text:
    CHILDERSBURG BANCORPORATION, INC. v. PEOPLES STATE BANK OF COMMERCE.
    2040899.
    Court of Civil Appeals of Alabama.
    June 2, 2006.
    Certiorari Denied March 9, 2007 Alabama Supreme Court 1051316.

      Thomas R. Elliott, Jr., Paige Elliott-Pinson, and J. Michael Keel of London Yancey & Elliott, L.L.C., Birmingham, for appellant.
    Richard F. Ogle of Ogle, Liles & Up-shaw, LLP, Birmingham, for appellee.
   CRAWLEY, Presiding Judge.

Childersburg Bancorporation, Inc. (“CBI”), appeals from a summary judgment in favor of Peoples State Bank of Commerce (“Peoples”) on CBI’s counterclaim alleging the breach of a settlement agreement. We reverse the judgment in favor of Peoples and render a judgment in favor of CBI.

In the companion case of Childersburg Bancorporation, Inc. v. Alabama Department of Environmental Management, 893 So.2d 1142 (Ala.2004), Peoples filed a complaint for interpleader, naming CBI and the Alabama Department of Environmental Management (“ADEM”) as parties. Peoples deposited with the court $140,000, the amount in an escrow account established pursuant to a settlement agreement between CBI and Peoples. CBI answered the complaint for interpleader and asserted a counterclaim against Peoples, alleging a breach of the settlement agreement. The trial court ultimately entered a judgment awarding the interpleaded funds to ADEM and made that judgment final pursuant to Rule 54(b), Ala. R. Civ. P. CBI’s counterclaim against Peoples was left pending in the trial court. The trial court entered a summary judgment in favor of Peoples on the counterclaim, and CBI appealed to the Alabama Supreme Court. The supreme court transferred the case to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

Because the procedural history and many of the facts relevant to this appeal are outlined in Childersburg Bancorporation, Inc. v. Alabama Department of Environmental Management, supra, we quote at length from the opinion of the supreme court in that case:

“In 1985, the First National Bank of Childersburg (‘FNBC’) issued an irrevocable letter of credit on behalf of Alabama Plating, Inc. (‘Alabama Plating’), and in favor of ADEM. The letter of credit was intended to provide financial assurance in the event an environmental cleanup at Alabama Plating’s facilities ever became necessary. CBI owned FNBC at the time the letter of credit was issued and at all relevant times until 1999, when it sold FNBC.
“Alabama Plating was to provide additional financial assurance that it could handle any environmental cleanup that became necessary. However, problems arose getting Alabama Plating to provide that assurance, and ADEM ultimately required that a trust agreement be executed; Alabama Plating was the grantor, FNBC the trustee, and ADEM the beneficiary of the trust created by the agreement. The trust was funded by the entire amount pledged in the letter of credit. Following an environmental cleanup of Alabama Plating’s facilities, ADEM attempted several times to access the funds held in the trust to cover a portion of the cleanup costs. However, FNBC maintained that it had neither a valid letter of credit nor a trust agreement with Alabama Plating.
“In 1999, CBI sold FNBC to Marion Lowery and Peoples State Bank of Commerce (‘Peoples’). After FNBC was sold, disputes arose between CBI and FNBC, prompting CBI to file a declaratory-judgment action against FNBC and Lowery. The parties successfully negotiated the dispute and entered into a settlement agreement and release (the ‘settlement agreement’). The settlement agreement specifically addressed the 1985 letter of credit used to fund the trust created by the trust agreement, providing, in pertinent part, as follows:
“ T. The consideration for the settlement is as set forth below:
“ ‘(d) CBI stipulates and agrees that after FNBC has been reimbursed for the $60,000.00 as set out in paragraph 1(c) above that all payments made on the Medac loan shall be placed in an escrow account at FNBC until said escrow account shall reach a total of $140,000.00.
“ ‘(1) Said escrow account shall draw interest semi-annually at the prime rate of interest charged by the Federal Reserve Bank of Atlanta to banks in the state of Alabama.
“ ‘(2) Said escrow funds shall be used exclusively to pay any judgment against FNBC obtained by ADEM enforcing the ADEM letter of credit or to fund payment of any settlement with ADEM of FNBC’s obligations under the ADEM letter of credit.
“ ‘(3) CBI agrees to defend FNBC in any action brought on behalf of ADEM to collect under said letter of credit and to pay all costs and expenses in defense of the same.
“ ‘(4) CBI shall have the full authority in its absolute discretion to defend and/or settle any claim made by ADEM under the ADEM letter of credit.
“ ‘(5) This escrow shall terminate and all funds, including interest earned, held by FNBC shall be paid to CBI two (2) years from the execution of this Settlement Agreement and Release so long as there is no litigation pending related to any claim made by ADEM. In the event such litigation is pending, the escrow shall terminate upon the conclusion of the litigation.’
“The settlement agreement was executed on August 6, 2001; therefore, the two-year window referenced in paragraph 1(d)(5) of the settlement agreement expired on August 6, 2003.
“In May 2003, through its attorney, Peoples contacted ADEM, inquiring as to when ADEM would be making a claim with FNBC for payment pursuant to the trust agreement. Thereafter, Peoples confirmed the existence of the trust agreement in a letter to ADEM. ADEM then once again sought payment from FNBC pursuant to the trust agreement. After ADEM demanded payment of cleanup costs under the trust agreement, FNBC’s attorney wrote CBI’s attorney indicating that FNBC intended to comply with ADEM’s demand. CBI’s attorney responded with a letter stating that, pursuant to the settlement agreement, FNBC had no right to comply with ADEM’s demand.
“On June 20, 2003, Peoples filed a complaint for interpleader, naming CBI and ADEM as parties, and deposited with the court $140,000, the amount placed in an escrow account established pursuant to the settlement agreement. The complaint stated that ADEM had demanded payment pursuant to the letter of credit, which preceded the trust agreement, and that Peoples intended to comply with ADEM’s demand. CBI answered the complaint and asserted a counterclaim against Peoples alleging a breach of the settlement agreement. Thereafter, Peoples moved to be dismissed from the action, but the trial court denied its motion.
“ADEM then moved for a summary judgment, claiming ownership of the in-terpleaded funds. In response, CBI moved for a summary judgment, also claiming ownership of the interpleaded funds. The trial court granted ADEM’s motion and entered a summary judgment in its favor. CBI’s counterclaim against Peoples is still pending. The summary judgment in favor of ADEM was made final pursuant to Rule 54(b), Ala. R. Civ. P. CBI appeals.
“We first note that CBI’s counterclaim against Peoples for breach of the settlement agreement is still pending in the trial court. Therefore, we need not address the issue whether Peoples’s actions in initiating the current litigation or in contacting ADEM amount to a breach of the settlement agreement. The only issue raised on appeal is whether the trial court properly granted ADEM’s motion for a summary judgment.

Childersburg Bancorporation, Inc. v. Alabama Dep’t of Envtl. Mgmt., 893 So.2d at 1143-45. On June 18, 2004, the supreme court affirmed the summary judgment in favor of ADEM in the interpleader proceeding.

On the counterclaim that remained pending in the trial court, the parties filed cross-motions for a summary judgment. On May 10, 2005, the trial court granted Peoples’s motion and denied CBI’s motion. CBI appeals, arguing that the trial court erred by denying its motion and by granting Peoples’s motion because, CBI says, Peoples breached the settlement agreement.

Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[SJubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see § 12-21-12(d), Ala.Code 1975.

In order to be entitled to a summary judgment on a breach-of-contract claim, the movant must present evidence in support of the following elements of his claim: “(1) the existence of a valid contract binding the parties in the action, (2) his own performance under that contract, (3) the defendant’s nonperformance, and (4) damages.” Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala.1995); see also Shelton v. Clements, 834 So.2d 775, 782 (Ala.Civ.App.2002).

In the present case, there is no dispute with respect to the first two elements of a breach-of-contract claim. The parties agree that the settlement agreement is valid and that CBI performed its obligations under the agreement. The parties’ dispute centers upon whether CBI established the third and fourth elements, i.e., that Peoples violated the settlement agreement and that CBI was thereby injured.

The settlement agreement, executed on August 6, 2001, represented the resolution of several disputes that arose between CBI and Peoples after CBI sold First Bank of Childersburg to Peoples in 1999. One of those disputes pertained to Peoples’s claim that, at the time of the sale of FBC, CBI had failed to list on a disclosure form that one of FBC’s liabilities was a 1985 letter of credit issued in favor of ADEM. The settlement agreement states that FBC and Marion E. Lowery claimed a “loss by virtue of CBI’s failure to disclose a letter of credit to ADEM.” In the settlement agreement, CBI consented to have FBC place certain payments (to which CBI would otherwise have been entitled) into an escrow account until a total of $140,000 had been accumulated. CBI further agreed that, during a two-year window— from August 6, 2001, to August 6, 2003— the escrowed payments would “be used exclusively to pay any judgment against FBC obtained' by ADEM enforcing the ADEM letter of credit or to fund payment of any settlement with ADEM of FBC’s obligations under the ADEM letter of credit.” Concomitantly, the parties agreed that if the two-year window closed without ADEM’s having attempted to enforce payment on the letter of credit, then FBC and Peoples would return to CBI the funds in escrow and assume liability for honoring the letter of credit.

The record contains a letter — dated August 20, 1985, and file stamped “Received ADEM Land Division August 26, 1985”— from FBC vice president Ronald E. Webster informing ADEM that FBC had established an irrevocable letter of credit in ADEM’s favor. Webster’s letter stated that the funds represented by the letter of credit were available to ADEM upon presentation of a sight draft. ADEM made two demands for payment on the letter of credit — one on August 27, 1998 (before CBI sold FBC to Peoples), and one on April 3, 2000 (after CBI sold FBC to Peoples). In response to each demand, FBC denied the existence of the letter of credit. After April 2000, ADEM took no further action to compel FBC to honor the letter of credit.

Three years later, in May 2003, Ed Lowery realized that the “two year deadline on returning [to CBI] the $140,000 [in the escrow account] was approaching,” and he authorized counsel for Peoples “to bring the ADEM letter of credit to some resolution.” On May 5, 2003, Peoples’s attorney telephoned ADEM’s attorney, acknowledged the existence of the letter of credit and inquired when ADEM would be making a claim on the letter of credit. The next day, Peoples’s attorney wrote to ADEM’s attorney, explaining the proper procedure for making a claim. The letter stated that ADEM should “send a request to [FBC] for payment of monies held in an escrow account established by the agreement of [FBC] and [CBI].”

On May 20, 2003, ADEM’s attorney wrote a letter to Peoples’s attorney stating, in pertinent part:

“This letter is confirming our telephone conversation of May 5, 2003. I appreciate your admission and acknowledgment of the existence of a trust agreement and letter of credit between Alabama Plating, Inc. and [FBC]. As evidenced by the enclosed correspondence, ADEM has been attempting to collect on this letter of credit for quite some time. As you can see, we have been denied the existence of and access to said funds at each juncture. Please consider this a final request for payment of the monies escrowed in an account established by [FBC] and [CBI], prior to the Department pursuing all other legal options available to it.”

On May 22, 2003, Peoples’s counsel informed CBI’s counsel that it intended to comply with ADEM’s May 20, 2003, demand for payment. On May 29, CBI’s counsel replied:

“Receipt is acknowledged of your May 22, 2003 letter, as well as a copy of the May 20, 2003 letter from ADEM which you referenced.
“I was surprised to have received a copy of the May 20, 2003 letter from ADEM and more particularly surprised by the fact that [FBC] acknowledged the letter of credit to ADEM and impliedly acknowledged liability under the [letter of credit]. This is contrary to the settlement agreement with CBI.
“CBI was obligated under the settlement agreement to defend and indemnify [FB C/Peoples] for loss under the letter of credit. CBI’s position is now, and always has been, that there are valid defenses to the letter of credit. CBI received no notice of any claim by ADEM, and has not authorized any contact by [FBC/Peoples] with ADEM to instigate a claim or conduct negotiations regarding a claim.
“Moreover, there was every expectation that ADEM would not, at this late date, take action to pursue collection of the letter of credit. This was the reason the escrow was set up, i.e., to allow for a reasonable period to see if ADEM would take action. [FBC/Peoples] has, without notice to or consultation with CBI, alerted ADEM to make a claim and rendered the purpose of the escrow meaningless.
“You indicate in your letter that ‘we intend to comply with [ADEM’s] demand.’ This indicates to me that you have already agreed to pay the letter of credit. CBI regards the actions of [FBC/Peoples], as stated above, a breach of the settlement agreement.”

Neither CBI nor Peoples argues that the settlement agreement is ambiguous. In fact, both parties maintain that the agreement is clear and unambiguous. The trial court did not specify the basis for its ruling. In Vesta Fire Insurance Corp. v. Liberty National Life Insurance Co., 893 So.2d 395 (Ala.Civ.App.2003), this court set out the following steps to be employed by a trial court in interpreting a contract:

“Alfa Life Ins. Corp. v. Johnson, 822 So.2d 400 (Ala.2001), provides a thorough explanation of the steps to be employed by the trial court:
“ *When a trial court is found 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.’ ” Cherokee Farms, Inc. [v. Fireman’s Fund Ins. Co.], 526 So.2d [871], 873 [ (Ala.1988) ], quoting Wigington v. Hill-Soberg Co., 396 So.2d 97, 98 (Ala.1981). However, if the trial court 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. McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853 (Ala.1991).’
822 So.2d at 404-05 (emphasis added). In short, a court is to evaluate the contract on its face and apply rules of contract construction in an effort to resolve ambiguities before submitting the case to a jury. See, e.g., Boykin v. Bank of Mobile, 72 Ala. 262, 269 (1882); Lutz v. Van Heynigen Brokerage Co., 199 Ala. 620, 629, 75 So. 284, 288 (1917); Air Conditioning Eng’rs v. Small, 259 Ala. 171, 176, 65 So.2d 698, 703 (1953).
“... As Johnson, supra, makes clear, when the rules of contract construction are sufficient to resolve the ambiguity, the trial court must rule on that basis, without resorting to parol evidence and submitting the case to the jury.”

Vesta Fire Ins. Corp. v. Liberty Nat’l Life Ins. Co., 893 So.2d at 403-04.

We conclude that the trial court determined either that the settlement agreement was not ambiguous or that, if it was ambiguous, the ambiguity could be resolved by employing “established rules of contract construction,” see Voyager Life Ins. Co. v. Whitson, 703 So.2d 944, 948 (Ala.1997) (quoted in Vesta Fire Ins. Corp. v. Liberty Nat’l Life Ins. Co., 893 So.2d at 404). CBI submitted, in opposition to Peoples’s motion for a summary judgment and in support of its own motion for a summary judgment, parol evidence relating to “the practical construction put on the language of the agreement by the parties,” see Voyager Life Ins. Co. v. Whitson, 703 So.2d at 949 (quoted in Vesta Fire Ins. Corp. v. Liberty Nat’l Life Ins. Co., 893 So.2d at 404), and Peoples did not move to strike those submissions, compare Baldwin v. Branch, 888 So.2d 482, 484 (Ala.2004) (trial court granted a motion to strike an affidavit in support of a motion for a summary judgment on the ground that the instrument was not ambiguous and therefore parol evidence was not necessary to its interpretation). Generally, “where evidence violative of the parol evidence rule is admitted without objection, it may be considered and allowed such force and effect as its weight entitles it in construing the agreement of the parties.” Alfa Mut. Ins. Co. v. Northington, 561 So.2d 1041, 1044 (Ala.1990). In reaching our decision in this case, however, we have not considered the unchallenged parol evidence submitted by CBI because we are in accord with what we assume to have been the trial court’s ruling — that any ambiguity in the parties’ settlement agreement can be resolved by employing established rules of contract construction.

The language of a settlement agreement must be construed in a straightforward manner. Oaks v. City of Fairhope, 515 F.Supp. 1004, 1032 (S.D.Ala.1981). “[T]he parties to a contract may prescribe the conditions under which they shall be bound thereby and the words so employed will be given their ordinary and accepted meaning.” Taylor v. Riley, 272 Ala. 690, 693, 133 So.2d 869, 871 (1961).

“ ‘It is well settled under Alabama law that the words of a contract are to be given their ordinary meaning and that the intention of the parties is to be derived, if possible, from the provisions of the contract itself.’ BõWing Office Sys., Inc. v. Johnson, 744 So.2d 915, 918 (Ala.Civ.App.1999). ‘[TJerms should be construed in pari materia and a construction adopted which gives effect to all the terms used.’ Federal Land Bank of New Orleans v. Terra Res., Inc., 373 So.2d 314, 320 (Ala.1979). As noted, courts must use ‘all efforts to reconcile’ contractual provisions. Petty [v. Boothe], 19 Ala. [633] at 640 [ (1851) ]. ‘Inconsistent parts in a contract are to be reconciled, if susceptible of reconciliation .... ’ Sullivan, Long & Hagerty v. Southern Elec. Generating Co., 667 So.2d 722, 725 (Ala.1995).”

Vesta Fire Ins. Corp. v. Liberty Nat’l Life Ins. Co., 893 So.2d at 405. See also Board of Water & Sewer Comm’rs v. Bill Harbert Constr. Co., 870 So.2d 699, 710 (Ala.2003). An appellate court “must presume that the parties intended to make a reasonable contract. Ex parte Agee, 669 So.2d 102 (Ala.1995).” Winkleblack v. Murphy, 811 So.2d 521, 528 (Ala.2001). A contract should not be interpreted in such a way as to invalidate the contract. See Voyager Life Ins. Co. v. Whitson, 703 So.2d at 948 (stating that “[w]ith 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 McCollum v. Atkins, 912 So.2d 1146, 1148 (Ala.Civ.App.2005)(quoting Reynolds v. Massey, 219 Ala. 265, 272, 122 So. 29, 35 (1929)) (“ ‘[W]here there is no dispute as to the terms of a written document, whether it be a deed, will, or contract, though there may be some ambiguity on its face, subjecting it to different constructions, the court will adopt a construction that will sustain it, rather than one that will render it invalid, and in such case the question is one of law for the court, and not one of fact for the jury.’ ”).

CBI argues that paragraph l.(d)(2) of the settlement agreement clearly sets out the conditions under which the parties agreed that CBI would be bound to pay over the funds in the escrow account to ADEM. Paragraph 1.(d)(2) provides:

“Said escrow funds shall be used exclusively to pay any judgment against [FBC] obtained by ADEM enforcing the ADEM letter of credit or to fund payment of any settlement with ADEM of [FBC’s] obligations under the ADEM letter of credit.”

Focusing on the words “judgment against [FBC] obtained by ADEM enforcing the ADEM letter of credit,” CBI contends that paragraph l.(d)(2) contemplates that only an ADEM-initiated legal action against FB C/Peoples, resulting in either a judgment in favor of ADEM or a settlement of ADEM’s claims, would trigger CBI’s obligations to pay ADEM. Accordingly, CBI maintains that, because ADEM had not initiated litigation to recover on the letter of credit by August 6, 2003, two years after the execution of the settlement agreement, Peoples violated the agreement by failing, on August 6, 2003, to return to CBI the funds held in escrow.

CBI contends that the interpleader proceeding filed by Peoples, naming CBI and ADEM as parties and resulting in a judgment awarding ADEM the interpleaded funds, did not trigger CBI’s obligations under the settlement agreement because that proceeding was neither initiated by ADEM nor concluded by a judgment against FBC/Peoples. In addition, CBI insists that Peoples’s filing the interpleader action was, itself, a violation of the settlement agreement. CBI says that Peoples attempted to circumvent its own potential liability under the settlement agreement and to fix a liability upon CBI that the parties had not bargained for when, three months before the two-year escrow window was to close, it contacted ADEM, acknowledged the existence of the letter of credit, prodded ADEM to make a claim on the letter of credit, and when, six weeks before the escrow window was to close, once it was apparent that ADEM was not going to file an action for wrongful dishonor of the letter of credit, it filed a complaint for interpleader.

Peoples argues that the wording of the settlement agreement shows that the parties intended that circumstances other than an ADEM-initiated lawsuit would trigger CBI’s obligation to pay ADEM’s claim on the letter of credit. Peoples insists that the language used in paragraphs l.(d)(2) and l.(d)(5) of the agreement demonstrates that the parties did not intend to make CBI’s obligation solely dependent upon the filing of a lawsuit by ADEM but, Peoples says, indicates that the parties contemplated that any “litigation ... related to [a] claim made by ADEM” would trigger CBI’s obligation.

Specifically, Peoples points out that paragraph l.(d)(2) permits the escrowed funds to be used not only to “pay any judgment ... obtained by ADEM” but also, in the alternative, to “fund payment of any settlement with ADEM” concerning FBC’s obligations under the letter of credit. Under established rules of contract interpretation, we must ask whether the portion of paragraph l.(d)(2) to which Peo-pies refers is reasonably susceptible to the interpretation that Peoples suggests — i.e., that the “fund any settlement” language somehow broadens the “pay any judgment” language to include legal proceedings not initiated by ADEM. We conclude that it is not reasonably susceptible to that interpretation.

Paragraph l.(d)(2), which sets out the purpose for, and limits the use of, the funds in escrow, is the pivotal provision of the agreement, upon which other provisions — specifically, paragraphs l.(d)(3) through l.(d)(5) — depend for their meaning. Paragraph l.(d)(2) contains one sentence. The sentence begins with the words, “[The] escrow funds shall be used exclusively ....,” followed by two infinitive phrases describing how the funds shall be used. The first infinitive phrase is “to pay any judgment against [FBC] obtained by ADEM enforcing the letter of credit.” The second infinitive phrase, connected to the first by the disjunctive “or,” is “to fund payment of any settlement with ADEM of [FBC’s] obligations under the ADEM letter of credit.” It is not a reasonable reading of the sentence to conclude that the “fund any settlement” language in the second infinitive phrase somehow broadens or alters the meaning of the rest of the sentence to include legal proceedings not initiated by ADEM. Reading the sentence as a whole and construing it to give effect to all its terms, it is reasonable to conclude that the parties intended the following: CBI’s obligation to pay over the escrowed funds was expressly conditioned upon an ADEM-initiated legal action against FB C/Peoples to enforce the letter of credit, irrespective of whether that legal action ended in a judgment against FB C/Peoples or in a settlement of ADEM’s claim against FBC/Peoples.

Peoples points out that paragraph 1.(d)(5) does not use the words “judgment against [FBC] obtained by ADEM,” but instead employs the more inclusive phrase “litigation related to [a] claim made by ADEM.” Paragraph l.(d)(5) provides:

“(5) This escrow shall terminate and all funds, including interest earned, held by [FBC] shall be paid to CBI two (2) years from the execution of this Settlement Agreement and Release so long as there is no litigation pending related to any claim made by ADEM. In the event such litigation is pending, the escrow shall terminate upon the conclusion of the litigation.”

Peoples contends that, because the inter-pleader action was “litigation ... related to [a] claim made by ADEM,” it is immaterial that ADEM did not initiate a lawsuit to recover under the letter of credit because, within two years of the execution of the settlement agreement, Peoples commenced an interpleader action and, thus, there was “litigation pending related to [the] claim made by ADEM.” Peoples claims that its failure to deliver the es-crowed funds to CBI on August 6, 2003, was justified under paragraph l.(d)(5) of the settlement agreement, because, Peoples asserts, on that date, “[the interpleader] litigation [was] pending,” the escrow had not terminated, and therefore, Peoples had no duty to return the escrowed funds to CBI.

We hold that the portion of paragraph l.(d)(5) upon which Peoples relies to support the argument that the parties did not intend to make CBI’s obligation solely dependent on the filing of a legal action by ADEM but, instead, contemplated that any “litigation ... related to [a] claim made by ADEM” would trigger CBI’s obligation is not reasonably susceptible to Peoples’s proposed reading for two reasons. First, Peoples’s proposed reading would mean that in paragraph l.(d)(2), CBI undertook an obligation to pay ADEM only if ADEM had initiated legal action against FBC/Peoples, whereas in paragraph l.(d)(5), CBI undertook an obligation to pay ADEM even if ADEM had not initiated legal action against FBC/Peoples, but other litigation relating to ADEM’s claim and commenced by another party was pending. No provision of the settlement agreement should be construed as being in conflict with any other provision unless no other reasonable interpretation is possible. It is this court’s duty to “use ‘all efforts to reconcile’ contractual provisions.” Vesta Fire Ins. Corp. v. Liberty Nat’l Life Ins. Co., 893 So.2d at 405 (quoting Petty v. Boothe, 19 Ala. 633, 640 (1851)). “ ‘Inconsistent parts in a contract are to be reconciled, if susceptible of reconciliation ....’” Vesta Fire Ins. Corp. v. Liberty Nat’l Life Ins. Co., 893 So.2d at 405 (quoting Sullivan, Long & Hagerty v. Southern Elec. Generating Co., 667 So.2d 722, 725 (Ala.1995)).

We conclude that the conflict between paragraphs l.(d)(2) and l.(d)(5) is only apparent and not real. We have already determined that paragraph 1.(d)(2), which describes how the escrowed funds are to be “exclusively used,” is the pivotal provision of the agreement, upon which other provisions — specifically, paragraphs 1.(d)(3) through l.(d)(5) — depend for their meaning. We have also determined that the intent of the parties, as expressed in paragraph l.(d)(2), is as follows: CBI’s obligation to pay over the escrowed funds is expressly conditioned upon an ADEM-initiated legal action against FBC/Peoples to enforce the letter of credit, irrespective of whether that legal proceeding ends in a judgment against FBC/Peoples or in a settlement of ADEM’s claim against FBC/Peoples. Paragraph l.(d)(5) can, therefore, be reconciled with paragraph l.(d)(2) by concluding that the phrase “litigation ... related to [a] claim made by ADEM” in paragraph l.(d)(5) refers to the litigation previously described in paragraph l.(d)(2) — litigation initiated by ADEM in an attempt to enforce its letter of credit against FBC/Peoples.

Second, we conclude that Peoples’s proposed reading of paragraph l.(d)(5) is indefensible because to construe paragraph l.(d)(5) as Peoples suggests would not only fundamentally alter what the clear language of the settlement agreement indicates the parties bargained for, but would also invalidate the contract for lack of consideration. Peoples says that the settlement agreement did not prohibit (and therefore allowed) its acknowledging to ADEM the existence of the letter of credit, its prompting ADEM to make a claim on the letter of credit, and its filing the complaint for interpleader. We recognize that the settlement agreement does not expressly forbid any of the actions that Peoples admits it took immediately before the two-year window closed on CBI’s potential liability — and Peoples assumed potential liability — -for honoring the ADEM letter of credit. We also recognize, however, that “the parties to a contract may prescribe the conditions under which they shall be bound thereby.” Taylor v. Riley, 272 Ala. at 693, 133 So.2d at 871, and we conclude that Peoples’s actions were attempts to circumvent the conditions under which the parties agreed that CBI would be bound to honor the letter of credit issued to ADEM.

Based on the terms of the settlement agreement itself, and disregarding any of the parol evidence that was submitted without objection in this case, it is clear that the parties bargained for shared, time-sensitive responsibility with respect to the potential liability of FBC/Peoples to honor the letter of credit. CBI agreed to be bound, during a two-year period, to defend FBC/Peoples against an ADEM-initiated legal action to collect on the letter of credit, and to indemnify FBC/Peoples for any judgment ADEM might obtain against FBC/Peoples during that period. The parties agreed that, during the two-year window, CBI would have the full authority to settle any claim made by ADEM and, accordingly, that CBI would use the monies in the escrow account to fund such a settlement. Peoples agreed that, if none of the events that would have triggered CBI’s obligations under the terms of the settlement agreement occurred during the two-year window, Peoples would return the funds in escrow to CBI and assume the potential liability represented by the ADEM letter of credit.

Peoples’s argument — that the settlement agreement did not prohibit (and therefore allowed) its acknowledging to ADEM the existence of the letter of credit, its prompting ADEM to make a claim on the letter of credit, and its filing the complaint for interpleader when the two-year window was closing and ADEM had not filed an action for wrongful dishonor of the letter of credit — essentially means that Peoples is claiming that the parties did not bargain for shared, time-sensitive responsibility with respect to their potential liability on the letter of credit Peoples’s argument is equivalent to claiming that the parties intended that Peoples could unilaterally control the conditions under which Peoples would be required to return the escrowed funds to CBI. That argument, if accepted, would not only negate the two-year time limitation undergirding the settlement agreement, but would also invalidate the entire contract by rendering Peoples’s promise — to return the escrowed funds to CBI if the events that would have triggered CBI’s liability did not occur within the two-year window — illusory. See Maccaferri Gabions, Inc. v. Dynateria, Inc., 91 F.3d 1431 (11th Cir.1996).

“Such a ‘promise’... to pay ... under conditions [the promisor] alone controls, would be illusory and would not constitute consideration for [the other party’s] counter-promise to perform. See Pan-Am Tobacco Corp. v. Department of Corrections, 471 So.2d 4, 5 (Fla.1984) (contract is illusory and unenforceable ‘[w]here one party retains for itself the option of fulfilling or declining to fulfill its obligations under the contract’); Restatement (Second) of Contracts §§ 77, 2 cmt. e (promise conditioned on non-mandatory performance of promisor himself is not consideration).”

91 F.3d at 1443.

When faced “[w]ith 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.” Voyager Life Ins. Co. v. Whitson, 703 So.2d at 948. See also Reynolds v. Massey, 219 Ala. at 272, 122 So. at 35; McCollum v. Atkins, 912 So.2d at 1148.

The events that would have triggered CBI’s duty to pay ADEM the funds in escrow under the settlement agreement did not occur. Therefore, the escrow terminated on August 6, 2003, and Peoples breached the settlement agreement when it failed to return the funds to CBI on that date. The trial court erred by denying CBI’s motion for a summary judgment and by granting Peoples’s motion for a summary judgment. Accordingly, we reverse the judgment in favor of Peoples and render a judgment in favor of CBI.

REVERSED AND JUDGMENT RENDERED.

PITTMAN, J., concurs.

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

MURDOCK, J., dissents, without writing.

BRYAN, J., recuses himself.

      "1 Medac, Inc., owed FNBC $749,847.26, of which FNBC had 'participated out' to CBI $331,567.37.”

      . Although the Alabama Supreme Court’s opinion in Childersburg Bancorporation, Inc. v. Alabama Dep’t of Envtl. Mgmt., supra, refers to this entity as "First National Bank of Childersburg” ("FNBC”), the record before us on this appeal refers to the entity as "First Bank of Childersburg.” Unless we are quoting from the supreme court's opinion in the companion case, we will refer to the entity as "FBC.”

      . Marion E. Lowery is listed as a purchaser in the documents effecting the sale of FBC.

      . Based on statements made in the parties' briefs, we assume that "Ed Lowery” is the same individual as "Marion E. Lowery,” a purchaser of FBC referred to earlier. See note 2. The record does not indicate in what capacity Lowery took the actions described in the accompanying text.


source: Caselaw Access Project

author: PITTMAN, Judge. MURDOCK, Judge,

license: Public Domain

text:
    Ann Marie CURRY v. Thomas Walter CURRY, Jr.
    2050477.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2007.

      Thomas J. Azar, Jr., Montgomery, for appellant.
   PITTMAN, Judge.

Ann Marie Curry (“the mother”) appeals from a judgment that, she claims, effectively denied her request for postminority support from Thomas Walter Curry, Jr. (“the father”), for their college-aged child. We dismiss the appeal as untimely.

During the parties’ marriage, they had two daughters. In August 2004, the trial court entered a judgment of divorce that ratified and incorporated a settlement agreement drafted and signed by the parties. In pertinent part, that agreement provided that the mother would have physical custody of the two children and that the father would pay $623.86 in monthly child support.

On September 15, 2004, the mother initiated an action seeking an award of postmi-nority support for the parties’ older daughter, who had been born on September 25, 1985. The father filed an answer and a counterclaim seeking a modification of his child-support obligation and objecting to the request for postminority support. The trial court conducted an ore tenus proceeding on February 25, 2005. Following that proceeding, on June 28, 2005, the trial court entered a judgment modifying the father’s child-support obligation to $366.74 per month because the older child had reached the age of majority. The trial court also calculated the amount of the father’s unpaid child support and reduced the arrearage to a judgment in the amount of $1,973.64, which the trial court ordered the father to pay to the mother in monthly installments of $25. The trial court’s judgment further ordered the father to be responsible for 73% of the older child’s “tuition, books, and board not covered by scholarships, loans and financial aid.”

The father filed a postjudgment motion in which he asserted that the imposition of postminority support created an undue hardship on him because of his lack of financial resources. In addition, the father averred that he should not be expected to pay for a child’s college education when he did not have a college degree and that he should not have to provide postminority support for a child from whom he had been estranged for several years.

Following another ore tenus hearing, the trial court entered an order on September 27, 2005, modifying the June judgment in that the father was specifically relieved from paying any room-and-board costs for the older child that were not connected with on-campus housing. Although the father was still ordered to pay his 73% portion of the older child’s educational expenses, the modified judgment included the following pertinent language:

“The [mother] shall only be entitled to pro rata payment [from the father] for a loan secured for the daughter where the [mother] did not receive a full refund for the amount of the [loan]. That based upon her eligibility for the same, the daughter shall use reasonable efforts to exhaust her options for scholarships, grants, work study, and guaranteed student loans before the parties are required to pay for college tuition, fees, books, and room-and-board.”

On October 20, 2005, the mother filed a motion that she styled a “Motion for Relief from Order” and in which she invoked Rule 60(b), Ala. R. Civ. P., as procedural authority. However, in that motion, the mother simply requested that the trial court “reconsider” its modified judgment because, she says, it appeared to relieve the father from paying any portion of the outstanding loans that had been obtained to pay for the older child’s first year of college during the time that the postminority-support proceeding had been pending. In addition, the mother contested the limitations in the modified judgment that the father need not pay for any off-campus room-and-board expenses and that he should not be responsible to pay for any college educational expenses until all of the daughter’s financial aid had been exhausted.

Although the mother’s October 20, 2005, motion cited Rule 60(b), Ala. R. Civ. P., as authority, “[t]he ‘character of a [motion] is determined and interpreted from its essential substance, and not from its descriptive name or title.’ ” Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d 1281, 1282 (Ala.1996) (quoting Union Springs Tel. Co. v. Green, 285 Ala. 114, 117, 229 So.2d 503, 505 (1969)). The mother’s motion, which was filed within 30 days after the entry of the trial court’s amended judgment and which requested that court to “reconsider” that amended judgment, was, in substance and in legal effect, a motion to alter, amend, or vacate the judgment pursuant to Rule 59(e), Ala. R. Civ. P.:

“It is well settled that [an appellate court] looks to the essence of a motion, not necessarily to its title, to determine how the motion is to be considered under the Alabama Rules of Civil Procedure. Ex parte Alfa Mutual General Ins. Co., [684 So.2d 1281 (Ala.1996)]. [The Alabama Supreme Court] has held on several occasions that a motion filed within the 30-day limitation of Rule 59(e), seeking relief from a judgment that is available under Rule 59(e), should be treated as a Rule 59(e) motion to alter, amend, or vacate the judgment. See Ex parte Alfa Mutual General Ins. Co., supra; Sexton v. Prisock, 495 So.2d 581 (Ala.1986); Holt v. First National Bank of Mobile, 372 So.2d 3 (Ala.1979). See, also, Evans v. Waddell, 689 So.2d 23 (Ala.1997) (noting that [the Alabama Supreme] Court has repeatedly construed a ‘motion to reconsider’ a judgment, when it has been filed within 30 days after the entry of a final judgment, as a Rule 59(e) motion). A Rule 60(b) motion to set aside a judgment cannot be substituted for a Rule 59 motion so as to avoid the operation of Rule 59.1. See Matkin v. Smith, 531 So.2d 876 (Ala.1988); Ingram v. Pollock, 557 So.2d 1199 (Ala.1989). The Court of Civil Appeals has also recognized these principles. See, e.g., Conway v. Housing Authority of the Birmingham District, 676 So.2d 344 (Ala.Civ.App.1996); Ex parte Adams, 534 So.2d 626 (Ala.Civ.App.1988); Simmons v. Simmons, 390 So.2d 622 (Ala.Civ.App.1980).”

Ex parte Johnson, 715 So.2d 783, 785-86 (Ala.1998) (emphasis added). Under Rule 59.1, Ala. R. Civ. P., a postjudgment motion filed pursuant to, among other rules, Rule 59(e) is deemed denied by operation of law 90 days after such a motion is filed unless the parties expressly consent on the record to extend the 90-day period or the appropriate appellate court allows such an extension.

Subsequently, the father’s attorney requested leave to withdraw from the case, and that motion was granted. On December 16, 2005, within 90 days after having filed her previous postjudgment motion (but before the trial court had ruled upon that motion), the mother filed what she labeled a “Renewed Motion for Relief from Order.” Although that motion, like the October 20, 2005, motion, cited Rule 60(b), Ala. R. Civ. P., that motion was essentially a duplicate of the mother’s first postjudgment motion requesting that the court “reconsider” the terms of the modified postminority-sup-port judgment; that motion even bore the words “[respectfully renewed” immediately above counsel’s signature. Under Alabama law, if a party files a postjudgment motion that neither (1) requests relief on grounds different from or additional to the grounds asserted in a previous post-judgment motion so as to amount to a proper amendment to the earlier motion, nor (2) seeks different postjudgment relief so as to be a separate postjudgment motion, the second-filed motion is not due to be treated as a separate motion but as a mere repetitive filing. See Roden v. Roden, 937 So.2d 83, 85 (Ala.Civ.App.2006). Thus, the December 16, 2005, motion did not toll the time for ruling upon the October 20, 2005, motion.

The trial court entered an order purporting to modify the September 2005 postminority-support judgment on February 9, 2006. That date was 112 days after the mother’s initial postjudgment motion had been filed. However, because the mother’s October 20, 2005, motion is properly viewed as a Rule 59(e) motion to alter, amend, or vacate, that motion had already been denied by operation of law on January 18, 2006, 90 days after its filing. See Rule 59.1, Ala. R. Civ. P. Moreover, because the mother’s December 16, 2005, “renewed” motion had no independent character, it did not restart the 90-day clock for granting or denying post-judgment relief, see Roden, 937 So.2d at 85. The mother’s notice of appeal was filed on March 10, 2006, 51 days after her original postjudgment motion was denied by operation of law on January 18, 2006.

Although neither party has raised the issue of whether this court has jurisdiction to decide the mother’s appeal, we have a duty to independently raise and determine that issue: “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’” Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). Under subdivisions (1) and (3) of Rule 4(a), Ala. R.App. P., a notice of appeal must be filed within 42 days after the trial court has acted upon a timely filed postjudgment motion or such a motion has been denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P.

On the basis of the above-cited authorities, we conclude that the operative date for determining the commencement of the 90-day period set forth in Rule 59.1 was October 20, 2005, the date on which the mother first filed her postjudgment motion. Because, as we have stated, the mother’s December 16, 2005, filing did not state new or other grounds for altering, amending, or vacating the September 27, 2005, judgment, and did not seek different relief from the trial court, that filing did not amount to a separate postjudgment motion or an amendment to a post-judgment motion. Roden v. Roden, 937 So.2d at 85. Thus, the mother’s failure to file a notice of appeal within 42 days of the 90th day following the filing of her October 20, 2005, motion renders her appeal untimely and due to be dismissed. Rule 2(a)(1), Ala. R.App. P.

In dismissing the appeal, we note that the trial court’s February 9, 2006, order was entered more than 90 days after October 20, 2005, and, as such, is void. As a result, we direct the trial court to vacate its February 9, 2006, order purporting to further amend the trial court’s judgment. See Roden, 937 So.2d at 86.

APPEAL DISMISSED WITH INSTRUCTIONS.

CRAWLEY, P.J., and BRYAN, J., concur.

MURDOCK, J., concurs in the result, with writing, which THOMPSON, J., joins.

MURDOCK, Judge,

concurring in the result.

Following a citation to Roden v. Roden, 937 So.2d 83, 85 (Ala.Civ.App.2006), the main opinion concludes that the mother’s December 16, 2005, postjudgment motion “did not toll the time for ruling upon the [mother’s] October 20, 2005, motion.” 962 So.2d at 264. Neither the holding in Ro-den, nor any other rule with which I am familiar, however, speaks to a “tollfing] [of] the time for ruling upon [a postjudgment] motion.” Instead, Roden addresses the issue whether a party’s filing of an amendment to, or the filing of a second, Rule 59, Ala. R. Civ. P., postjudgment motion triggers a new 90-day jurisdictional period under Rule 59.1 for the trial court to rule upon that party’s initial postjudgment motion.

As the main opinion correctly notes, the mother’s December 16, 2005, postjudgment motion does not ask the trial court to vacate, alter, or amend its judgment on any ground different from or in addition to those grounds already asserted by the mother in her first postjudgment motion and does not seek any postjudgment relief different from that already requested by the mother in her first motion. Accordingly, it is neither an amendment to the mother’s initial postjudgment motion nor a new postjudgment motion that will trigger a new 90-day jurisdictional period under Rule 59.1. I note also that, even if the mother’s December 16, 2005, postjudgment motion had asserted new or additional grounds, or had requested different relief, it was filed outside the 30-day time period prescribed by Rule 59(e), Ala. R. Civ. P., and, for that reason also, would not have served to trigger a new 90-day jurisdictional period under Rule 59.1. See Roden, supra; compare Thompson v. Keith, 365 So.2d 971, 973 (Ala.1978), with Ex parte Cleveland Consol., Inc., 435 So.2d 1285, 1287 (Ala.1983).

THOMPSON, J., concurs.


author: BRYAN, Judge.

text:
    FIRST BEAT ENTERTAINMENT, L.L.C. v. ECC, L.L.C.
    2050819.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2007.
    Stephen T. Etheredge of Buntin, Ether-edge & Dowling, L.L.C., Dothan, for appellant.

      William L. Lee III and William W. Nichols of Lee & Mclnish Attorneys, P.C., Dothan, for appellee.
   On Application for Rehearing

BRYAN, Judge.

The no-opinion affirmance of December 1, 2006, is withdrawn, and the following is substituted therefor.

First Beat Entertainment, L.L.C. (“First Beat”), appeals a judgment establishing the location of the boundary line between its property and the property owned by ECC, L.L.C. (“ECC”). We affirm.

First Beat owns a rectangular strip of property (“First Beat’s property”) in Section 26, Township 2 North, Range 26 East (“Section 26”) in Houston County. The northern boundary of First Beat’s property abuts a portion of the southern boundary of a parcel of property owned by ECC (“ECC’s property”). Thus, First Beat’s property and ECC’s property share a common boundary line. The parties agree that the legal description of their common boundary line is the south line of the north half of the northeast quarter of Section 26, but they disagree regarding where the south line is physically located on the land. The eastern boundary of First Beat’s property abuts the west right-of-way of U.S. Highway 231 (“the highway”), which runs generally north and south. Thus, the south line, which runs east and west, intersects with the west right-of-way of the highway. At a point south of the intersection of the south line and the west right-of-way of the highway (“the intersection”) the course of the highway’s west right-of-way shifts westward at an angle of approximately 90 degrees. The parties refer to that point as the “jog” in the west right-of-way of the highway. Since at least 1968, surveyors have used the jog as a landmark to assist them in locating the intersection.

First Beat erected a fence (“the fence”) along what it contended was the location of the south line to keep ECC from trespassing on First Beat’s property. Wanting to restore its ability to cross First Beat’s property at will, ECC, in March 2004, sued First Beat, seeking an injunction requiring First Beat to remove the fence. First Beat answered and asserted a counterclaim. In its counterclaim, First Beat alleged that ECC was liable for damages for trespass and was liable for half of the cost of the fence pursuant to § 35-7-3, Ala. Code 1975.

When it first filed its lawsuit, ECC did not contend that the fence was on its property. Consequently, the trial court, holding that a landowner has a right to erect a fence on his property, dismissed ECC’s claim for an injunction requiring First Beat to remove the fence. First Beat’s counterclaim remained pending.

After the dismissal of ECC’s claim but before the adjudication of First Beat’s counterclaim, First Beat moved the trial court to find ECC in contempt of the trial court’s order dismissing ECC’s claim because ECC had allegedly removed a portion of the fence. In response, ECC contended that at least a portion of the fence was on its property. Accordingly, the trial court ordered the parties to each nominate two registered surveyors as candidates for the trial court to consider in selecting a master to assist the trial court in determining where the south line was located in relation to the fence. Both parties listed registered surveyor Rick Kinsaul as one of their two candidates, and the trial court appointed Rick Kinsaul to serve as the master.

In November 2005, Kinsaul completed his survey. According to Kinsaul’s survey, approximately half of the fence was located along the south line, but approximately half was located north of the south line and, therefore, was on ECC’s property.

On April 27, 2006, the trial court held an evidentiary hearing regarding the issue of where the south line was located in relation to the fence. At the hearing, the trial court received the testimony of Kinsaul and three other registered surveyors, John Steensland, Elijah Branton, and Burl Mercer. The trial court also received Kin-saul’s survey, three other surveys, a map, and 11 deeds as evidence.

Kinsaul testified that he determined the location of the south line as follows. He did the field work necessary to physically locate the southwest corner of the northwest quarter of the northeast quarter of Section 26, which is the western terminus of the south line. The location of that corner had been marked previously with an iron pipe. He also did the field work necessary to physically locate the southeast corner of the northeast quarter of the northeast quarter of Section 26, which is the eastern terminus of the south line. That corner had also been marked previously with an iron pipe. He used the location of those two corners to determine the location of the south line, which connects those two corners. He testified that he did not locate the south line by retracing the original government survey of Section 26. However, he verified his placement of the south line by checking his placement mathematically in relation to landmarks described in previous surveys of property in the vicinity of the south line and landmarks described in the legal descriptions of deeds to property situated in the vicinity of the south line.

The jog was one of the landmarks he used to verify the accuracy of his determination of the location of the south line. Kinsaul’s determination of the location of the south line placed the intersection 156.20 feet north of the jog. John Steens-land’s 1980 survey of the property that later became ECC’s property indicated that the intersection was 164.85 feet north of the jog. However, John Steensland’s father, Maurice Steensland, had performed a survey in 1968, and his survey indicated that the intersection was 156 feet north of the jog. Burl Mercer performed several surveys of property in the vicinity of the south line between 1970 and 1990. In those surveys, Mercer indicated that the intersection was 156 feet north of the jog. However, in 1990, Mercer’s surveys of property in the vicinity of the south line began to indicate that the intersection was 165 feet north of the jog instead of 156 feet.

John Steensland testified that retracing the original government survey of the section as described in footnote 2, supra, is the protocol for determining the location of a line subdividing the section. However, Steensland further testified that, because the monuments established by the original government surveys often disappear with the passage of time, modern-day surveyors often must rely on earlier surveys in order to determine the location of a line subdividing the section instead of retracing the original government survey.

Steensland testified that he was uncertain where the south line was located after he performed his 1980 survey, and he remains uncertain today where the south line is located. Consequently, Steensland testified, he could not opine that Kinsaul’s determination of the location of the south line was incorrect.

Elijah Branton, who had surveyed ECC’s property before the lawsuit, testified that Kinsaul’s survey correctly located the south line. He further testified that Kinsaul’s survey was accurate in indicating that the intersection was 156.20 feet north of the jog.

Burl Mercer, who had performed the survey for First Beat that determined the location where First Beat erected the fence, testified that he had surveyed property in the vicinity of the south line a number of times over the last 36 years. Mercer further testified that, for 20 years he had accepted Maurice Steensland’s finding that the intersection was 156 feet north of the jog; however, in 1990, he had determined that the intersection was actually 165 feet north of the jog instead of 156 feet. Mercer opined that Kinsaul’s determination of the location of the south line was incorrect.

Following the hearing, First Beat moved the trial court to strike Kinsaul’s testimony and survey. As grounds, First Beat alleged:

“(1) The testimonies of John Steens-land and Elijah Branton, when coupled with the testimony of Rick Kinsaul, established that Rick Kinsaul did not comply with the established and recognized rules of surveying in establishing the south line of the N 1/2 of the NE 1/4 of Section 26, T2N, R26E, in that he did not locate and reference Section corners in making such determination, and his determination of such line is therefore not trustworthy and should not be relied upon by this Court.
“(2) Both this Court and the parties to this action had the right to assume that Rick Kinsaul would observe and comply with the rules applicable to conducting a survey of the type with which he was entrusted by the Court.”

On May 3, 2006, the trial court entered an interlocutory judgment denying First Beat’s motion to strike Kinsaul’s testimony and survey and determining that Kinsaul’s survey accurately located the south line. The judgment stated:

“The matter before the Court is the establishment of the south line of the N 1/2 of the NE 1/4 of Section 26, T2N, R26E in Houston County, Alabama which determines the exact location of the boundary line between the disputing parties. Pursuant to agreement of the parties the Court appointed Mr. Rick Kinsaul to survey and establish the line in dispute in this case. At the evidentia-ry hearing held on April 27, 2006 the Court received testimony, surveys, deeds and related documents on this issue.
“Upon hearing the testimony and review of the material submitted the Court denies the Motion To Strike the survey and testimony of Rick Kinsaul. Although there were various conflicts in the testimony and surveyor opinions as well as certain inconsistencies in the various deeds over the years with the surveys, the Court finds that the great weight of the evidence supports the location of the line as established in the November 21, 2005 survey of Kinsaul and Associates land surveyors on file in this ease.
“Therefore, the Court finds and orders that the line so established is the location of the south line of the N 1/2 of the NE 1/4 Section 26, T2N, R26E, in Houston County and the boundary line between the properties owned by the parties to this suit.”

Upon the motion of ECC, the trial court, on May 8, 2006, entered an order certifying its May 3, 2006, interlocutory judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. On June 13, 2006, First Beat appealed the May 3, 2006, judgment to the supreme court. The supreme court, pursuant to § 12-2-7(6), Ala.Code 1975, subsequently transferred First Beat’s appeal to this court.

On appeal, First Beat argues that the trial court erred in finding that Kinsaul’s survey accurately depicted where the south line was located because, First Beat says, Kinsaul did not locate the south line by retracing the original government survey of Section 26 as described in footnote 2. In support of this argument, First Beat cites 43 U.S.C. § 752, which states, in pertinent part:

“First. All the corners marked in the surveys returned by the Secretary of the Interior or such agency as he may designate, shall be established as the proper corners of sections, or subdivisions of sections, which they were intended to designate; and the corners of half- and quarter-sections not marked on the surveys shall be placed as nearly as possible equidistant from two corners which stand on the same line.
“Second. The boundary lines, actually run and marked in the surveys returned by the Secretary of the Interior or such agency as he may designate, shall be established as the proper boundary lines of the sections, or subdivisions, for which they were intended, and the length of such lines as returned, shall be held and considered as the true length thereof. And the boundary lines which have not been actually run and marked shall be ascertained, by running straight lines from the established corners to the opposite corresponding corners; but in those portions of the fractional townships where no such opposite corresponding corners have been or can be fixed, the boundary lines shall be ascertained by running from the established corners due north and south or east and west lines, as the case may be, to the watercourse, Indian boundary line, or other external boundary of such fractional township.
Third. Each section or subdivision of section, the contents whereof have been returned by the Secretary of the Interi- or or such agency as he may designate, shall be held and considered as containing the exact quantity expressed in such return; and the half sections and quarter sections, the contents whereof shall not have been thus returned, shall be held and considered as containing the one-half or the one-fourth part, respectively, of the returned contents of the section of which they may make part.”

43 U.S.C. § 752 provides that the corners of a section and any other landmarks within the section established by the original government survey shall be adhered to in the future. However, it does not purport to state that every time a survey is made of a line dividing a quarter of a section into quarters, the original government survey of that section must be retraced. Moreover, First Beat has cited no caselaw holding that 43 U.S.C. § 752 requires such a retracing. The reasonable inference to be drawn from the earlier surveys locating the south line and the iron pipes marking the termini of the south line was that earlier surveyors had located the termini of the south line and its location based on the location of the four corners of Section 26 as established by the original government survey of Section 26.

In the absence of law expressly requiring that Kinsaul retrace the original government survey in order to locate the south line, the issue before the trial court was whether Kinsaul had accurately located the south line. Because the testimony bearing on that issue was in conflict, the trial court was required to evaluate the credibility of the witnesses and determine the weight to be accorded their testimony. Consequently, the ore tenus rule governs our review of the trial court’s judgment. See Ex parte R.E.C., 899 So.2d 272 (Ala.2004). In Ex parte R.E.C., the supreme court stated:

“ ‘The ore tenus rule provides that a trial court’s findings of fact based on oral testimony “have the effect of a jury’s verdict,” and that “[a] judgment, grounded on such findings, is accorded, on appeal, a presumption of correctness which will not be disturbed unless plainly erroneous or manifestly unjust.” Noland Co. v. Southern Dev. Co., 445 So.2d 266, 268 (Ala.1984). “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986).’
“Ex parte Anonymous, 803 So.2d 542, 546 (Ala.2001). ‘The trial court’s judgment in cases where the evidence is heard ore tenus will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’ River Conservancy Co., L.L.C. v. Gulf States Paper Corp., 837 So.2d 801, 806 (Ala.2002). Accord Clark v. Albertville Nursing Home, Inc., 545 So.2d 9, 13 (Ala.1989). ‘In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of the witnesses, and it should accept only that testimony which it considers worthy of belief.’ Clemons v. Clemons, 627 So.2d 431, 434 (Ala.Civ.App.1993).
“ ‘ “Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court. Ex parte Roberts, 796 So.2d 349, 351 (Ala.2001) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996)). ‘When the evidence in a case is in conflict, the trier of fact has to resolve the conflicts in the testimony, and it is not within the province of the appellate court to reweigh the testimony and substitute its own judgment for that of the trier of fact.’ Delbridge v. Civil Serv. Bd. of Tuscaloosa, 481 So.2d 911, 913 (Ala.Civ.App.1985). ‘[A]n appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow.’ Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003) (citations omitted).”

899 So.2d at 279.

Moreover, in the case of judgments establishing the location of a boundary line between coterminous landowners, the ore tenus presumption of correctness “reflects the fact that in boundary-line cases witnesses frequently point to maps and make gestures that are not reflected in the trial record.” M.C. Dixon Family P’ship, LLLP v. Envision Props., LLC, 911 So.2d 711, 714 (Ala.Civ.App.2005) (citing Moss v. Woodrow Reynolds & Son Timber Co., 592 So.2d 1029, 1030 (Ala.1992)).

In the case now before us, the trial court’s finding that Kinsaul’s survey accurately located the south line was supported by Kinsaul’s testimony, Elijah Branton’s testimony, the survey of Maurice Steens-land, several surveys by Burl Mercer, and the legal descriptions in a number of deeds. Therefore, the trial court’s judgment was not so unsupported by the evidence as to be plainly and palpably wrong. Although Burl Mercer’s testimony contradicted the evidence supporting the trial court’s judgment, the trial court could have found that Mercer’s testimony was not credible. See Ex parte R.E.C. Accordingly, the trial court’s judgment is due to be affirmed.

APPLICATION OVERRULED; NO-OPINION AFFIRMANCE OF DECEMBER 1, 2006, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

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

      . Section 35-7-3 states:
      "Partition fences between improved lands are to be erected and repaired at the joint expense of the occupants; or if any person makes a fence a partition fence by joining to or using it as such, he must pay to the person erecting it his proportion of the expense, taking into consideration the condition of such fence at the time it is so joined or used.”

      . Locating the south line by retracing the original government survey of Section 26 would involve (1) performing the field work to determine the location of the four corners of Section 26 established by the original government survey; (2) performing the field work to divide the section into quarters based on the location of the four comers of the section; and (3) performing the field work to divide the northeast quarter of the section into quarters.
      Dividing the section into quarters based on the location of the four corners of the section would involve (1) connecting the four comers of the section with lines; (2) determining the precise midpoint of each of those lines; (3) connecting the midpoints of the north and south section lines with a line; and (4) connecting the midpoints of the east and west section lines with a line. The lines resulting from steps (3) and (4) would divide the section into quarters.
      Dividing the northeast quarter into quarters would involve (1) determining the precise midpoint of each line forming the northeast quarter of the section; (2) connecting the midpoints of the north and south lines of the northeast quarter with a line; and (3) connecting the midpoints of the east and west lines of the northeast quarter with a line. The lines resulting from steps (2) and (3) would divide the northeast quarter into quarters, and the line resulting from step (3) would be the south line.

      . ECC argues 'that First Beat, by calling Kin-saul as a witness and introducing his survey into evidence, waived any error on the part of the trial court in finding that Kinsaul's survey accurately located the south line. This argument may be correct. However, because the issue is unique and First Beat is not entitled to prevail on the merits anyway, we have disposed of First Beat's appeal on its merits rather than on the basis of such a waiver.

      . First Beat did not cite 43 U.S.C. § 752 to the trial court, although it did argue to the trial court that Kinsaul was required to retrace the original government survey in order to locate the south line. ECC argues that this court should not consider First Beat's argument on appeal because it did not cite 43 U.S.C. § 752 to the trial court. This argument may well be correct. However, since First Beat did present to the trial court the argument that Kinsaul should have retraced the original government survey of Section 26 and since First Beat cannot prevail on the merits anyway, we have disposed of First Beat’s appeal on its merits rather than on the basis of First Beat’s failure to cite the statute in the trial court.