author: STUART, Justice.

text:
    Ronnie Joe WEEKS and Sally Patterson v. Warren C. HERLONG, Jr.
    1041506.
    Supreme Court of Alabama.
    June 9, 2006.
    Rehearing Denied Aug. 18, 2006.

      James G. Curenton, Jr., Fairhope, for appellants.
    J. Casey Pipes and Christopher T. Conte of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, for appellee.
   STUART, Justice.

Ronnie Joe Weeks and Sally Patterson (referred to collectively as “the Weekses”) appeal from the trial court’s order holding that Warren. C. Herlong, Jr., had a prescriptive easement across the Weekses’ property. We affirm.

Facts

The Weekses are siblings. In 1981 or 1982, they inherited property on the Magnolia River from their mother, Blanche Weeks. Jesse Johnson had deeded the property to Blanche Weeks at some point before 1981 or 1982.

Warren C. Herlong, Jr., owns property on the Magnolia River adjacent to and on the east side of the Weekses’ property. H.E. Cheatham and Ettie B. Cheatham (“the Cheathams”), Herlong’s godparents, had deeded the property to Herlong in 1995. The Cheathams had received title to this property in the 1950s. This case involves Herlong’s access to the property.

The following time line is useful in understanding this case. In the early 1900s, a sawmill was located on what is now Herlong’s property. Louis Collins owned the property at that time. Louis Collins is related to the Weekses and to Huey Collins, who also owns property in the same area. An old path, known as Old Mill Road, running west to east led to the sawmill on Herlong’s property. Old Mill Road is a dirt road. Old Mill Road travels over property belonging to Joe Hamric, another property owner in the area. Hamric’s property is adjacent to and on the west side of the Weekses’ property. As the property stood at the time of trial, Old Mill Road ran west to east from Collins Lane, a paved public road, and over Huey Collins’s property, over Joe Ham-ric’s property, over the Weekses’ property, and then onto Herlong’s property.

In 1965, Hamric created Hamric Lane to provide access to his property from Collins Lane. Hamric Lane, also a dirt road, runs north and south and ends where it forms a “T” intersection with Old Mill Road.

In the late 1970s, a dispute arose between Jesse Johnson, then the owner of the Weekses’ property, and Ettie B. Cheatham, then the owner of Herlong’s property. That dispute was settled by Johnson’s giving an easement to Cheat-ham; that easement was in writing (“the Johnson-Cheatham easement”). That document provided Cheatham with a perpetual easement and a right-of-way upon and across the following area of Johnson’s property (now the Weekses’ property):

“A strip of land approximately fifteen (15) feet in width being the existing drive or way running in an Easterly direction from the West line of the property of ... Johnson to the East line thereof. Said existing drive being known as the Old Mill Road and the property of the undersigned ... being described as follows:
“[a description of certain of the Johnson property followed].”

The Johnson-Cheatham easement also provided:

“The grantors hereby further agree, upon being furnished with a more definite description by the grantee and at her expense, to execute another easement appurtenant which will particularly set the land covered thereby.”

Cheatham never provided a more definite description to Johnson, so the exact location of the Johnson-Cheatham easement was not established in the chain of title to either the Johnson property or the Cheat-ham property.

At some point after the Johnson-Cheat-ham easement was executed, Johnson conveyed his property to Blanche Weeks. In 1981 or 1982, Blanche Weeks died, and her children, including Ronnie Weeks and Sally Patterson, inherited the property.

In 1993, Joe Hamric sold some of his land to Tynes Stringfellow. Hamric reserved an easement over Hamric Lane to access his property. As stated earlier, Hamric Lane was a dirt road; it was undisputed that Hamric Lane was impassable at times by automobile.

In 1995, Herlong received a deed to the old sawmill property from Ettie Cheat-ham. In December 1997, Stringfellow granted an easement across his property, which he had obtained from Hamric, to Ronnie Weeks and Sally Patterson and their other siblings; in this easement Stringfellow granted the Weeks family the legal right to use Hamric Lane to access their property.

In 1999, the Weeks family, at their own expense, “built up” Hamric Lane to make it more usable. They asked Herlong if he was interested in contributing to the costs of the improvements to Hamric Lane, but he declined. After that point, the Weeks family placed a gate across a portion of Old Mill Road where it traverses their property to prevent Herlong from using that portion of it.

In 2000, Herlong sued the Weekses (“the first lawsuit”) in the Baldwin County Probate Court to determine the exact location of the Johnson-Cheatham easement across the Weekses’ property. The probate court’s determination was appealed to the Baldwin Circuit Court. Herlong testified that, while the first lawsuit was pending, he learned he did not have an easement over Stringfellow’s property via Hamric Lane and that things were getting “sticky” among the neighbors. Herlong contacted Stringfellow and obtained the same easement from Stringfellow to use Hamric Lane that the Weekses had previously obtained. The easement from Stringfellow to Herlong is dated June 2001. Herlong described that easement as identical to the one the Weeks family had obtained from Stringfellow.

During the first lawsuit, Herlong stated that his sole purpose in that action was to determine the exact location of the Johnson-Cheatham easement. Herlong hired surveyors to determine the location of the easement across the Weekses’ property. In its final order, issued June 26, 2003, the circuit court adopted the surveyors’ placement and declared the location determined by Herlong’s surveyors to be the 15-foot easement Johnson granted to Cheatham in 1980. In its order, the circuit court noted:

“[Tjhere is a small piece of property owned by the [Weekses] that lies between the south boundary of Mr. Her-long’s easement and the south boundary of the [Weekses’] property and that Mr. Herlong at present has no right to cross that small piece of property to get to the easement.”

The Weekses did not appeal that order.

This “small piece of property” referred to by the circuit court in its order issued in the first lawsuit was a portion of Hamric Lane immediately before it ended and where it meets Old Mill Road. This portion of Hamric Lane was on the Weekses’ property, and it was not included in the 1980 Johnson-Cheatham easement. Therefore, Herlong had an easement granting him the right to use a portion of Hamric Lane and another easement granting him the right to use a portion of the Weekses’ property for access to his property. However, the “small piece of property” referred to by the circuit court was necessary to connect the two easements. The parties refer to this small piece of property as “the gap.” Without access to the gap, Herlong could not access his property using Hamric Lane.

In the action underlying this appeal, referred to as the “second lawsuit,” Herlong attempted to gain the legal right to access the gap. In September 2003, Herlong filed another petition in the Baldwin County Probate Court, seeking to acquire a private right-of-way across the Weekses’ property where the gap was located. The probate court issued an order condemning the property constituting the gap and ordered that Herlong pay the Weeks family $2,000 for that property.

The Weekses appealed to the Baldwin Circuit Court for a trial de novo. Herlong cross-appealed. Herlong’s complaint, as amended, sought a private condemnation of the gap; a judgment declaring that Herlong had a right of ingress and egress over the property owned by Collins and Hamric and declaring Old Mill Road a public road; and a judgment declaring that Herlong had a prescriptive easement over the gap. By adding the declaratory-judgment counts, Herlong added Collins and Hamric as defendants in the action.

The bench trial lasted one and one-half days; it began on October 25, 2004, and was resumed and completed on May 24, 2005. The trial court heard from Herlong, Huey Collins, Ronnie Weeks, Joe Hamric, Sally Patterson, and several longtime residents of the area. Numerous maps, surveys, and photographs were presented as exhibits.

At the conclusion of the bench trial, the trial judge orally stated his ruling. The trial judge declared that, based on regular and continuous use, Herlong had acquired a prescriptive easement over the gap. The trial judge also stated that Herlong had not established the necessary requirements for a prescriptive easement across Collins’s property, “on what is commonly called Old Mill Road, or whatever it is called. Whether he’s got a real easement, the document speaks for itself.” The Weekses’ lawyer and the trial court engaged in extensive dialogue regarding the trial court’s ruling.

On May 25, 2005, the trial court entered its final order; that order provided:

“This matter is before the Court for a Final Hearing and after taking testimony and receiving documentary evidence, the Court finds that [Herlong] has established an easement by prescription for ingress and egress across the described lands owned by [the Weekses]. The Court further finds that [Herlong] is not entitled to recover under Count I for private condemnation of the lands.”

On July 5, 2005, the Weekses filed their notice of appeal. However, while the appeal was pending, activity continued in the trial court. Herlong filed a motion entitled “Post-Judgment Motion to Enforce Judgment and Close and Distribute Accounts,” and on November 7, 2005, the trial court denied in part and granted in part that motion. In its order, the trial court stated:

“[Herlong’s] Motion to Enforce Judgment is GRANTED in part and DENIED in part. [Herlong] is entitled to have an ingress and egress easement of the same width as the easement connecting to the property, i.e., 30 feet more or less. [Herlong] can be given a key to the gate in lieu of removal of the gate. [Herlong’s] bond is to be refunded.”

On November 22, 2005, Herlong filed another motion, entitled “Motion for Clarification or in the Alternative, for Reconsideration of this Court’s Order Dated November [7], 2005.” Herlong again requested that the trial court order the Weekses to remove the gates and posts at the gap, because they were prohibiting oversized vehicles, i.e., boat trailers and emergency vehicles, from accessing the gap and his property.

The Weekses opposed this motion, but, on December 13, 2005, the trial court granted Herlong’s motion to clarify the November 7, 2005, order. The trial court ordered:

“[Herlong] is entitled to an easement across approximately 7-8 feet of Defendant, Weeks[es]’ property. This easement shall be the same width as the easement currently used by [Herlong] that is commonly known as ‘Hamric Lane,’ which is approximately 30 feet wide. [The Weekses] may maintain a fence along the property line, provided that the fence and gate is [sic] not established in such a way to interfere with ingress and egress by [Herlong]. [Her-long] shall be provided a key to the gate.”

On January 3, 2006, the lawyer for the Weekses filed a motion to supplement the record on appeal. The clerk of the Baldwin Circuit Court certified the supplemental record on January 26, 2006.

In their brief, the Weekses raise the following issues:

“I. Did the trial court commit reversible error by finding that Herlong had a prescriptive easement over the Weeks family land?”
“II. Did the trial court alter or amend the final judgment entered on May 25, 2005, after the time allowed by law and without jurisdiction and without evidence to support that amended judgment?”

(Weekses’ brief, at 8.)

Standard of Review

In New Properties, L.L.C. v. Stewart, 905 So.2d 797 (Ala.2004), this Court stated:

“The trial court heard ore tenus testimony. ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ Philpot v. State, 843 So.2d 122, 125 (Ala.2002). Moreover, when a trial court makes no specific findings of fact, ‘this Court will assume that the trial judge made those findings necessary to support the judgment.’ Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992). Under the ore tenus rule, ‘ “appellate courts are not allowed to substitute their own judgment for that of the trial court if the trial court’s decision is supported by reasonable inferences to be drawn from the evidence.” ’ Yates v. El Bethel Primitive Baptist Church, 847 So.2d 331, 345 (Ala.2002)(quoting Ex parte Pielach, 681 So.2d 154, 155 (Ala.1996)).”

905 So.2d at 799.

Analysis

“I. Did the trial court commit reversible error by finding that Herlong had a prescriptive easement over the Weeks family land?”

The Weekses first argue that Her-long’s evidence did not establish the necessary elements of a prescriptive easement over the Weekses’ property. Herlong, on the other hand, asserts that the Weekses failed to preserve this issue for appellate review because, he argues, the Weekses did not raise this issue before the trial court at the proper time. We conclude that the Weekses preserved their challenge to the sufficiency of the evidence.

In New Properties, L.L.C., supra, this Court addressed the manner in which a party preserves a challenge to the sufficiency of the evidence when, in a bench trial, a trial court issues its ruling without issuing findings of fact. In that case, this Court stated:

“Although Rule 52(b) speaks to those situations in which a trial court makes findings of fact, the rule does not indicate what is to occur when the trial court makes no such findings. As Justice Lyons has noted:
“ ‘If a court makes findings of fact in a nonjury case, Rule 52(b), Ala. R. Civ. P., excuses the losing party from objecting to the findings or moving to amend them or moving for a judgment or a new trial as a predicate for an appellate attack on the sufficiency of the evidence. By negative implication, such steps are required when the court makes no findings of fact.’

905 So.2d at 800 (quoting Ex parte James, 764 So.2d 557, 561 (Ala.1999) (plurality opinion) (Lyons, J., concurring in the result)) (emphasis in New Properties). After reviewing conflicting caselaw on the subject, the Court in New Properties stated:

“[W]e hold that, in a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review. See Rule 52(b), Ala. R. Civ. P....”

905 So.2d at 801-02.

In this case, the trial court’s May 25, 2005, order included no written findings of fact. Thus, based on a simple reading of the pleadings, it would appear that Her-long is correct. However, the Weekses argue that the dialogue that occurred between the trial judge and the Weekses’ counsel at the end of the bench trial constituted “findings of fact” sufficient to preserve their challenge. At the conclusion of the bench trial, the trial judge stated:

“[Trial judge:] I do find there is a prescriptive easement, that 5 by 30 feet has been used. It is to have the amount of property the prescriptive across Ham-ric Lane and then the actual easement for over 20 years to be frustrated in being able to use the last 5 feet by 30 feet wide, that, in fact, there was not a break in the chain or the use of it and that there is a prescriptive easement across there [sic],
“[Weekses’ counsel:] We need a ruling on all three of [Herlong’s] counts for purposes of appeal. I can tell you what those are.... His first claim and it stayed that way for a long time was that he had a condemnation claim for that 5 by 30 strip. Second claim was—
“[Trial judge:] Well, I’ll tell y’all, I don’t know anything about private condemnations. So, I mean, I’ve never handled one of those. I’ve handled easements before. I’ve dealt with that but I don’t know how to handle a private condemnation. I would assume that if an easement is established, then there’s no need for a private condemnation so based on my ruling that the prescriptive easement did exist, I’m gonna deny the claim for this private condemnation. I don’t know if that’s what y’all were searching for or not—
“[Weekses’ counsel:] The second claim right before the last trial was that if he didn’t have any other kind of access down Old Mill Road, then he had a prescriptive right to cross Collins and Hamric’s land on Old Mill Road, that he had a prescriptive right to cross there. I would think that’s probably true since he’s got an express deeded access. He’s probably got more than a prescriptive easement.
“[Trial judge:] I don’t think that’s necessarily true.... I do not find that he has a prescriptive easement on what’s commonly referred to as Old Mill Road, whatever it may be, across the Collins’s property, that he is not — Mr. Herlong has not established requisite requirements to establish a prescriptive easement across it. Whether he’s got a real easement, the document speaks for itself. If there’s a deeded easement, there’s a deeded easement.
“[Weekses’ counsel:] And your ruling, Your Honor, is that he’s got a prescriptive easement over the 5 by 30 plot at issue here that’s unbroken even by that 1980 easement and the blocking in '99?
“[Trial court:] 1980 real easement doesn’t terminate the prescriptive easement rights that you had because that easement didn’t affect it. I mean—
“[Weekses’ counsel:] Just wanted a ruling because that was—
“[Trial court:] I gave you my ruling but I don’t like — ... I don’t like you or any other lawyer giving the ruling and then saying is that your ruling because then you’re wording it the way you want it to be and that’s not what I said. What I said was — here’s what I said, he has a prescriptive easement for — because he used regular and continuous use across that 5 by 30 feet and I didn’t say anything else. That’s all I said. What it comes to whatever count that is.
“[Weekses’ counsel:] Yes, your Honor. That’s Count Three.”

Although the Weekses made no motion for a judgment as a matter of law either at the close of Herlong’s case or at the conclusion of all the evidence and did not request a new trial, we find that the trial court’s reasoning is stated adequately in the record. The purpose of findings of fact is to allow the parties and the appellate court to understand the basis of the trial court’s order. The exchange between the Weekses’ counsel and the trial judge provides a basis for an appeal on the sufficiency of the evidence as it relates to the prescriptive easement over the gap. Thus, the Weekses’ challenge to the sufficiency of Herlong’s evidence has been preserved for appellate review.

Although we agree that the Weekses have properly preserved their right to challenge on appeal the sufficiency of the evidence to support the trial court’s ruling, we conclude that the Weekses have not properly preserved the right to raise on appeal their next argument — that the doctrines of res judicata and collateral estoppel barred the trial court’s judgment holding that Herlong had a prescriptive easement over the gap. Rule 8(c), Ala. R. Civ. P., states, in part:

“(c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”

(Emphasis added.) The language of Rule 8(c) is mandatory. In Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793 (Ala.1984), this Court stated:

“[An affirmative defense] is required to be specially pleaded under Rule 8(c). See Nash v. Vann, 390 So.2d 301, 303 (Ala.Civ.App.1980). Under the Federal Rules of Civil Procedure, after which our rules are modeled, the consequences of a party’s failure to plead an affirmative defense have been explained as follows:
“ ‘If an affirmative defense is not pleaded it is waived to the extent that the party who should have pleaded the affirmative defense may not introduce evidence in support thereof, unless the adverse party makes no objection in which case the issues are enlarged, or unless an amendment to set the affirmative defense is properly made.’
“2A J. Moore, Federal Practice § 8.27[3] at 8-251 (2d Ed.1948). See Funding Systems Leasing Corporation v. Pugh, 530 F.2d 91 (5th Cir.1976).”

451 So.2d at 796.

The Weekses did not assert res judicata and collateral estoppel in any of the pleadings filed with the trial court and did not attempt to amend their pleadings to add those defenses. Further, the Weekses’ lawyer did not argue those affirmative defenses before the trial court. For these reasons, we conclude that the Weekses waived the affirmative defenses of res judi-cata and collateral estoppel.

Having found that the Weekses preserved their challenge to the sufficiency of Herlong’s evidence in support of a prescriptive easement, we now review the evidence presented to the trial court in support of that claim. Upon that review, we hold that the record contains evidence sufficient to support the trial court’s ruling. The trial court heard testimony, albeit disputed and confusing, that Herlong and his predecessors, openly and without the permission of the owner of the land, continuously used Hamric Lane, including the gap, as a means of ingress and egress to their property since 1965. Collins’s testimony agreed with Herlong’s testimony on these essential elements. The other witnesses provided differing accounts of how Herlong and his predecessors had accessed the property now owned by Her-long throughout the years.

The testimony provided by Herlong and by Collins, if believed, was sufficient to establish the requisite elements of a prescriptive easement. See Jones v. Johnson, 827 So.2d 768, 771-72 (Ala.2002):

“This Court has often stated that ‘[a]n easement is an interest in land and, generally, can be created in only three ways: first, by deed; second, by prescription; and, third, by adverse use for the statutory period.’ An easement by 'prescription is acquired by use of ‘ “the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner.” ’ ”

(Quoting Blalock v. Conzelman, 751 So.2d 2, 4 (Ala.1999), quoting, in turn, Bull v. Salsman, 435 So.2d 27, 29 (Ala.1983) (citations omitted).) See also Apley v. Tagert, 584 So.2d 816, 817-18 (Ala.1991).

When the trial court receives evidence ore tenus and resolves a conflict of fact in favor of one party, this Court will not substitute its judgment for that of the trial court unless the trial court’s decision is palpably erroneous or manifestly unjust. Philpot v. State, 843 So.2d 122, 125 (Ala. 2002). The trial court’s resolution of this disputed issue is supported by reasonable inferences to be drawn from the ore tenus evidence, and, although we might not have resolved the issue as the trial judge did, we conclude that his decision is not palpably erroneous or manifestly unjust. We affirm the trial court’s judgment as stated in the May 25, 2005, order insofar as it holds that Herlong has a prescriptive easement over the gap.

“II. Did the trial court alter or amend the final judgment entered on May 25, 2005, after the time allowed by law and without jurisdiction and without evidence to support that amended judgment?”

The Weekses next assert that the trial court had no jurisdiction to modify its final order after the notice of appeal was filed. In order to address this issue, we review the actions of the trial court in chronological order.

The initial order of the trial court was entered on May 25, 2005. The Weekses filed their notice of appeal on July 5, 2005. On September 13, 2005, Herlong filed a motion entitled “Post-Judgment Motion to Enforce Judgment and Close and Distribute Accounts.” In that motion, he asked the trial court to compel the Weekses to comply with the May 25, 2005, order by removing all fencing and gates so that Herlong could access the gap. He argued that, although the Weekses had filed an appeal of the trial court’s judgment, they had never posted a supersedeas bond to stay the judgment and, thus, that the judgment was enforceable even while the case was pending on appeal. Herlong also requested that the trial court direct the clerk to refund the money Herlong had posted as security for the appeal to the circuit court.

The Weekses responded in a letter to the trial court that there was no need to remove the gates, because Herlong had full access to his easement by using those gates. The parties then debated extensively in documents filed in the trial court whether the easement granted to Herlong was 30 feet wide or 15 feet wide.

On November 7, 2005, the trial court granted in part and denied in part Her-long’s motion to enforce the judgment. The trial court granted the portion of Her-long’s motion requesting that his security for his cross-appeal to the circuit court be refunded. The trial court also stated that Herlong was to have an easement “the same width as the easement connecting to the property, i.e., 30 feet more or less.” The trial court also stated that Herlong could “be given a key to the gate in lieu of removal of the gate.”

We find no error in the trial court’s issuing the November 7, 2005, order. The Weekses did not file a supersedeas bond; therefore, the trial court retained jurisdiction to enforce the judgment, and this jurisdiction continued even after the notice of appeal was filed. See George v. Sims, 888 So.2d 1224, 1227 (Ala.2004) (even after the expiration of 30 days, a trial court has “ ‘residual jurisdiction or authority to take certain actions necessary to enforce or interpret a final judgment’ ”).

The trial court was also entitled to correct its previous order, pursuant to Rule 60(a), Ala. R. Civ. P. That rule provides:

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

Under this procedural rule, the trial court may correct its judgment or order at any time, even while an appeal is pending. The term “clerical mistakes” as used within this rule is not limited solely to errors by the clerk in transcription; “clerical mistakes” also include errors by others, such as a jury foreman, counsel, a party, or the judge. Continental Oil Co. v. Williams, 370 So.2d 953 (Ala.1979). However, a “Rule 60(a) motion can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced.” Committee Comments on 1973 Adoption, Rule 60, Ala. R. Civ. P.

We conclude that the portion of the trial court’s November 7, 2005, order addressing the dimensions of the easement granted Herlong was a correction of a mistake or omission in its May 25, 2005, order and was valid under Rule 60(a), Ala. R. Civ. P. The main focus of the bench trial was to determine whether Herlong possessed an easement across the gap. Even more significantly, in its oral exchange with the Weekses’ counsel at the conclusion of the bench trial, the trial judge expressly stated that Herlong had a prescriptive easement, based on “regular and continuous use across that 5 by 30 feet” of the Weekses’ property. At trial, the parties often referred to the gap as a 5-by-30-foot strip. Thus, the original ruling of the trial court was that Herlong had an easement across the gap.

However, the trial court’s written order of May 25, 2005, failed to specify the dimensions of the prescriptive easement it had declared in its oral ruling. Because the November 7, 2005, order merely corrected an omission in the May 25, 2005, judgment, the trial court was authorized under Rule 60(a), Ala. R. Civ. P., to issue that correction. See, e.g., Merchant v. Merchant, 599 So.2d 1198 (Ala.Civ.App.1992) (trial court had authority to correct its previous order in which it had failed to reduce to writing its order that husband pay wife’s attorney fees; the correction was not a modification or change from divorce judgment, nor a reconsideration of contrary announcement, but was based on the transcript of an earlier proceeding and on trial court’s recollection of what had happened).

We also consider the trial court’s December 13, 2005, order to be a correction of its earlier orders. This order was the result of Herlong’s November 22, 2005, motion entitled “Motion for Clarification or in the Alternative, for Reconsideration of this Court’s Order dated November [7], 2005.” Herlong again requested that the trial court order the Weekses to remove the gates and posts from the area of the easement, because they prohibited oversized vehicles such as boat trailers and emergency vehicles from entering Her-long’s property. Herlong argued that the gates and posts at either end of the gap would not accommodate emergency vehicles. On December 13, 2005, the trial court issued another order. In that order, the trial court stated:

“The parties have filed motions and submitted letters to the Court asking for clarification of the Court’s findings or, in the alternative, amending the findings. In order to clarify the previous orders the Court finds:
“[Herlong] is entitled to an easement across approximately 7-8 feet of Defendant, Weeks[es]’ property. This easement shall be the same width as the easement currently used by [Herlong] that is commonly known as ‘Hamric Lane,’ which is approximately 30 feet wide. [The Weekses] may maintain a fence along the property line, provided that the fence and gate is [sic] not established in such a way to interfere with ingress and egress by [Herlong]. [Her-long] shall be provided a key to the gate.
“All other portions of the previous findings that are not inconsistent with this order shall remain in force.”

In this order, the trial court simply cleared up the confusion surrounding the dimensions of the gap and the Weekses’ maintenance of a gate. Although the trial court previously had announced that Her-long was entitled to an easement measuring 5 feet by 30 feet, those dimensions did not encompass the entire area of the gap discussed at trial and did not match the dimensions of the gap shown on an exhibit at the trial. Additionally, Herlong testified at trial that “everyone, I think, came to realize that Hamric Lane did not connect to my [earlier] easement by a gap of about five and a half feet on the west and eight feet on the east.” Thus, the trial court’s December 13, 2005, order corrected the dimensions of the easement awarded to Herlong; those corrections were in accord with the evidence submitted at trial. The trial court was entitled, pursuant to Rule 60(a), Ala. R. Civ. P., to correct this error.

For the reasons stated, we affirm the trial court’s judgment.

AFFIRMED.

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

LYONS, J., recuses himself.

      . Although the record does not present a complete chain of title to all property formerly owned by Louis Collins, presumably Huey Collins received title to the property he currently owns through Louis Collins's chain of title. We also presume that Louis Collins deeded other portions of his property to third parties at various times.

      . In a prior lawsuit involving Herlong and the Weekses, another Weeks sibling, Adele Camp, was named as a defendant. Adele Camp is also mentioned in some of the pleadings in this action. However, Adele Camp does not appear to have been named as a defendant in this action.

      . At that time, Herlong asked the Weekses to obtain the identical easement for him from Stringfellow. However, the easement in favor of Herlong was not obtained at this time because, Ronnie Joe Weeks stated, the Weeks family did not want to pay on Herlong’s behalf the legal fees associated with obtaining an easement in his favor.

      . In his third amendment to the complaint, Herlong also added Baldwin County as a defendant. Herlong characterized the Weekses’ position as arguing that Old Mill Road was a public road. Herlong asserted that if the trial court adopted this position, then Baldwin County would be responsible for the maintenance of Old Mill Road.

      . Herlong has filed with this Court a motion to strike the supplemental record on appeal and all portions of the Weekses’ briefs that rely on the supplemental record. The Weeks-es responded with a motion to accept the supplemental record. On April 10, 2006, we denied Herlong’s motion and granted the Weekses' motion to accept the supplemental record. See Rule 10(f), Ala. R.App. P. As noted by the Weekses in their reply brief, the orders of the trial court dated November 7, 2005, and December 13, 2005, are contained only in the supplemental record. Herlong cannot object to this Court’s consideration of the supplemental record and, at the same time, argue that those orders are valid and binding upon the Weekses.

      . Rule 52(b), Ala. R. Civ. P., provides:
      "Upon motion of a party filed not later than thirty (30) days after judgment or entry of findings and conclusions the court may amend its findings or make additional findings or may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59. When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the court an objection to such findings or has made a motion to amend them or a motion for judgment or a motion for a new trial."


source: Caselaw Access Project

author: SMITH, Justice. LYONS, Justice

license: Public Domain

text:
    ALLSTATE LIFE INSURANCE COMPANY v. Randall W. PARKER, Jr.
    1040481.
    Supreme Court of Alabama.
    Aug. 4, 2006.
    Charles D. Stewart and Steve R. Bur-ford of Spain & Gillon, L.L.C., Birmingham, for appellant.
    Clinton C. Carter of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellee.
   SMITH, Justice.

Allstate Life Insurance Company appeals by permission, in accordance with Rule 5, Ala. R.App. P., from the denial of its motion for a summary judgment in an action filed by Randall W. Parker, Jr., against Allstate and its agent, Frank Stin-son. Because we conclude that no justiciable controversy existed at the time Parker filed his complaint, we remand with directions for the trial court to dismiss Parker’s action against Allstate without prejudice.

Facts and Procedural History

On February 26, 1993, Parker went to the office of Frank Stinson, an agent who sold insurance policies for Allstate. At that time, Parker’s brother, Robert Parker, worked for Stinson, who was Robert’s father-in-law. During his meeting with Stinson, Parker purchased two life-insurance policies — one named Parker as the insured; the other named Parker’s daughter as the insured.

Parker’s complaint alleges that during that meeting Stinson described the policies not as “life insurance” but as a “retirement program” for Parker and an “education fund” for Parker’s daughter. Parker claims that Stinson printed an illustration showing projected future values of the policies. Stinson allegedly discussed the illustration with Parker but did not give a copy of it to Parker. According to Parker, Stin-son claimed that the “retirement program” policy would provide Parker with “a lump sum of money” in the “$80,000 mark” when he reached age 65 and that the “education fund” policy similarly would provide $48,000 to $50,000 in cash when Parker’s daughter reached the age of 18. At the end of the meeting, Parker signed two applications, each of which had been filled out by Robert, who was also present at the meeting. Both applications were entitled “Application for Life Insurance”; neither made reference to a “retirement program” or an “education fund.” In this appeal, Parker concedes that it is undisputed that he knew he was purchasing life-insurance policies.

Parker received copies of the policies in March 1993, and he immediately reviewed them, although he says he did not read them “word for word.” On each of the policies, Parker looked at page 4, which was entitled “Table of Guaranteed Cash Values.” In the “retirement program” policy, Parker noticed that the policy guaranteed a cash value of only $11,540 when he reached age 65 rather than the “$80,000 mark” that Parker claims Stinson had promised.

The next morning, Parker telephoned Stinson and questioned him about the discrepancy between the policy’s stated guaranteed cash value of $11,540 and Stinson’s alleged representation that the policy would have a value in the “$80,000 mark.” Parker claims that Stinson said that the guaranteed value chart in the policy did not reflect what Parker referred to as the “projective [sic] values,” and Parker alleges that Stinson assured him that the policy was “going to be worth $80,000 [when Parker reached] age 65.”

Although Parker also reviewed the policy on the life of his daughter and noticed that the guaranteed cash value for that policy was $2,011 when his daughter reached age 18 — rather than Stinson’s alleged representation that it would be worth $48,000 to $50,000 at that time— Parker could not remember whether he also questioned Stinson about the policy on his daughter. Instead, he testified that he assumed that Stinson intended for the alleged reassurances regarding the projections on the policy on Parker’s life to also reassure Parker regarding the projections on the policy on his daughter’s life.

Parker had no further questions for Stinson, and he continued to pay premiums on the insurance policies. In March 1994, Parker received the first annual report for each policy, and the reports were accompanied by letters from Stinson. The letters and the reports made several references to the policies as policies of “life insurance.” Neither the reports nor the letters, however, referred to a “retirement program” or an “education fund.” Although Parker received similar reports and letters each year thereafter until 2000, Parker testified that he did not read any of them.

On March 6, 2000, Parker filed an action in the Coffee Circuit Court, naming Stin-son and Allstate as defendants. Parker’s complaint alleged that Stinson and Allstate had engaged in fraudulent misrepresentation and fraudulent suppression in connection with Parker’s purchase of the two policies.

Allstate filed a motion for a summary judgment; the trial court denied that motion on December 1, 2004. Allstate then filed a motion requesting the trial court to provide a certification in accordance with Rule 5(a), Ala. R.App. P. The trial court granted Allstate’s motion, and Allstate petitioned this Court for permission to appeal under Rule 5. This Court granted Allstate’s petition.

Discussion

Although this permissive appeal arises from the trial court’s denial of Allstate’s motion for a summary judgment, we conclude, after reviewing the facts and the relevant caselaw, that no justiciable controversy existed at the time that Parker filed his complaint. Therefore, the trial court lacks jurisdiction to consider the merits of Parker’s claims.

In Donoghue v. American National Insurance Co., 838 So.2d 1032 (AIa.2002), this Court considered whether an action brought by an insured against his insurance company presented a justiciable controversy. Donoghue, the insured, alleged that when he purchased the life-insurance policy at issue from American National Life Insurance Company, American National’s agent fraudulently told him that the policy would provide a separate “retirement fund” in addition to a death benefit. Donoghue claimed that American National’s agent represented that the separate “retirement fund” would be worth $125,000 when Donoghue reached age 65; however, Donoghue alleged that he had “later learned that there was no such ‘retirement fund.’ ” 838 So.2d at 1034. American National filed a motion to dismiss Donoghue’s action, in accordance with Rule 12(b)(6), Ala. R. Civ. P., and the trial court granted the motion, concluding “that Donoghue’s claims were not ripe for adjudication.” 838 So.2d at 1034. This Court reversed.

The trial court in Donoghue had relied on decisions of this Court that involved claims of fraud related to “vanishing premium” insurance policies, including DeArman v. Liberty National Life Insurance Co., 786 So.2d 1090 (Ala.2000), Stringfellow v. State Farm Life Insurance Co., 743 So.2d 439 (Ala.1999), and Williamson v. Indianapolis Life Insurance Co., 741 So.2d 1057 (Ala.1999). Donoghue conceded that those cases stand for the proposition that “a claim alleging that a plaintiff might have to pay premiums beyond the date on which the premiums were represented to ‘vanish’ is not ripe for adjudication until a premium payment is made beyond the ‘vanish’ date.” Donoghue, 838 So.2d at 1037 (citing Williamson, 741 So.2d at 1060-61 (“Although there are projections suggesting that the agent’s alleged representation [that premiums would ‘vanish’ in 2002] was false, there is absolutely no way to know whether this representation was true or was false, until the end of the year 2002.”); Stringfellow, 743 So.2d at 440—41 (claims against insurer filed in December 1997 were not ripe for adjudication because they were based on an alleged misrepresentation that no premium payments would be required after July 11, 1998); and DeArman, 786 So.2d at 1092 (“The DeArmans filed this action in January 1996, one year before the represented [‘vanish’] date. Therefore, no cause of action had accrued when the DeArmans filed their complaint and no justiciable controversy existed.”)).

This Court in Donoghue distinguished the “vanishing premium” decisions, concluding instead that Donoghue’s claims were more analogous to the claims presented in Boswell v. Liberty National Life Insurance Co., 643 So.2d 580 (Ala.1994). Donoghue, 838 So.2d at 1037. Donoghue quoted the following passage from Williamson:

‘“In Boswell, this Court held that insureds could maintain fraudulent-misrepresentation and suppression claims based on their allegations that the insurer had persuaded them to surrender one policy and to purchase, for greater premiums, a policy that was represented to provide greater benefits. The basic question in that case was whether, given that the plaintiffs had made no claim under the policy, they had suffered any injury. This Court held:
“ ‘ “The injury or damage alleged is that the plaintiffs were persuaded, through the fraudulent acts of the defendants, to pay for something they did not receive. In other words, the alleged injury or damage was the payment of greater premiums that were unnecessary because the plaintiffs received no additional coverage in return for the greater premiums and lost benefits they already enjoyed under the old policy.”
‘Boswell, 643 So.2d at 582. Williamson argues that his case is similar to Boswell. We are not persuaded that it is.
“ ‘In Boswell, the plaintiffs were persuaded to purchase something that did not exist and never would exist. In the present case, Williamson purchased policies that will perform as he says he was told they would, if he dies before 2003 or if he does not have to pay premiums on the policies after the year 2002. In other words, because the performance of the policies is directly related to interest rates, Williamson today can only speculate that the policies will not sustain themselves as he claims he was promised.’ ”

Donoghue, 838 So.2d at 1038 (quoting Williamson, 741 So.2d at 1061). This Court, concluding that Donoghue’s complaint presented a justiciable claim, held

“that, under the standard of review for motions to dismiss under Rule 12(b)(6), the dismissal of Donoghue’s claims was erroneous. Viewing the allegations of Donoghue’s complaint most strongly in his favor, we cannot conclude that Dono-ghue could not prove a set of facts similar to those in Boswell — -namely, that due to the alleged tortious actions of the defendants, Donoghue was paying for something that ‘did not exist and never would exist’ and that he consequently has suffered injury sufficient to ripen his claims. Therefore, we reverse the trial court’s dismissal of Donoghue’s claims.”

Donoghue, 838 So.2d at 1038.

Initially, Parker’s complaint appears to allege claims similar to those alleged by Donoghue. For example, paragraph 5 of Parker’s amended complaint states that Parker “was approached by defendant Stinson, acting as agent and/or representative for defendant Allstate, about purchasing an educational fund and a retirement plan with death benefits,” and paragraph 20 alleges that Stinson and Allstate “fraudulently failed to disclose to [Parker] that the policies he purchased did not have a retirement plan or an educational fund” and “that the policies were nothing more than life insurance policies ... [and] every dollar of [Parker’s] deposits was being used for life insurance[,] not as a retirement plan or an educational fund.” Thus, Parker’s allegations suggest that it was fraudulently represented to him that he was purchasing products from Allstate that would offer him a separate retirement program and an education fund in addition to a death benefit; if that were the case, then Parker’s claims arguably would be analogous to the insured’s allegations in Donoghue.

However, Parker’s claims of fraudulent misrepresentation and fraudulent suppression are nothing more than speculation that the policies will not perform as Parker claims he was promised they would. Stated somewhat differently, Parker’s claims are based only on speculation that the policy of insurance on his life will not have a cash value of $80,000 when Parker attains age 65 and that the policy on his daughter will not be worth $48,000 when she reaches age 18.

In his deposition, Parker testified as follows regarding his “discovery” of the alleged fraud:

“Q. Tell me this: What are you upset about your Allstate policy for?
“A. I guess the money is not going to be there, from the way I understand it.
“Q. Tell me what — you say ‘retirement program.’ What do you understand a retirement program to be?
“A. In other words, the way I understand it, at age 65, when I get ready to retire, I was going to have a lump sum of money that I could retire on.

(Emphasis added.)

As mentioned, Parker reviewed the insurance policies upon receiving them in March 1993. Although he says he did not read the polices “word for word,” he did review the “Table of Guaranteed Cash Values” for the policies. When he noticed that the guaranteed cash value of the policy on his life was $11,712 at age 65 rather than the “$80,000 mark” he claims Stinson had promised, Parker almost immediately telephoned Stinson. Parker testified as follows about his telephone conversation with Stinson:

“Q. You say you called Mr. Stinson; what did you say to Mr. Stinson?
“A. I asked him, I said, ‘Frank, I looked over the policies last night, and I noticed in here it’s not showing where I’m getting any retirement of $80,000. And as a matter of fact, it’s showing like $11,000.’
“He said, ‘Well, it’s not showing’— what he told me was, ‘It’s not showing the extra interest and all of that. That’s just the guaranteed stuff, and this is not any of the projective [sic] values. Your policy is going to be worth $80,000 at age 65/ is what he told me.
“... I guess he was reassuring me that I was going to be able to get the $80,000 at age 65. ... ”

When asked at his deposition whether he questioned Stinson about the cash value of the policy on the life of his daughter, Parker stated that he did not remember asking about her policy. Instead, he testified:

“A. ... [Stinson] assured — that’s when he told me, you know: ‘This doesn’t have the projective [sic] values in there, and the interest and all of that.’ And I said, ‘Are you sure, Frank?’ And he said, ‘Randall, you’re going to have the money. It’s the best thing on the market now. You will have the $80,000.’
“I’m assuming that he was also at the same time reassuring me that her policy or plan was going to be just as well.
“Q. Mr. Parker, it didn’t strike you as being strange or raising some question in your mind about how under the guaranteed values of my insurance policy of my contract, it only shows $2,000 and that this man is telling me something over the phone that it’s going to have $48,000, how that was going to happen?
“A. If they were paying 12 to 14 percent, which interest was probably about that when I bought this policy, I could assume — make a logical decision— and if it didn’t have the projective [sic] values attached to it, which he assured me was going to be like the proposal that he ran off, I could see where it could possibly be that much.
“Q. Think about the words you’ve just used, Mr. Parker, ‘projective [sic] values’ you think could possibly have been that much. That’s what we’re talking about when say ‘projective [sic] values.’
... [WJe’re talking about possibilities and not guarantees, aren’t we?
“A. Yes, sir.
“Q. You’ve testified that, without using the term I used, ‘cash value,’ you understood these monies that will be available for your daughter’s education and your retirement was money in the policies]?
“A. Yes, sir.
“Q. Well, even though you characterized them as ‘retirement monies’ or ‘education monies,’ you of course understood that whatever monies were available at those times could be used by you for any purpose?
“A. Right.
“Q. In other words, while the money could certainly be used for your daughter’s education, it could also be used to buy a car for her if she wanted to use it that way, right?
“A. Yes, sir.
“Q. And while the money may be used by you for retirement purposes, you could have bought a boat or car, taken a trip with it, right?
“A. Yes, sir.”

In his brief to this Court, Parker makes the following statements:

“Randall Parker was cognizant of the fact he bought ‘life insurance;’ however, his perception of Mr. Stinson’s representations was the ‘life insurance’ would have sufficient cash value to provide a retirement fund and education fund at certain times in the future.
“It is undisputed that Mr. Parker understood the insurance sold by Mr. Stin-son was that of life insurance. However, [Allstate] suggests in its brief that Mr. Parker knew the policy Mr. Stinson sold him was a life insurance policy, as if it could not provide a ‘retirement fund’ or ‘education fund.’ ...
“There is no distinction between ‘life insurance’ and ‘retirement fund’ or ‘education fund,’ as [Allstate] suggests in its brief. Retirement funds or education funds are merely benefits of a life insurance policy provided by the accumulation of cash value, not a separate contract, investment, or policy.”

(Parker’s brief, pp. 3-4 (emphasis added).)

Parker’s testimony and his brief to this Court therefore demonstrate that when he purchased the policies he understood that the alleged “retirement program” and “education fund” were not separate from the cash value of the policies — that is, the “retirement program” to which Stinson allegedly referred was the projected cash value of the policy on Parker’s life, and the alleged “education fund” was the projected cash value of the policy on the life of Parker’s daughter.

It is undisputed that the policies have “cash value” and that Parker understood that the alleged “retirement program” and “education fund” consisted of the projected cash values of the two policies, not their guaranteed cash values. Thus, Parker’s claims are not analogous to the claims in Donoghue or Boswell because Parker has not alleged that as a result of the defendants’ tortious conduct he “was paying for something that ‘did not exist and never would exist’ and that he consequently has suffered injury sufficient to ripen his claims.” Donoghue, 838 So.2d at 1038. Rather, Parker claims that he purchased the policies because of an alleged promise that they would be worth certain amounts at certain dates in the future. Because at the time he filed the underlying action it was possible that the policies would be worth what they were allegedly promised to be, Parker had suffered no discernible injury. Consequently, Parker has not presented claims that are ripe for adjudication. Williamson, 741 So.2d at 1061 (“[Bjecause the performance of the policies is directly related to interest rates, Williamson today can only speculate that the policies will not sustain themselves as he claims he was promised. We conclude that Williamson had suffered no discernible injury when he filed his action.... ”). The trial court, therefore, is without jurisdiction to consider Parker’s claims on the merits. Stringfellow, 743 So.2d at 441.

Conclusion

We remand this action for the trial court to dismiss Parker’s claims against Allstate without prejudice.

REMANDED WITH DIRECTIONS.

SEE, HARWOOD, WOODALL, STUART, BOLIN, and PARKER, JJ., concur.

LYONS, J., concurs specially.

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

LYONS, Justice

(concurring specially).

I dissented in the seminal case of Williamson v. Indianapolis Life Insurance Co., 741 So.2d 1057 (Ala.1999), upon which the main opinion principally relies. Because Williamson is now the settled law of this State, and not because I agree with it, I concur in the main opinion.

      . Stinson is not a party to this appeal.

      . On February 26, 1993, Parker was 30 years old; Parker’s daughter was 4 years old.

      . The policies were accompanied by a "10 DAY OFFER TO REFUND YOUR MONEY” that provided: "If you are not satisfied with this policy, you may void it by returning it to us or our agent within 10 days after you receive it. We will give you all of your money back.”

      .Both of the policies were paid by "flexible” premiums. The initial annual premium on the policy insuring Parker’s life was $704, and the "planned” annual premium was $720; for the policy insuring the life of Parker’s daughter, the initial annual premium was $200, and the "planned” annual premium was $240.

      . In its summary-judgment motion, Allstate argued, among other things, that Parker could not have reasonably relied upon Stin-son’s alleged fraudulent misrepresentations because, Allstate contended, the terms of the policies and the annual reports .Parker had received from Allstate contradicted the alleged misrepresentations. Allstate also argued that Parker’s claims were barred by the statute of limitations applicable to claims of fraudulent misrepresentation and fraudulent suppression.

      . Rule 5(a), Ala. R.App. P., provides, in relevant part:
      "A petition to appeal from an interlocutory order must contain a certification by the trial judge that, in the judge’s opinion, the interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion, that an immediate appeal from the order would materially advance the ultimate termination of the litigation, and that the appeal would avoid protracted and expensive litigation. The trial judge must include in the certification a statement of the controlling question of law.”

      . The trial court certified the following statements as the two controlling questions of law in Parker's action against Allstate:
      "1. Whether the plaintiff, Randall Parker, could have reasonably relied upon the alleged misrepresentations made by his brother, Robert Parker, and Robert Parker’s father-in-law, Frank Stinson, that Randall Parker was purchasing a ‘retirement plan’ and ‘education plan' that would pay specific amounts in the future where it is undisputed that Randall Parker had been a licensed life insurance agent and had allegedly sold similar policies in the past and that the documents Randall Parker received were contrary to the alleged misrepresentations.
      "2. Whether the statute of limitations was tolled for seven (7) years after Randall Parker applied for the policies at issue despite the fact that documents Randall Parker received were contrary to the alleged misrepresentations. ’'

      .Because justiciability is jurisdictional, we may consider it ex mero motu. Bedsole v. Goodloe, 912 So.2d 508, 518 (Ala.2005) (“ ' "[J]usticiability is jurisdictional,” Ex parte State ex rel. James, 711 So.2d [952,] 960 n. 2 (Ala.1998); hence, if necessary, "this Courtis duty bound to notice ex mero motu the absence of subject matter jurisdiction.” ' Baldwin County [v. Bay Minette], 854 So.2d [42,] 45 [ (Ala.2003) ] (quoting Stamps [v. Jefferson County Bd. of Educ.], 642 So.2d [941,] 945 n. 2 [ (Ala.1994) ]).”). See also Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham 912 So.2d 204, 213 (Ala.2005) (“None of the parties to this case has argued that the issue before us is nonjusticiable; however, questions regarding jurisdiction, that is, questions of the constitutional authority of the courts to exercise power over a matter — going to the very core of the Constitution's structuring the government to constrain its exercise of power — are of such importance that it is the duty of this Court to consider the absence of jurisdiction on our own initiative.”); Stringfellow v. State Farm Life Ins. Co., 743 So.2d 439, 441 (Ala.1999) ("As this Court stated in Luken [v. BancBoston Mortgage Corp., 580 So.2d 578, 580 (Ala.1991)], 'there must be a bona fide existing controversy of a justiciable character or the court is without jurisdiction.' ... Further, in International Longshoremen’s Ass'n v. Davis, 470 So.2d 1215, 1216 (Ala.1985), this Court held: ‘Subject matter jurisdiction [cannot] be conferred by agreement nor can it be waived. Indeed it is incumbent upon the court to notice [a lack of] subject matter jurisdiction sua sponte.’ ”).


author: NABERS, Chief Justice.

text:
    EXTERMITECH, INC. v. GLASSCOCK, INC., and Chuck Glasscock.
    1040308.
    Supreme Court of Alabama.
    Aug. 11, 2006.

      Daniel S. Wolter and Brandon T. Bishop of Gaines, Wolter & Kinney, P.C., Birmingham, for appellant.
    Jeffrey W. Smith of Slaten & O’Connor, Montgomery, for appellees.
   NABERS, Chief Justice.

Extermitech, Inc., appeals from a summary judgment for Glasscock, Inc., and Chuck Glasscock (collectively “Glasscock”) on Glasscock’s cross-claim against Exter-mitech. For the reasons set forth below, we affirm that judgment in part and reverse it in part.

I. Facts

Chuck Glasscock operated Glasscock, Inc., a pest-control business in Montgomery from 1996 through 2001. On May 31, 1996, Glasscock, Inc., issued a residential termite soil treatment certificate (“the certificate”) for termite-control services to the builder of a new residence at 7131 Wyn-grove Drive in Montgomery. The certificate stated, in pertinent part:

“This guarantee of termite soil treatment assures the property owner that the chemical used, their [sic] concentration, the method and rate of application comply with all applicable federal and state standards.
“Guarantee: Glasscock, Inc., guarantees to the property owner and/or mortgagor that the soil [at 7131 Wyngrove Drive] has been treated that the chemical used in the treatment, its concentration, rate, method and location [comply with applicable HUD regulations.]
“Glasscock, Inc., also certifies to the owner, his successor or assigns, that the soil [at 7131 Wyngrove Drive] has been treated and that the chemical used in the treatment, its concentration, the method and rate of application comply with current standards of the appropriate regulatory bodies.
“Glasscock, Inc. hereby agrees that if termite infestation should occur within one (1) year from the date of the original soil treatment, Glasscock, Inc., will retreat the soil and/or structures according to all state and federal regulatory standards in effect at the time, without cost to the owner and/or mortgagor. “Glasscock, Inc., further agrees to repair all construction damage caused by active subterranean termites within the one (1) year builder warranty period. The repairs will be made without cost to the owner and/or mortgagor.
“The retreat warranty may be extended on a year to year basis after the original twelve (12) month period by the payment of a negotiated annual reinspection fee. The extension of the retreat warranty will be subject to the terms and conditions of a separate warranty agreement which must be agreed upon by the owner of the property at that time.”

Jim McGlaughlin and Kayla McGlaugh-lin purchased the newly constructed house at 7131 Wyngrove Drive in 1996. The warranties in the certificate extended to the McGlaughlins, as the owners of the property, by the terms of the certificate.

The McGlaughlins allege that, between 1996 and 2001, they renewed and extended the “re-treat” warranty in the certificate by requesting that Glasscock perform termite inspections. The McGlaughlins also allege that termite infestation was evident at their house in May 2001. They contend that Glasscock had knowledge of that infestation and that, at that time, assured them that Glasscock was performing the termite re-treatment services contemplated in the certificate.

On November 1, 2001, Extermitech and Glasscock executed a “Contract for Purchase of Business” under which Extermi-tech agreed to pay $285,000 for the assets (including the termite-warranty contracts, equipment, inventory, and customer lists) used in the business of Glasscock, Inc. (“the purchase contract”). The purchase contract stated that the transaction was a sale of assets (not a transfer of the stock of Glasscock, Inc.), that Glasscock would not compete against Extermitech in the pest-control business in Montgomery County for five years following the closing of the transaction contemplated in the purchase contract, and that Glasscock would keep all accounts receivable resulting from termite-service work that had been performed before that closing.

The purchase contract contained multiple provisions relating to the parties’ post-sale responsibility for the liabilities of Glasscock, Inc. Page one of the purchase contract stated: “This is to be a purchase of assets only; it is understood that [Ex-termitech] shall not assume any of the liabilities of [Glasscock].” Additionally, the following provision appears on pages 2-3 of the purchase contract:

“[Glasscock] agrees to indemnify and hold harmless [Extermitech] for any and all of its liabilities, accounts payable, or any debt which is secured by any of the inventory, equipment or other assets which are to be transferred at closing. However, it is understood that [Extermi-tech] will assume full responsibility and liability under termite warranties previously issued and transferred to [Exter-mitech] pursuant to this agreement.”

The sale of the assets of Glasscock, Inc., closed in or about January 2002; the point at which the transaction closed is hereinafter referred to as “the closing.” Effective as of the closing, Glasscock assigned the certificate for the McGlaughlins’ house to Extermitech and ceased operations.

In May 2002 Extermitech performed a termite inspection of the McGlaughlins’ house. The McGlaughlins allege that the certificate, which included the re-treat warranty, was renewed at that time by them payment of a reinspection fee. The McGlaughlins further allege that, in August 2002, they noticed evidence of termite infestation in the same part of their house as the infestation reported to Glasscock in May 2001.

In March 2003 the McGlaughlins sued Glasscock and Extermitech in the Montgomery Circuit Court, asserting the following claims: count I — fraud; count II— negligence and wantonness; count III— breach of contract; and count IV — breach of warranties. The McGlaughlins’ claims have not yet been adjudicated at trial.

Relying principally on the provision in the purchase contract under which Exter-mitech “assume[d] full responsibility and liability under termite warranties,” Glas-scock filed a cross-claim against Extermi-tech, requesting the following relief:

“[If] the finder of fact determines that [Glasscock is] in any way responsible for any damage to [the McGlaughlins] in the underlying action, Extermitech [should] ... indemnify [Glasscock] for any judgment returned [against Glasscock] in [the McGlaughlins’] cause; [and]
“Extermitech ... should reimburse [Glasscock] for all attorney’s fees incurred to date and in the future in the underlying cause.”

Glasscock filed a motion for a summary judgment on its cross-claim on April 29, 2004. The trial court granted that motion “in its entirety” on October 18, 2004, after considering Glasscock’s submissions on summary judgment, the parties’ briefs, and arguments of counsel. The trial court certified its judgment as final under Rule 54(b), Ala.R.Civ.P.

II. Standard of Review

The well-settled standard of review for a summary judgment was recently stated in Prince v. Poole, 935 So.2d 431 (Ala.2006):

“ ‘This Court’s review of a summary judgment is de novo. We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c) Ala. R. Civ. P. In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce “substantial evidence” as to the existence of a genuine issue of material fact. Ala.Code 1975, § 12-21-12. “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ ”

935 So.2d at 442 (quoting Dow v. Alabama Democratic Party, 897 So.2d 1935, 1038-39 (Ala.2004)) (citations to cases omitted). Further, when reviewing a summary judgment, we consider the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Prowell v. Children’s Hosp. of Alabama, 949 So.2d 117, 126 (Ala.2006). Moreover, we consider questions of law de novo when reviewing a summary judgment. Alabama Elec. Coop., Inc. v. Bailey’s Constr. Co., 950 So.2d 280 (Ala.2006).

III. Discussion

The facts pertinent to Glasscock’s summary-judgment motion are undisputed. Referring to the language in the purchase contract stating that Extermitech “assume[d] full responsibility and liability under termite warranties,” the trial court ordered Extermitech to indemnify Glas-scock for any judgment that may be entered in favor of the McGlaughlins and against Glasscock in the McGlaughlins’ action against Glasscock and Extermitech. Extermitech’s argument on appeal is that the trial court misinterpreted the intended scope of the indemnity provision in the purchase contract when it ordered Exter-mitech to indemnify Glasscock for conduct that occurred before the closing.

The McGlaughlins’ claims arise from alleged acts and omissions in the performance of termite-control services that occurred both before and after the closing. Before the closing, Glasscock issued the certificate, which contained termite warranties for the McGlaughlins’ residence, and performed termite-control service at that residence. Extermitech does not dispute that after the closing it had responsibility to perform the termite-warranty services and obligations contemplated in the certificate Glasscock assigned to Ex-termitech as part of the sale of its assets. Extermitech concedes that it should indemnify Glasscock for claims resulting from Extermitech’s failure, after the closing, to perform obligations in the assigned certificate.

The operative indemnity provision consists of two sentences on pages 2-3 of the purchase contract. In the first sentence, Glasscock agreed “to indemnify and hold harmless [Extermitech] for any and all of its liabilities, accounts payable, or any debt which is secured by any of the inventory, equipment or other assets which are to be transferred at closing.” A fair reading of this sentence would place “all” liability on Glasscock for any claims arising from the performance of termite-control services before the closing. The second sentence states: “However, it is understood that [Extermitech] will assume full responsibility and liability under termite warranties previously issued and transferred to [Ex-termitech] pursuant to this agreement.”

Glasscock argues that, under the above-quoted indemnity provision, the parties intended for Extermitech to assume all known or unknown responsibility and liability for conduct of Glasscock’s relating to the termite warranties that occurred before the closing. Extermitech contends, however, that it never contemplated indemnifying Glasscock for Glasscock’s alleged failure to perform duties under the termite warranties in the assigned certificate or for other conduct by Glasscock that occurred before the closing. Extermitech emphasizes that the second sentence in the indemnity provision does not express an intent on its part to indemnify Glasscock for Glasscock’s failure to perform duties under the termite warranties in the assigned certificate.

The problem is that the purchase contract contains no date specifying when Ex-termitech’s obligation to indemnify Glas-scock becomes effective. On the face of the purchase contract, therefore, the indemnity provision is ambiguous, and each party’s interpretation of that provision is reasonably plausible.

This Court articulated the standards for construing ambiguous contractual provisions in Homes of Legend, Inc. v. McCollough, 776 So.2d 741 (Ala.2000):

“Under general Alabama rules of contract interpretation, the intent of the contracting parties is discerned from the whole of the contract. Where there is no indication that the terms of the contract are used in a special or technical sense, they will be given their ordinary, plain, and natural meaning. If the court determines that the terms are unambiguous (susceptible of only one reasonable meaning), then the court will presume that the parties intended what they stated and will enforce the contract as written. On the other hand, if the court determines that the terms are ambiguous (susceptible of more than one reasonable meaning), then the court must use established rules of contract construction to resolve the ambiguity. See [Voyager Life Ins. Co. v.] Whitson, 703 So.2d [944,] 948 [ (Ala.1997) ]. Under those established rules of contract construction, where there is a choice between a valid construction and an invalid construction the court has a duty to accept the construction that will uphold, rather than destroy, the contract and that will give effect and meaning to all of its terms. See id. at 948-49; Sullivan, Long & Hagerty v. Southern Elec. Generating Co., 667 So.2d 722, 725 (Ala.1995). Additionally, ‘if there exists inconsistency between two clauses of a contract which cannot be reconciled, the inconsistency must be resolved in favor of the prior clause, unless an intention to thereafter qualify is plainly expressed.’ Last, if all other rules of contract construction fail to resolve the ambiguity, then, under the rule of contra proferen-tem, any ambiguity must be construed against the drafter of the contract.”

776 So.2d at 746 (some citations omitted; emphasis added). Here we are confronted with an indemnity provision that does not clearly express whether Extermitech assumed liability for Glasscock’s conduct before the closing.

Some of this Court’s decisions indicate that, once the court determines that a contract is ambiguous, it is for the finder of fact to resolve the ambiguity. See, e.g., McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853, 855 (Ala.1991), and Ex parte Harris, 837 So.2d 283, 290 (Ala.2002). However, as articulated in Alfa Life Insurance Corp. v. Johnson, 822 So.2d 400, 404-05 (Ala.2001), the court, as a matter of law, should apply rules of construction and attempt to resolve any ambiguity in the contract before looking to factual issues to resolve the ambiguity. The process for interpretation of a contract was described in Alfa as follows:

“When a trial court is [faced] with a contract issue, it is important for the trial court to determine as soon as practicable the ‘threshold issue’ whether the contract is ambiguous. If the trial court determines that there is no ambiguity, it must ‘ “determine the force and effect of the terms of the contract as a matter of law.” ’ However, if the trial couH finds the contract to be ambiguous, it ‘must employ established rules of contract construction to resolve the ambiguity.’ Voyager Life Ins. Co. v. Whitson, 703 So.2d 944, 948 (Ala.1997). If the application of such rules is not sufficient to resolve the ambiguity, factual issues arise:
‘If one must go beyond the four corners of the agreement in construing an ambiguous agreement, the surrounding circumstances, including the practical construction put on the language of the agreement by the parties to the agreement, are controlling in resolving the ambiguity.’
“Id. at 949. Where factual issues arise, the resolution of the ambiguity becomes a task for the jury.”

822 So.2d at 404-05 (some citations omitted; emphasis added). See, also, Boykin v. Bank of Mobile, 72 Ala. 262, 269 (1882)(eonstruction of contract is a matter for the court unless extrinsic evidence is considered); Lutz v. Van Heynigen Brokerage Co., 199 Ala. 620, 629, 75 So. 284, 288 (1917); and Vesta Fire Ins. Corp. v. Liberty Nat’l Life Ins. Co., 893 So.2d 395, 404 (Ala.Civ.App.2003) (courts attempt to resolve ambiguities before submitting case to a jury).

Applying the above principles, we examine the four corners of the purchase contract and attempt to reconcile the ambiguity in the indemnity provision in a manner that will give effect to the meaning of all the terms of the purchase contract. Sullivan, Long & Hagerty v. Southern Elec. Generating Co., 667 So.2d 722, 725 (Ala.1995) (court should give effect to all the terms used when attempting to reconcile inconsistent parts of a contract that are “susceptible of reconciliation”).

The two sentences in the indemnity provision conflict if we accept Glasscock’s interpretation that Extermitech assumed responsibility for Glasscock’s pre-closing conduct. A reasonable interpretation of the first sentence is that Glasscock agrees to indemnify Extermitech for “all of [Glas-scock’s] liabilities” up to the closing. This reference to “all of its liabilities” would relate to Glasscock’s pre-closing conduct because, in the ordinary course of business, Glasscock would not incur additional liabilities from termite-control operations after the closing. The sentence immediately following states that Extermitech “will assume full responsibility and liability under termite warranties previously issued and transferred to [Extermitech]” at the closing. Under Glasscock’s interpretation that Extermitech assumed all responsibility for events occurring before the closing, the reference to “liability” assumed in the second sentence also covers Glasscock’s conduct before the closing. When both sentences are considered in that context, the “all of its liabilities” language in the first sentence and “assume full responsibility and liability” clause in the second indicate that Glasscock and Extermitech each have responsibility for liabilities incurred before the closing.

Alternatively, the two sentences in the indemnity provision do not conflict if Ex-termitech’s obligation to indemnify is construed to arise from its conduct after the closing. If the indemnity provision is so construed, the language in the first sentence whereby Glasscock agreed to indemnify Extermitech for “all of [Glasscock’s] liabilities” relates to conduct occurring before the closing, and the language in the second stating that Extermitech ‘“will assume full responsibility and liability” pertains to the period after the closing.

This construction is solidly supported by the following provision on page 1 of the purchase contract:

“This [transaction] is to be a purchase of assets only, and it is understood that [Extermitech] shall not assume any liabilities of [Glasscock].”

Further, as is customary in transactions involving the sale of business assets, it is evident from the face of the purchase contract that the closing was the critical demarcation point for delineating the operational responsibilities of the parties. Before the closing, Glasscock had sole responsibility to perform termite services under the certificates it had issued to its customers. Glasscock reaped the entire financial benefit of performing those services and retained all accounts receivable for that pre-closing work it had performed. At the closing, Extermi-tech paid, and Glasscock received, valuable consideration for the certificates and other assets that were transferred to Ex-termitech. Only after the closing did Extermitech undertake to perform obligations under the termite warranties and only then did it earn financial benefits from servicing customers holding certificates issued by Glasscock.

As the benefits to Extermitech and its obligations under the termite-service certificates arose only at the closing, construing Extermiteeh’s obligations under the indemnity provision to apply prospectively after the closing is consistent with the overall transaction set forth in the purchase contract. Furthermore, this construction is the most reasonable interpretation of the indemnity provision in the absence of any explicit guidance as to whether Extermitech’s agreement to indemnify covered liabilities arising from Glasscock’s pre-closing conduct.

In summary, the interpretation of the purchase contract urged by Glasscock does not resolve the facial conflict in the indemnity provision. However, that ambiguity is reconciled where, as here, we construe the indemnity provision to obligate Extermi-tech to indemnify Glasscock only for Ex-termitech’s performance of or failure to perform obligations under the termite warranties after the closing. Accordingly, we find that the trial court erred to the extent that its summary judgment obligated Ex-termitech to indemnify Glasscock for claims made by the McGlaughlins that arise from Glasscock’s conduct before the closing.

IV. Conclusion

For the reasons stated herein, we reverse the trial court’s summary judgment to the extent it obligated Extermitech to indemnify Glasscock for claims against Glasscock in the underlying action that arise from conduct by Glasscock before the closing. We affirm that judgment to the extent it obligates Extermitech to indemnify Glasscock for claims, if any, against Glasscock in the underlying action that both arise under the termite warranties in the certificate and that result from Exter-mitech’s operations after the closing.

Applying our holdings herein to the specific claims in the underlying action, we conclude that Glasscock is not entitled to indemnity on the McGlaughlins’ fraud claim (count I) or the negligence and wantonness claims (count II). Further, Ex-termitech is not obligated to indemnify Glasscock for any judgments on the McGlaughlins’ breach-of-contraet claim (count III) and breach-of-warranties claim (count IV) that arise from Glasscock’s conduct before the closing. Glasscock is entitled to indemnity from Extermitech for any recovery against Glasscock under the breach-of-contract or breach-of-warranties claims if the McGlaughlins develop and prevail on a cognizable theory of recovery against Glasscock arising from Extermi-tech’s failure to perform obligations under the termite warranties after the closing. This action is remanded to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

LYONS, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

SEE, HARWOOD, and WOODALL, JJ., concur in the result.

      . This case was initially assigned to another Justice on this Court; it was reassigned to Chief Justice Nabers on May 10, 2006.

      . The record does not contain any document reflecting the precise date of the closing. The purchase contract stated that closing would occur on or about November 20, 2001. The first amended complaint reflects that the McGlaughlins were apprised of the transfer of the assets of Glasscock, Inc., by January 2002.

      . The McGlaughlins’ fraud claim alleged that, between 1996 and 2001, the defendants misrepresented (i) that "they were properly inspecting and treating the termites, yet failed to do so," and (ii) that "the house had been properly inspected and treated when in fact, it had not.”

      . The words "indemnify,” “indemnity,” or similar words do not appear in the provision under which Extermitech assumed "full responsibility and liability under termite warranties.” Nonetheless, the parties have characterized the two sentences in the operative provision on pages 2-3 of the purchase contract as "cross-indemnity” clauses. We agree that the assumption-of-liability provision under review here is an indemnification provision.

      . In support of its motion for a summary judgment, Glasscock submitted an affidavit stating that Glasscock would not have sold the assets of Glasscock, Inc., and gotten out of the pest-control business unless Extermitech had assumed complete responsibility for all liabilities arising from Glasscock's pre-closing operations.

      . The trial court did not include findings in its summary-judgment order. Although not expressly stated in that order, statements by the trial court in a hearing on Glasscock's summary-judgment motion indicate that the trial court did not consider the indemnity provision to be ambiguous.

      . Extermitech paid $285,000 for the purchase of Glasscock's assets. The McGlaughlins claim they will incur expenses of $150,000-$175,000 to repair the termite damage to their house.

      . The purchaser of assets of a business generally does not assume the liabilities and debts arising from the seller’s use of those assets and pre-transfer operations. As discussed in Brown v. Economy Baler Co., 599 So.2d 1 (Ala.1992), one of the exceptions to this rule is where " 'there is an express agreement [for the transferee] to assume the obligations of the transferor.’ ” 599 So.2d at 3 (quoting Andrews v. John E. Smith’s Sons Co., 369 So.2d 781, 785 (Ala.1979)) (emphasis added). The parties to a sale of business assets have freedom of contract to enter into agreements under which the purchaser can indemnify the seller for liabilities arising from seller’s pre-transfer operations. Here we resolve the ambiguity in the agreement that purportedly transferred pre-closing liabilities to Extermi-tech against the seller. This result is consistent with the general rule that, absent an "express” understanding, the purchaser of business assets does not assume responsibility for liabilities arising from the seller’s use of assets or its pre-transfer operations.

      .Extermitech makes several additional arguments to support its position that the trial court erred when it ordered Extermitech to indemnify Glasscock for Glasscock's pre-clos-ing conduct. Extermitech argues that an indemnity agreement is not enforceable under Alabama law without a clear expression of intent that the indemnitee be indemnified for its own wrongs. Further, Extermitech argues that an agreement requiring it to indemnify Glasscock for Glasscock's fraud or other intentional acts is void as a matter of public policy. In view of our construction of the indemnity provision, we need not consider these arguments.
      Further, Extermitech asks us to hold that it is not obligated to indemnify Glasscock for any damages the McGlaughlins allegedly might recover for breach of a builder warranty in the certificate. That builder warranty provides that Glasscock, at no cost to the owner, would repair all construction damage caused by active subterranean termites within the one-year builder-warranty period. Although the certificate was issued in 1996 and Extermitech is not responsible for damages caused by Glasscock’s conduct occurring before the closing, the McGlaughlins assert claims of breach of warranty in count IV, and the builder warranty is one of the termite warranties assumed by Extermitech at the closing. We decline to determine the duration of the builder warranty or to hold that it is inapplicable to Extermitech under any set of facts. Whether Glasscock or Extermitech have any obligations to the McGlaughlins under the builder warranty is a matter that initially should be determined in the trial court subject to the interpretation given the purchase contract herein.

      . Extermitech is not obligated under the indemnity provision to reimburse Glasscock for attorney fees incurred by Glasscock with respect to defense of claims in the underlying action that arise from Glasscock’s conduct occurring before the closing.


author: CRAWLEY, Presiding Judge. PITTMAN, Judge,

text:
    S.N.S.D. v. M.D.K. and Lee County Department of Human Resources.
    2050305.
    Court of Civil Appeals of Alabama.
    Aug. 18, 2006.

      Laura Wheeling Farrar of Ezell, Chan-cey, Raiford & Farrar, LLP, Phenix City, for appellant.
    Submitted on appellant’s brief only.
   CRAWLEY, Presiding Judge.

This is a dependency action. The juvenile court failed to inform S.N.S.D. (“the mother”) of her right to counsel during the three proceedings in this action. At the conclusion of the December 13, 2005, proceeding in which the juvenile court ruled that the child at issue would not be returned to the mother, the following colloquy transpired:

“[The Mother]: So I just need to get a lawyer?
“THE COURT: Pardon me?
“[The Mother]: Do I need to get a lawyer?
“THE COURT: That’s up to you on that.”

The juvenile court led the mother to believe that whether she obtained legal counsel was a matter with which the court was not concerned. The court informed her neither that she had a right to be represented by a lawyer nor that if she could not afford a lawyer one would be appointed for her.

The Alabama Legislature has extended the right to counsel to parents in dependency proceedings. See 12-15-63(b), Ala. Code 1975. Furthermore, in Smoke v. State Department of Pensions & Security, 378 So.2d 1149 (Ala.Civ.App.1979), this court stated:

“The right of the parents of the child in a dependency case to be represented by counsel at every stage of the proceeding is a fundamental one protected by statute and court decision. § 12—15— 63, Code of Alabama (1975); Crews v. Houston County Department of Pensions and Security, 358 So.2d 451 (Ala.Civ.App.1978); In re Ward, 351 So.2d 571 (Ala.Civ.App.1977). The statute places upon the court the duty of informing the parents, guardian or custodian of their right to counsel and their right to have counsel appointed where they are unable for financial reasons to retain their own. §§ 12-15-63(b), 65(b), Code of Alabama (1975). A careful review of the record reveals that Smoke was never [apprised] of his right to be represented by counsel at the dependency hearing. Absent an informed waiver of his rights under the statute, the failure of the trial court to inform him of those rights as required by §§ 12-15-63(b), 65(b) was error requiring reversal of the trial court’s order.”

378 So.2d at 1150 (emphasis added).

Based on the foregoing, we reverse the juvenile court’s judgment and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON and MURDOCK, JJ., concur.

BRYAN, J., concurs in the result, without writing.

PITTMAN, J., dissents, with writing.

PITTMAN, Judge,

dissenting.

The main opinion correctly notes that parties to a juvenile proceeding have the right to be represented by counsel, including the right to appointed counsel if they are indigent, and that it is the duty of juvenile courts to give notice of that right. See also Ala.Code 1975, § 12-15-65(c) (providing that parties to cases filed in the juvenile court “shall be advised of their rights under law in their first appearance at intake and before the court” (emphasis added)). That said, however, any error as to that issue in this case was not raised in the juvenile court at any time. Based upon that omission, I conclude that the issue upon which the main opinion reverses the juvenile court’s judgment has not been preserved for appellate review. See Ex parte State ex rel. Ohio, 718 So.2d 669, 671 (Ala.1998) (“Appellate courts will not consider an issue that was not properly raised or pleaded in the trial court.”), and Sea Calm Shipping Co. v. Cooks, 565 So.2d 212, 216 (Ala.1990) (appellate courts “will not hold a trial court to be in error unless that court has been apprised of its alleged error and has been given the opportunity to act thereon”). I therefore respectfully dissent from the judgment of reversal.