Code (“the UCC”) in reaching its determination, stating, in pertinent part, the following:

“In Ex parte Miller, 693 So.2d 1372, 1376 (Ala.1997), a case decided under Alabama’s version of the Uniform Commercial Code, we held that a company can limit its warranty coverage. In Southern Energy Homes v. Washington, 774 So.2d 505, 511 (Ala.2000), we held that a warranty can require a certain method by which the warranty holder notifies the party giving the warranty of a defect covered by the warranty. See also Copenhagen Reinsurance Co. v. Champion Home Builders Co., 872 So.2d 848 (Ala.Civ.App.2003). If a purchaser were to attempt to hold the seller liable when the purchaser had not notified seller pursuant to the method set out in the warranty, the seller would not be liable. While these cases are based upon Alabama’s Commercial Code, we see no reason to limit the rule to cases concerning ‘goods.’ Rather, we are led by the principle of freedom of contract. Therefore, we hold that companies selling houses are similarly capable of limiting warranty coverage.”

903 So.2d at 91.

It is undisputed that the Desouzas entered into an express-warranty agreement with'the Lauderdales and with a former eodefendant, Residential Warranty Company (“RWC”). The warranty agreement provided structured coverage for the first 10 years following the purchase of the house. Pursuant to the terms of the warranty, coverage was warranted by the Lauderdales for the first two years after purchase. Warranty coverage in years 3 through 10 after the purchase of the house was to be provided by Western Pacific Mutual Insurance Company (“WPIC”),’ á risk-retention group. According to the provisions of the warranty, the Desouzas were required to notify either the Lauder-dales or RWC of any purported defect in the house during the first two years after purchase. For years three through ten, the Desouzas were required to notify only RWC for a determination of coverage. After having received notification, RWC was required under the provisions of the contract to issue a response and to conduct an investigation and a subsequent mediation proceeding. If the purported defect had not been resolved by the parties after those actions, the claim was to proceed to binding arbitration.

Although Article 2 of Alabama’s version of the UCC does-not apply to real-estate transactions, see Harden v. Ritter, 710 So.2d 1254, 1256 (Ala.Civ.App.1997), that 'article, as Turner, supra, makes clear, is nonetheless persuasive in our analysis of the Desouzas’ warranty claims. Section 7-2-719(l)(a),' Ala.Code 1975, part of Alabama’s version of the UCC, provides that the parties to an agreement “may provide for remedies in addition to or in substitution for those provided for in this article and may limit or alter the measure of damages recoverable under this article as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts.... ” “Where the parties have set out in a written contract the warranties agreed upon and have provided a remedy in case of a breach of warranty, the remedy thus provided is exclusive.” See McDonald v. Schwartz, 706 So.2d 1230, 1232 (Ala.Civ.App.1997); and Ala.Code 1975, § 7-2-719(2).

In this case, the limited warranty entered into by the parties specifically provided that “the builder is the warrantor during the first two years of the agreement.” The warranty further provided that after the second year of the warranty, “WPIC will protect your home for a period of eight years against loss resulting from [m]ajor [structural [d]efects.” In light of the fact that the Desouzas have consistently asserted that they failed to discover the defects until November 2001, approximately seven years after the effective date of the warranty, we must conclude that the Desouzas’ exclusive contractual remedy was limited to one involving WPIC, and not the Lauderdales.

To prevail on their claim that the Lauderdales breached an implied warranty of habitability, the Desouzas must adduce by 'substantial evidence that that implied warranty had not been disclaimed. We again turn to the UCC, as codified in Title 7, Art. 2, Ala.Code 1975, for guidance.

Section 7-2-316(2), Ala.Code 1975, allows a seller to exclude implied warranties of merchantability and fitness by including in the contract a “conspicuous” written statement disclaiming those warranties. A term is conspicuous when it is “so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it.” Ala.Code 1975, § 7-1-201(b)(10). “Whether a term or clause is ‘conspicuous’ or not is a decision for the court.” Id. “Conspicuous terms include the following:

“(A) A heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and
“(B) Language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.”

Ala.Code 1975, § 7-l-201(b)(10)(A), and (b)(10)(B).

The cover page of the limited-warranty booklet that the Desouzas received states in all capital letters the following:

“THIS LIMITED WARRANTY DOES NOT COVER CONSEQUENTIAL OR INCIDENTAL DAMAGES. LIABILITY UNDER THIS LIMITED WARRANTY IS LIMITED TO THE FINAL SALES PRICE LISTED ON THE APPLICATION FOR WARRANTY FORM.
“THE BUILDER MAKES NO HOUSING MERCHANT IMPLIED WARRANTY OR ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE ATTACHED SALES CONTRACT OR THE WARRANTED HOME, AND ALL SUCH WARRANTIES ARE EXCLUDED, EXCEPT AS EXPRESSLY PROVIDED IN THIS LIMITED WARRANTY. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FACE OF THIS LIMITED WARRANTY.”

The “Introduction” section, which is the second paragraph of the booklet, is set apart in all capital letters and states the following:

“THIS AGREEMENT INCLUDES PROCEDURES FOR INFORMAL SETTLEMENT OF DISPUTES, INCLUDING BINDING ARBITRATION, IN ACCORDANCE WITH THE PROCEDURES OF THE FEDERAL ARBITRATION ACT; SEE SECTIONS A.5.F-G. ADDITIONAL INFORMATION MAY BE RECEIVED BY CALLING RWC AT 717-561-4480. YOU SHOULD READ THIS AGREEMENT IN ITS ENTIRETY IN ORDER TO UNDERSTAND THE PROTECTION IT AFFORDS, THE EXCLUSION APPLICABLE TO IT, THE WARRANTY STANDARDS WHICH WILL GOVERN ITS INTERPRETATION AND OPERATION, AND THE PURCHASER’S RESPONSIBILITIES.”

The warranty-disclaimer provision in the express-warranty booklet disclosed that any implied warranties potentially arising under law were excluded. The provision was printed in all capital letters and in a print that was larger than the print used in the remainder of the booklet. In addition, we note that the warranty directed the Desouzas to read the agreement in its entirety in order to understand the protection that the warranty would afford and the exclusions that would apply under 'the warranty.

The record on appeal reflects that the Desouzas were not uneducated consumers. Kim Desouza and Pearl Desouza had obtained baccalaureate degrees in business; Pearl Desouza had additionally earned a master’s degree in special education and was employed as a special-education teacher at the time that she and her sister contracted to purchase the house. The Desouzas have adduced no evidence that they did not agree to disclaim all implied warranties in entering into the limited express warranty in connection with the purchase of their house. Therefore, we are compelled to conclude that the trial court did not err in entering the summary judgment in the Lauderdales’ favor as to the Desouzas’ breach-of-warranty and contract claims. Thus, we pretermit any discussion as to whether those claims were untimely filed.

In summary, we conclude that the trial court erred in entering a summary judgment in favor of the Lauderdales and Bur-green on the claim of negligence. However, the trial court did not err in entering a summary judgment on the other remaining claims asserted against the Lauderdales and Burgreen. We remand the case to the trial court for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

CRAWLEY, P,J., and THOMPSON, MURDOCK, and BRYAN, JJ., concur in the result, without writing.

      ."EIFS is a multilayered exterior wall system consisting of Styrofoam insulation board glued to the exterior wooden substrate previously affixed during construction of the house, a base coat into which is embedded mesh, and a finish coat designed to look like stucco." Keck v. Dryvit Sys., Inc., 830 So.2d 1, 3 (Ala.2002).

      . The report prepared by Home Buyer's Inspection Service does state that some "patching and touch up” was needed bn the house's exterior and that "membrane” was visible at the right side of the garage.

      . The amended complaint, which supplanted the fraud count in the Desouzas’ original complaint, did not allege a claim against Bur-green. In fact, the record on appeal does not reveal the nature of Burgreen's relationship to the Lauderdales or the Desouzas.

      . It does not appear that the parties in Chan-diwala argued that Ala.Code 1975, § 6-5-220 et seq., applied to the homeowner’s claims.

      . The Desouzas' amended complaint did not allege fraud against Burgreen. See note 3, supra.

      . Although the Desouzas' complaint also alleged claims of breach of warranty and breach of contract against Burgreen, the record on appeal reflects that Pearl Desouza testified via deposition that the Desouzas had never entered into a contract with Burgreen.


author: BOLIN, Justice.

text:
    Ex parte Don LAUDERDALE et al. (In re Pearl Desouza and Kimberly Desouza v. Don Lauderdale et al.).
    1041913.
    Supreme Court of Alabama.
    Nov. 4, 2005.
    Winston V. Legge, Jr., and T. Mark Maclin of Wilmer & Lee, P.A., Athens, for petitioners.
   BOLIN, Justice.

The petition for the writ of certiorari is denied.

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

WRIT DENIED.

NABERS, C.J., and SEE, LYONS, HARWOOD, WOODALL, STUART, SMITH, and PARKER, JJ., concur.