text:
    Sammie Lee BROWN, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00376-COA.
    Court of Appeals of Mississippi.
    July 25, 2006.

      Craig Andrew Conway, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before MYERS, P.J., IRVING and CHANDLER, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. On October 4, 2004, Sammie Lee Brown was found guilty of aggravated assault in the Circuit Court of Lauderdale County. On February 10, 2005, the court sentenced Brown to serve fourteen years in the custody of the Mississippi Department of Corrections and to pay a fine of $2,500. On February 15, 2005, the court denied Brown’s motion for a new trial. Aggrieved by the trial court’s ruling, Brown appeals raising the following three issues:

I. WHETHER OR NOT THE TRIAL COURT ERRED IN REFUSING TO GRANT BROWN’S JURY INSTRUCTION FOR THE LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT.
II. WHETHER OR NOT THE COURT ERRED IN GRANTING THE STATE’S MOTION TO AMEND THE INDICTMENT THE DAY OF THE TRIAL AND OVERRULING BROWN’S MOTION TO DISMISS THE INDICTMENT AS IMPROPER.
III. WHETHER OR NOT THE TRIAL COURT ERRED IN NOT DIRECTING A VERDICT ON BEHALF OF BROWN AND IN NOT GRANTING DEFENDANT’S MOTION FOR JNOV AS THE GUILTY VERDICT WAS NOT SUPPORTED BY THE EVIDENCE.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On July 18, 2003, around 9:30 p.m. Retha Clark was walking from the Chevron gas station in downtown Meridian to an apartment complex where her boyfriend lived. As she was approaching the apartment, Clark noticed a man standing on the porch of a building. Clark later learned this man was Sammie Lee Brown. As Clark approached the building, Brown began calling out to her. Brown offered Clark $50 for her to sleep with him. Clark told Brown to leave her alone, and she continued walking. Brown grabbed Clark by the hand, and she swung her arm at him attempting to free herself. Clark attempted to run from Brown, but tripped and fell. While Clark was .on the ground, Brown began kicking her in the stomach. As Clark attempted to get off the ground to run away, Brown hit her in the jaw three times. Clark felt and/or heard a crack with the first punch. Brown left and Clark ran home.

¶4. After Clark returned home, her mother drove her. back to the Chevron station and called the police. Officer Jerome Moore arrived at the Chevron, and he and Clark proceeded back to the location of the incident where Clark identified Brown as her attacker.

¶ 5. Clark was taken to the hospital where surgery was performed on her jaw. Clark remained in the hospital for four days with her jaw wired shut.

¶ 6. The trial began on October 4, 2004, in the Circuit Court of Lauderdale County. Clark and Officer Moore both testified for the State. The defense put on no witnesses, and later that same day the jury found Brown guilty of aggravated assault.

I. WHETHER OR NOT THE TRIAL COURT ERRED IN REFUSING TO GRANT BROWN’S JURY INSTRUCTION FOR THE LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT.

¶ 7. The trial court refused Brown’s request for a simple assault instruction to be given to the jury. The trial court stated that there was no way that Clark’s injuries were non-serious. Brown points out that even Clark’s testimony stated that she fell on her face in an attempt to run away; therefore, she could have broken her jaw by the fall.

¶ 8. This Court reviews jury instructions by reading the instructions as a whole in determining whether the trial court erred in granting or refusing to grant certain instructions. Collins v. State, 691 So.2d 918, 922 (Miss.1997). If the instructions create no injustice, and they fairly announce the law of the case, then no reversible error will be found. Id. at 922.

¶ 9. An instruction for a lesser-included offense may only be given by the trial court when there is an evidentiary basis for that instruction, and such instruction cannot be given based upon speculation. Reddix v. State, 731 So.2d 591, 594(¶ 15) (Miss.1999); see Lee v. State, 469 So.2d 1225 (Miss.1985); Taylor v. State, 763 So.2d 913 (Miss.Ct.App.2000). The facts presented need to support the lesser included offense.

¶ 10. Brown was indicted by the grand jury of the State of Mississippi for aggravated assault/simple assault, in violation of Mississippi Code Annotated section 97-3-7, and his indictment stated, “Sammie Lee Brown ... did recklessly, knowingly or purposely cause serious bodily injury to Retha Clark, by hitting her, and, if not this greater crime, then the lesser crime of Simple Assault,.... ” Mississippi Code Annotated section 97-3-7(1) states that “[a] person is guilty of simple assault if he attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another....” Part (2) of this same section states that “[a] person is guilty of aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.... ” Therefore, the difference between aggravated and simple assault is that simple assault is causing bodily injury and aggravated assault is causing serious bodily injury or showing an extreme indifference to the value of human life. Odom v. State, 767 So.2d 242, 246(¶ 13) (Miss.Ct. App.2000).

¶ 11. In the present case, the only two witnesses who testified were the victim and the officer who was dispatched to the scene of the incident. Clark testified that Brown hit her, knocking her to the ground and that he kicked her in the stomach while she was on the ground. Clark testified that, as a result of Brown’s assault, she sustained a broken jaw which required surgery. Clark also had to stay in the hospital for four days and have her mouth wired shut.

¶ 12. A lesser-included offense instruction should be granted if a reasonable jury could find the defendant not guilty of the principal offense charged in the indictment but could find him guilty of the lesser. Presley v. State, 321 So.2d 309, 310 (Miss.1975). There must be an eviden-tiary basis for a lesser included offense instruction other than mere speculation. Reddix v.- State, 731 So.2d 591, 594(¶ 15) (Miss.1999). The record contains no evidence which supports simple assault. No evidence was presented that .showed Clark’s injuries to be less than serious. The following test has been established to determine whether or not there is an evi-dentiary basis for a lesser included offense: Lesser-included offense instructions should be granted unless the court can say considering all reasonable inferences and taking the evidence in the light most favorable for the accused, that no reasonable jury could find the defendant guilty of a lesser included offense. Graham v. State, 582 So,2d 1014, 1017 (Miss.1991). By following this test the severity and the extensive treatment necessary to repair the injuries, these injuries were serious, and a lessor-included offense instruction is not required. Therefore, this issue is without merit.

II. WHETHER OR NOT THE COURT ERRED IN GRANTING THE STATE’S MOTION TO AMEND THE INDICTMENT THE DAY OF THE TRIAL AND OVERRULING BROWN’S MOTION TO DISMISS THE INDICTMENT AS IMPROPER. ,

¶ 13. Brown argues that it was error to allow the indictment to be amended without the grand jury. Brown was indicted for violating Mississippi Code Annotated § 97-3-7. (Rev.2000) The indictment read in pertinent part, “Sammie Lee Brown ... did recklessly, knowingly, or purposely cause serious bodily injury to Retha Clark. .... ” On the day of the trial the indictment was amended removing the word “recklessly.” The State asserts that the removal of this word did not change the substance of the charge; therefore, it was not error to remove it.

¶ 14. According to the Uniform Rules of Circuit and County Court 7.09, indictments may be amended as to form but not substance. An indictment may be amended at trial if the amendment does not prejudice the defendant .and is immaterial to the merits of the case. Griffin v. State, 584 So.2d 1274, 1276 (Miss.1991). Removing the word “recklessly” did not change the merits of the case. Brown was still charged with aggravated assault. Mississippi Code Annotated section 97-3-7 describes aggravated assault as “serious bodily' injury to another, or causes such injury purposely, knowingly or recklessly....” The word “or” represents that you must not have purposely, knowingly and recklessly, only one of the three is necessary.

¶ 15. If the evidence and the defendant remain unhindered after the indictment amendment then the amendment is considered one of form not substance. Givens v. State, 730 So.2d 81, 87(¶ 20) (Miss.Ct.App.1998). Brown has given us no evidence to prove that the evidence or his defense was changed by this amendment. Therefore, we find no prejudice as a result of this amendment.

¶ 16. Brown also asserts that the indictment was overly broad and defective, because it did not specify the subsection by a “1” or “2” or “a” or “b” as to which section he was indicted for. Whether or not an indictment is fatally flawed to require reversal is a question of law; therefore, this Court has a broad standard of review. Peterson v. State, 671 So.2d 647, 652 (Miss.1996). This Court conducts a de novo review on questions of law. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). The main purpose of the indictment is to notify a defendant of the charges against him so that he may prepare an adequate defense. Evans v. State, 916 So.2d 550, 551(¶ 5) (Miss.Ct.App.2005); see Lewis v. State, 897 So.2d 994, 996(¶ 9) (Miss.Ct.App.2004). The only requirement of the indictment is to provide “a concise and clear statement of the elements of the crimes charged.” Id., quoting Williams v. State, 445 So.2d 798, 804 (Miss.1984). Brown’s indictment did include in the heading “aggravated assault”' and the word “serious”. Furthermore, the indictment actually stated the elements of the crime not only the code number. This issue is meritless.

III. WHETHER OR NOT THE TRIAL COURT ERRED IN NOT DIRECTING A VERDICT ON BEHALF OF BROWN AND IN NOT GRANTING DEFENDANT’S MOTION FOR JNOV AS THE GUILTY VERDICT WAS NOT SUPPORTED BY THE EVIDENCE.

¶ 17. Brown argues that the State failed to prove serious bodily injury which is an element of aggravated assault. He goes further to state that Clark’s testimony was conflicting and contradicting. The State asserts that Brown broke Clark’s jaw which required surgery, a four-day hospital stay and her jaw to be wired shut. Therefore, the State proved serious bodily injury.

¶ 18. The standard of review for deciding whether or not a jury verdict is against the overwhelming weight of the evidence is that this Court must, accept the evidence which supports the verdict as the truth and will reverse only if convinced that the trial court abused its discretion in not granting a new trial. Price v. State, 898 So.2d 641, 652(¶ 26) (Miss.2005). A new trial will not be ordered unless we are convinced that the verdict is so contrary to the overwhelming weight of the evidence, that, to allow the verdict to stand, would be to sanction an unconscionable injustice. Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983). This high standard is necessary because any factual disputes are properly resolved by the jury not by an appeals court. McNeal v. State, 617 So.2d 999, 1009 (Miss.1993).

¶ 19. Clark testified to her injuries and the act itself, and Brown presented no evidence to contradict this. This Court will not overturn the jury’s findings unless the facts are so in favor of the defendant that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty. Glass v. State, 278 So.2d 384, 386 (Miss.1973). “This Court does not have the task of reweighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Langston v. State, 791 So.2d 273, 280(¶ 14) (Miss.Ct.App.2001). We, therefore, find this issue to be without merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FOURTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND A FINE OF $2,500 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

KING, C.J., LEE, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: BOLIN, Justice.

license: Public Domain

text:
    Ex parte Rolfe C. HARPER III. (In re Rolfe C. Harper III v. Brown, Stagner, Richardson, Inc.).
    1041252.
    Supreme Court of Alabama.
    Jan. 20, 2006.

      Paul V. Lagarde, James H. McDonald, Jr., and Robert B. McGinley, Jr., of Alford, Clausen & McDonald, LLC, Mobile, for petitioner.
    Brian M. Clark of Wiggins, Childs, Quinn & Pantazis, LLC, Birmingham, for respondent.
   BOLIN, Justice.

Rolfe C. Harper III petitions this Court for a writ of mandamus ordering the trial court (1) to vacate and set aside its amended order dated May 24, 2005, granting the motion to transfer the case to the Jefferson Circuit Court filed by Brown, Stagner, Richardson, Inc. (“BSR”), and (2) to maintain venue as to this case in the Mobile Circuit Court.

Facts

This dispute arises out of a separate action in the Jefferson Circuit Court styled Brown, Stagner, Richardson, Inc. v. Harper Sales Co. (CV-96-6648). The original dispute concerned a contract BSR entered into with Harper, who was acting on behalf of an entity referred to as Harper Sales Co., Inc. The Jefferson Circuit Court entered a judgment in the amount of $113,115.34 against “Harper Sales Co., Inc.” in the original action.

During the course of postjudgment collection efforts, BSR learned no such entity as “Harper Sales Co., Inc.,” existed. BSR then filed a motion pursuant to Rule 60(b), Ala. R. Civ. P., to add Harper, in his individual capacity, as a defendant in the Jefferson County action. A summary judgment was ultimately entered in favor of BSR and against Harper, individually, in that action. This Court reversed that judgment on the basis that it was improper to amend the complaint to add Harper, individually, as a defendant more than eight months after a final judgment was entered in the case. Harper v. Brown, Stagner, Richardson, Inc., 845 So.2d 777 (Ala.2002).

On February 9, 2001, before BSR sought to amend its complaint in the Jefferson County action to add Harper, in his individual capacity, as a defendant, Harper filed an action in the Mobile Circuit Court seeking a declaration of his rights relating to the judgment that had been entered in the Jefferson County action. In April 2001, BSR filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss in the Mobile Circuit Court, arguing that there was no justiciable controversy and that Harper lacked standing to bring the declaratory-judgment action. The trial court granted the motion; this Court reversed the judgment and remanded the case to the Mobile Circuit Court. Harper v. Brown, Stagner, Richardson, Inc., 873 So.2d 220 (Ala.2003).

On January 4, 2005, BSR filed in the Mobile Circuit Court what it styled as a “renewed” motion to dismiss or for a change of venue from the Mobile Circuit Court to the Jefferson Circuit Court. On January 5, 2005, the Mobile Circuit Court “granted the motion.” On April 19, 2005, BSR’s counsel sent a letter and a proposed amended order requesting that the court amend its January 5, 2005, order to state whether it was in fact dismissing the case or transferring it to the Jefferson Circuit Court. On May 18, 2005, Harper’s counsel filed a motion to stay the physical transfer of the case file to Jefferson County pending the entry of an amended order either dismissing the case or transferring it. On May 24, 2005, the court entered an order clearly transferring the case to the Jefferson Circuit Court. Harper filed this petition for a writ of mandamus on May 25, 2005, requesting that this Court order the Mobile Circuit Court to vacate its amended order transferring the case to the Jefferson Circuit Court and to maintain venue in this case in the Mobile Circuit Court, where, Harper argues, venue is proper.

Standard of Review

This Court has recognized that “[a] petition for the writ of mandamus is the appropriate means by which to challenge a trial court’s order regarding a change of venue.” Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 5 (Ala.2005); see also Ex parte Sauryer, 892 So.2d 898, 901 (Ala.2004). The writ of mandamus is an extraordinary remedy; it will not issue “unless the petitioner shows ‘ “ ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ” ’ ” Ex parte Children’s Hosp., 931 So.2d at 5-6 (quoting Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000), quoting in turn Ex parte Gates, 675 So.2d 371, 374 (Ala.1996)); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala.1999).

Analysis

The threshold issue to be decided is whether Harper’s mandamus petition is timely. “A motion for reconsideration of an interlocutory order does not toll the period for filing a petition for a writ of’ mandamus.” Ex parte Children’s Hosp., 931 So.2d at 6; and Ex parte Troutman Sanders, LLP, 866 So.2d 547 (Ala.2003). Rule 21(a), Ala. R.App. P., provides that “[t]he presumptively reasonable time for filing a [mandamus] petition seeking review of an order of a trial court ... shall be the same as the time for taking an appeal.” Furthermore, “[i]f a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.” Rule 21(a)(3), Ala. R.App. P.

Harper has included in his petition for the writ of mandamus a statement of good cause for this Court to consider his petition. Harper stated that he was confused as to the scope of the trial court’s January 5, 2005, order purporting to deny the motion to dismiss and to grant the motion for the change of venue, and he stated the reasons for his confusion. A review of the record reveals that the trial court did not expressly grant the motion for a change of venue and deny the motion to dismiss the ease until May 24, 2005. Harper petitioned for the writ of mandamus one day after the issuance of the May 24, 2005, order. In addition, this Court does not see how the filing of the instant petition for the writ of mandamus, filed within 42 days of the May 24, 2005, order, but not within 42 days of the January 5, 2005, order, had any negative “ ‘impact on the timely administration of justice in the trial court’ ” in this case. Ex parte Children’s Hosp., 931 So.2d at 6 (quoting Committee Comments to Amendments to Rule 21(a) and 21(e)(4)[, Ala. R.App. P.,] Effective September 1, 2000); and Ex parte Pelham Tank Lines, 898 So.2d 733, 737 (Ala.2004). We therefore conclude that Harper’s mandamus petition is timely.

The second issue this Court must decide is whether the circumstances of this case merit the issuance of a writ of mandamus.

“[I]n order for [an appellate court] to issue a writ of mandamus, there must be credible allegations, ironclad in nature, showing that the trial court is bound by law to do what the petitioner ... requests. Furthermore, a transfer of venue is not authorized except for improper venue. The burden of proving improper venue is on the party raising the issue, and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial court.”

Ex parte State Bd. for Registration of Architects, 574 So.2d 53, 54 (Ala.Civ.App.1990) (citations omitted).

Harper asserts that BSR waived its right to challenge venue in the Mobile Circuit Court when it did not raise that issue in its initial Rule 12(b)(6) motion filed in April 2001.

“ ‘Rule 12(b) ... requires that a claim of “improper venue” be made in the responsive pleading or in a motion filed before the responsive pleading.... If a party fails to raise a Rule 12(b)(3) objection in the first responsive pleading or in a motion filed before that first responsive pleading, the objection is waived.’ ”

Ex parte AAMCO Transmissions, Inc., 897 So.2d 285, 288 (Ala.2004) (quoting Ex parte Till, 595 So.2d 871, 872 (Ala.1992)). This Court finds that BSR waived its right to object to improper venue when it failed to raise this issue in its motion to dismiss filed in April -2001.

We note that BSR’s January 4, 2005, motion to dismiss or for a change of venue included as an alternative ground for a change of venue the doctrine of forum non conveniens. A defendant may move the court for a change of venue based on the doctrine of forum non conve-niens even when this ground is not raised in the initial pleading. See § 6-3-21.1, Ala.Code 1975. However, the trial court did not address this ground for transferring the action in its order; therefore, it is not before this Court for review. We grant the petition and order the Mobile Circuit Court to vacate its order transferring Harper’s declaratory-judgment action to the Jefferson Circuit Court.

PETITION GRANTED; WRIT ISSUED.

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

      . Since the 1998 judgment in that case, numerous appeals have been filed on behalf of Harper Sales and Rolfe Harper, in his individual capacity. See Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190 (Ala.Civ.App.1999); Harper v. Brown, Stagner, Richardson, Inc., 845 So.2d 777 (Ala. 2002); and Harper v. Brown, Stagner, Richardson, Inc., 873 So.2d 220 (Ala.2003).

      . Section 6-3-21.1(b), Ala.Code 1975, provides:
      "The right of a party to move for a change or transfer of venue pursuant to this statute is cumulative and in addition to the rights of a party to move for a change or transfer of venue pursuant to Section 6-3-20, Section 6-3-21 or Alabama Rules of Civil Procedure.”
      This Court notes that the doctrine of forum non conveniens, as codified at § 6-3-21.1, Ala.Code 1975, does not include the timeliness requirement of Rule 82(d), Ala. R. Civ. P., relating to improper venue.


author: HARWOOD, Justice.

text:
    Eddie KELLY, Sr., et al. v. PANTHER CREEK PLANTATION, LLC, et al.
    1041566.
    Supreme Court of Alabama.
    Jan. 20, 2006.

      April England-Albright, Selma, for appellants.
    J. Milton Coxwell, Jr., Monroeville, for appellees.
   HARWOOD, Justice.

Eddie Kelly, Sr., Lenora White, Willie Kelly, Sr., Inez Tellis, Dollie Safford, Hattie Kelly, David Hunter, Jr., Pauline Hunter, Jean Rush Grant, and Johnny Hunter, respectively, own, through inheritance, various parcels of land in Lowndes County, originally owned by Mathew Kelly, John Hunter, and Eugene Coleman. Eddie Kelly, Sr., and the other property owners are the defendants in the declaratory-judgment action from which this appeal lies; for ease of reference, we will refer to the aggregate of the lands they separately own as “the KHC property,” and to them as “the KHC property owners.” Panther Creek Plantation, LLC, Donald Wayne Simmons, and Laura Holman, the plaintiffs below, own a tract of land referred to by the parties and in this opinion as “the Carswell estate.” We will refer to the three appellees as “the Carswell estate owners.”

The Carswell estate owners filed an action against the KHC property owners in the Lowndes Circuit Court seeking a judgment declaring “that they are the owners of a legally ■ enforceable right of ingress and egress on and across [the KHC property]” in the form of an existing access road which the Carswell estate owners and their predecessors in title have been using to reach a public road for more than 60 years. After the KHC property owners answered the complaint denying its essential averments, the Carswell estate owners filed a motion for a summary judgment. They supported their motion with copies of various deeds from the respective chains of title; a current survey depicting the route of the existing access road from the Cars-well estate to the public road across the KHC property; a copy of a map from the Lowndes County tax assessor’s office depicting the layout of the various parcels constituting the KHC property, the public road, the access road, and that portion of the Carswell estate joining the KHC property; and the affidavits of Laura Holman and her uncle, Hoffman Rhyne.

The motion asserted that when B.C. Rhyne, the common grantor of the Cars-well estate to the Carswell estate owners’ respective predecessors in title, purchased the first portion of the Carswell estate in 1939 from Realty Associates of Alabama (“RAA”), the land had no access to a public road. In order to reach a public- road, Rhyne had to travel by an existing roadway across a portion of the land retained by RAA, which is now the KHC property. Rhyne immediately began to do so. In 1941, Rhyne purchased from RAA the additional land now a part of the Carswell estate. It also lacked any access to a public road other than by way of the access road Rhyne had established across the property retained by RAA. The motion further asserted that in 1942 Mathew Kelly, Eugene Coleman, and John Hunter purchased their parcels from RAA, at which time Rhyne was using the existing access road across their property. Rhyne continued to use that access road for more than 60 years.

The KHC property owners filed a response to the motion for a summary judgment, supported by the affidavit of one of the defendants, Eddie Kelly, Sr., a son of Mathew Kelly, an original owner of the KHC property. Much of the focus of that response and the Kelly affidavit was misdirected, as it turned out, because the KHC property owners aimed their rebuttal at what they understood to be an asserted “prescriptive easement.” Focusing on the elements of that type of easement, they sought to establish that the use of the access road by Rhyne and his successors in title subsequent to 1942 had been with the permission of the Kelly family, rather than adverse to them under a claim of right, and that the use had not been exclusive, continuous, and uninterrupted, but instead had been sporadic and sometimes infrequent. Of great pertinence to our analysis, the sixth paragraph of the Kelly affidavit stated: ■

“In addition, the [Carswell estate] is not ‘land locked.’ The property is only ‘locked’ by other property which is or was owned by either Mr. Rhyne or his siblings. Another roadway can be developed directly from the property to a public road without using the road through [the KHC property].”

A hearing was conducted on the Cars-well estate owners’ summary-judgment motion on December 8, 2004. The record does not reflect what transpired at that hearing, but on February 9, 2005, the trial judge issued an order granting the motion, stating that the evidence established that B.C. Rhyne had “obtained an easement by necessity across the lands of the [KHC property owners] prior to the time that the [KHC property owners] acquired title to their lands.” The court concluded that the fact that thereafter the use of the access road might have been with permission and sporadic was immaterial. The KHC property owners moved the court to alter, amend, or vacate its order, and the court conducted a hearing on that motion. On May 4, 2005, the court entered an order denying the motion to alter, amend, or vacate, noting that at the hearing it had conducted on the motion, the KHC property owners had argued that the evidence “did not prove or support the existence of an easement of necessity.” The- court undertook to explain at length its reasoning for entering the summary judgment for the Carswell estate owners and denying the motion to alter, amend, or vacate, as follows:

“Easements may be acquired ‘(1) by express conveyance, (2) by reservation or exception, (3) by implication, (4) by necessity, (5) by prescription, (6) by contract, and (7) by reference by boundaries or maps.’ Helms v. Tullis, 398 So .2d 253, 255 (Ala.1981).
“In Hamby v. Stepleton, 221 Ala. 536, 130 So. 76 [ (1930) ] ..., the Alabama supreme court held as follows regarding easement of necessity:
“ ‘It is a universally established rule that where a tract of land is conveyed which is separated from the highway by other lands of the grantor, or which is surrounded by his lands or by his and those of third persons, there arises by implication in favor of the grantee a way of necessity across the premises of the grantor to the highway. The basis of this right is the presumption of a grant arising from the circumstances of the case. Necessity does not of itself create a right of way, but it is evidence of the grantor’s intention to convey one, and raises an implication of a grant. The presumption, however, is one of fact, and whether or not the grant is to be implied in a given case depends upon the terms of the deed and the facts in that case. Following the general rule above stated, a similar right may be created 'by implied reservation, notwithstanding general covenants in a warranty deed. The underlying principle is that whenever one conveys property, he also conveys whatever is necessary to its beneficial use, coupled with the further consideration that it is for the public good that land should not be unoccupied. The rule differs from the general doctrine of implied easements in that it does not have reference necessarily to existing servi-tudes or quasi easements, and therefore it is unnecessary to consider in connection therewith the question of apparent or nonapparent, continuous or noncontinuous servitudes. Since the right of way is founded on a grant, it can arise only between grantor and grantee.’
“The Kelly affidavit corroborates the affidavits of Hoffman Rhyne and Laura Holman on the issue of whether the plaintiffs’ property touches a public road or not — it does not. In addition, the Kelly affidavit confirms that the [Cars-well estate owners] would have to travel across lands belonging to other land owners in order to reach the public road, if the [KHC property owners] refused ingress and egress to the [Carswell estate owners] over the existing access road they and their predecessors in title have been using since 1939. While the first sentence contains Mr. Kelly’s conclusion that the [Carswell estate] is not ‘land locked,’ he contradicts himself in the second and third sentences of that same paragraph when he states that the [Carswell estate owners] would have to cross lands owned by others in order to reach the public road, if they did not use the current access road. In summary, Kelly’s affidavit does not create a dispute of any material fact concerning the creation of an easement by necessity in 1939 when RAA sold its first parcel of land to Mr. B.C. Rhyne, while retaining ownership of other lands separating Mr. Rhyne’s land from the public road.
“In this case the following material facts were undisputed: (1) There was unity of ownership of the lands in question by RAA in 1939; (2) Mr. B.C. Rhyne (‘Rhyne’) purchased land from RAA in 1939 that did not have public road access; (3) Rhyne began traveling across a portion of RAA’s other lands that lay between Rhyne’s land and the public road in 1939; (4) Rhyne and his successors in title have continuously used the same road to access this property since 1939; and (5) the [KHC property owners’] predecessors in title purchased their lands from RAA in 1942.
“Applying the law to these undisputed facts, makes it clear that RAA, as grant- or, intended to convey to Rhyne, as grantee, a way of necessity across the premises of RAA to the highway. In order for Rhyne to make beneficial use of his property, he had to have to to [sic] get to his property from the public road. The easement by necessity provides Rhyne and his successors in interest with the necessary access from the public road to the subject premises.”

On appeal the KHC property owners have not filed a brief in reply to the appel-lees’ brief filed by the Carswell estate owners.

One argument the KHC property owners make in their initial brief is that the trial court erred in concluding that it was undisputed that the Carswell estate owners did not have access to a public road “because there was no other evidence, except uncertified or unauthenticated maps presented by [the Carswell estate owners] that demonstrated the location of the maps [sic].” (KHC property owners’ brief, p. 21.) Therefore, the KHC property owners argue, the maps should be excluded from consideration and the remaining evidence is insufficient to show without dispute that the Carswell estate owners do not have access to a public road. As the Carswell estate owners point out in their brief, however, the KHC property owners never objected to, moved to strike, or otherwise challenged the admissibility of the “maps” before the trial court and, therefore, they waived any issue of the admissibility of the maps.

It is an established principle of appellate procedure in this State that the trial court can consider otherwise inadmissible evidence submitted in support of, or in opposition to, a motion for a summary judgment if the party against whom the evidence is offered does not object to the evidence by moving to strike it. Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308 (Ala.2001); and Ex parte Diversey Corp., 742 So.2d 1250 (Ala.1999). The only exception to that rule recognized by this Court is that inadmissible evidence cannot be considered if to consider it would cause a “gross miscarriage of justice.” Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d at 313-14; and Ex parte Diversey Corp., 742 So.2d at 1253-54. The KHC property owners have not argued that the trial court’s consideration of the “uncertified or unauthenticated” maps caused a gross miscarriage of justice, and we do not independently perceive such a result. Accordingly, any problem with the admissibility of the maps was waived at the trial court level and, thus, was not preserved for review on appeal.

In otherwise arguing that the Carswell estate owners failed to prove the creation of an easement by necessity, the KHC property owners rely on the proposition that a person is not entitled to an easement by necessity if he has an alternative means of access over his own land. The KHC property owners cite Roberts v. Monroe, 261 Ala. 569, 575, 75 So.2d 492, 497 (1954), which succinctly summarizes this rule as follows:

“ ‘A way of necessity by implied grant when the land sold is separated from the highway by the grantor’s land is discussed in our recent case of Hamby v. Stepleton, [221 Ala. 536] 130 So. 76 [ (1930) ], where the principle is referred to that, “if one has an outlet over his own land, although less convenient he cannot claim a right of way over the premises of another.” 9 R.C.L. 769. And it is said in the case of Hill v. Wing, supra, [193 Ala. 312, 69 So. 445 (1915)]: “If one can get to his property through his own land, he cannot claim a way of necessity through the land of another.... That the way sought. is more convenient than another way already existing is no reason for obtaining it as a way of necessity.” ’ ”

Likewise, the KHC property owners rely on this statement from Ex parte Cater, 772 So.2d 1117, 1119 (Ala.2000):

“The law applicable to private-condemnation proceedings under the statute is well established. As this Court has stated:
“ ‘If one has a way through his own land, he cannot impose a “way of necessity” through his neighbor’s land, unless his own way is not reasonably adequate or its cost is prohibitive. Mere inconvenience or mere cost, as the basis for using another’s land to get access to one’s own property, falls short of meeting this test.’
“Oyler v. Gilliland, 382 So.2d 517, 519 (Ala.1980) (citations omitted).”

As indicated by the opening sentence of the quoted excerpt, Cater did not involve an easement by necessity, or a way of necessity, of the type at issue in the present case but rather the condemnation of a private right-of-way pursuant to. Ala.Code 1975, § 18-3-1, which provides:

“The owner of any tract or body of land, no part of which tract or body of land is adjacent or contiguous to any public road or highway, shall have and may acquire a convenient right-of-way, not exceeding in width 30 feet, over the lands intervening and lying between such tract or body of land and the public road nearest or most convenient thereto. ...”

Arguably, this “law applicable to private-condemnation proceedings under the statute” is not equally applicable to the creation of an easement by necessity, given that Oyler v. Gilliland, 382 So.2d 517 (Ala.1980), upon which Cater relied, in turn relied (among the “citations omitted” noted by Cater in its quotation from Oyler) upon Southern Ry. v. Hall, 267 Ala. 143, 100 So.2d 722 (1957), another statutory private-condemnation case. As explained in Southern Ry.:

“The obvious purpose of the statute is to provide a means whereby a landowner, enclosed on all sides by lands of others and unable to get to his land from a public road or highway, can get relief by condemning a right of way to it across intervening land. However, if such landowner already has a reasonably adequate way to and from his land, there is no field of operation for the statute.”

267 Ala. at 146, 100 So.2d at 724. Nonetheless, the statement of the rule from Roberts, supra, was in relation to an easement by necessity or a way of necessity of the type here at issue, and it clearly stands for the proposition, and logically so, that a grantee is not entitled to an easement by necessity across retained lands of the grantor if the grantee otherwise can get to the highway across his own land, even though that way is less convenient than the way sought by the easement.

Before we consider further whether there existed a genuine issue of material fact under the evidence relating to the establishment of an easement by necessity in connection with the 1939 conveyance of the first portion of the Carswell estate to B.C. Rhyne by RAA, we note that the KHC property owners argue alternatively in their brief:

“Even though the Trial Court in its order did not state that he was granting the [Carswell estate owners] an easement by implication, even applying this standard would not warrant summary judgment. Specifically, to prove entitlement to an easement by implication, a landowner must show that his or her parcel of property had original unity of ownership with the land through which the easement is sought. Helms v. Tullis, 398 So.2d 253, 255 [ (1981) ]. Additionally, the use must be open, visible, continuous, and reasonably necessary to the estate granted. Id. ‘The implication is that the parties implied such an easement because the grantee, having seen the use the grantor made of the property, can reasonably expect a continuance of the former manner of use.’ Helms, 398 So.2d at 255-56.”

(KHC property owners’ brief, pp. 19-20.)

The KHC property owners argue that the Carswell estate owners failed to show that the use of the access road through the KHC property was continuous, given the evidence supplied by the Kelly affidavit suggesting that the “use was sporadic and seasonal.” In Helms v. Tullis, 398 So.2d 253 (1981), this Court distinguished between an easement by necessity and an easement by implication as follows:

“The rationale for allowing an easement by necessity is that public policy demands that land not be rendered unusable .... The burden is on the one seeking to establish the easement to prove the easement is ‘reasonably necessary for the enjoyment’ of the land. Roberts v. Monroe, 261 Ala. 569, 75 So.2d 492 (1954). Easements by necessity almost always involve access roads across the servient tenement connecting the dominant tenement to a public road or highway.... Original unity of ownership of the dominant and servient tenements is always required for an easement by necessity....
“... [An easement created by implication] requires not only original unity of ownership, but also that the use be open, visible, continuous, and reasonably necessary to the estate granted.”

398 So.2d at 255.

Because the trial judge explained clearly that he was recognizing the creation of an easement by necessity, describing its legally required characteristics, we need not consider further the argument that the evidence would not have satisfied the legally required characteristics of an easement by implication, including “continuous” use.

Citing specific pages of Cater, specifically “772 So.2d at 1121-22,” the KHC property owners assert that the Carswell estate owners had the obligation to “show that any other alternative-access route would require unreasonable expense disproportionate to the value of the property,” which, the KHC property owners assert, they failed to do; the KHC property owners point out that the trial court “never discussed this as a requirement.” (KHC property owners’ brief, pp. 17-18.) The portion of Cater on which the KHC property owners rely in this regard, however, was discussing requirements of the right of private condemnation under § 18-3-1. Specifically, the Cater opinion first quoted from the statutory private-condemnation case of Southern Ry. v. Hall, supra, the following statement from State ex rel. Carlson v. Superior Court, 107 Wash. 228, 232, 181 P. 689, 691 (1919):

“ ‘ “So it may be said that, notwithstanding a statute gives a landlocked owner the right to condemn a way of necessity over the lands of a stranger, it is not a favored statute, and the taking will not be tolerated unless the necessity is paramount in the sense that there is no other way out or that the cost is prohibitive, for it must be borne in mind that, after all, this is a condemnation proceeding. We are taking the property of one man and giving it to another.” ’ ”

772 So.2d at 1120-21 (emphasis supplied in Cater).

Following that statement, the Court in Cater continued:

“Thus, under § 18-3-1, a landowner is not entitled to condemn a right-of-way across a neighbor’s intervening land if the landowner has an existing, reasonably adequate means of access to his property, or if he could construct such access without prohibitive expense.”

772 So.2d at 1121.

The KHC property owners have not shown that lack of adequate access is a part of the burden of proof that a landowner seeking to establish the creation of an easement by necessity over the retained lands of the grantor separating the conveyed parcel from a public road at the time the lands are conveyed must satisfy.

Finally, the KHC property owners argue that although the affidavits of Rhyne and Holman stated that the Carswell estate was “landlocked,” Kelly’s affidavit stated that the Carswell estate owners were “only landlocked by their property which adjoined a public road, and that [the Carswell estate owners] could build a road from a public road without going through [the KHC property owners’] road.” (KHC property owners’ brief, p. 18.) We disagree with this construction of the Kelly affidavit. As noted, the pertinent text from the affidavit states:

“In addition, the [Carswell estate] is not ‘landlocked.’ The property is only ‘locked’ by other property which is or was owned by either Mr. Rhyne or his siblings. Another roadway can be developed directly from the property to a public road without using the road through [the KHC property].”

The KHC property owners do not attempt to identify B.C. Rhyne’s “siblings,” and the record is devoid of any suggestion that he had any brothers or sisters. At any rate, the Kelly affidavit does not suggest that there ever existed an access road to the Carswell estate over any property owned by any sibling of B.C. Rhyne, but only that the Carswell estate was “locked” by that property as well as by the property retained by RAA and that “[a]nother roadway can be developed” to a public road without using the existing access road through the KHC property owners’ land. Presumably, Kelly knew, or the KHC property owners could readily have ascertained from the records in the Lowndes County Probate Office, the location and ownership of this “other property,” but no such information is offered. As it stands, Kelly’s affidavit states only that Rhyne or his, siblings, either owned at some time in the past, or now own, “other property” that presumably is adjacent to the Cars-well estate and through which “[ajnother roadway can be developed” to reach a public road.

The critical point in time, however, for purposes of determining whether an easement by necessity was created, was the 1939 conveyance by RAA to Rhyne, and the affidavit leaves it entirely to speculation whether other property currently, or previously, owned by Rhyne or his siblings was owned by him or them at that particular point in time. More detrimental to the KHC property owners’ argument in this regard, however, is the fact that the Kelly affidavit simply states, without selective application, that the “other property” was or is owned “by either Mr. Rhyne or his siblings.” If, as an equally available possibility, the property was owned by Rhyne’s siblings, he would have no right to claim or gain an access right-of-way across their property. Legally, they would simply be “third-parties and strangers” to his ownership of the Carswell estate, and, as noted in Hamby v. Stepleton, 221 Ala. 536, 538, 130 So. 76, 77 (1930), immediately following that portion of its text quoted by the trial judge in his second order, “[n]o way of necessity can be presumed or acquired over the land of a stranger.”

Thus, in the final analysis, the Kelly affidavit simply relies on conclusory allegations and speculation that a particular fact situation might have existed.

“[W]e are ... mindful that ‘[sjummary judgment is not prevented by “concluso-ry allegations” or “speculation” that a fact issue exists. Bare argument or conjecture will not satisfy a [nonmovant’s] burden to offer facts to defeat the motion.’ Riggs v. Bell, 564 So.2d 882, 885 (Ala.1990) (citations omitted). This Court has reiterated this principle frequently since Riggs, citing that case: McGarry v. Flournoy, 624 So.2d 1359, 1361 (Ala.1993); Crowne Invs., Inc. v. Bryant, 638 So.2d 873, 878 (Ala.1994) (‘[M]ere conclusory allegations or speculation that fact issues exist will not defeat a properly supported summary judgment motion, and bare argument or conjecture does not satisfy the nonmov-ing party’s burden to offer facts or to defeat the motion.’); Blackburn v. State Farm Auto. Ins. Co., 652 So.2d 1140, 1142 (Ala.1994); Huff v. United Ins. Co. of America, 674 So.2d 21, 24 (Ala.1995); and Reid v. Jefferson County, 672 So.2d 1285, 1290 (Ala.1995) (‘[the nonmovant’s] statements are conclusory. Thus, those statements do not constitute substantial evidence and, therefore, do not warrant submitting [his] claim to the jury’). This Court has stated: ‘[A party opposing a summary-judgment motion] must present facts, not merely inferences based upon belief, that counter facts offered in support of the motion.’ Davis v. Ford Motor Credit Co., 599 So.2d 1123, 1125 (Ala.1992).”

Brown v. St. Vincent’s Hosp., 899 So.2d 227, 238-39 (Ala.2004).

Once the Carswell estate owners carried their initial burden of showing that there was no genuine issue of material fact and that they were entitled to a judgment as a matter of law, the burden then shifted to the KHC property owners to present substantial evidence creating a genuine issue of material fact. Nelson v. Estate of Frederick, 855 So.2d 1043, 1046 (Ala.2003).

“[T]his Court has stated that ‘ “[e]vi-dence supporting nothing more than speculation, conjecture, or a guess does not rise to the level of substantial evidence.” ’ McGinnis v. Jim Walter Homes, Inc., 800 So.2d 140, 145 (Ala.2001)(quoting Brushwitz v. Ezell, 757 So.2d 423, 432 (Ala.2000)).”

State Farm Fire & Cas. Co. v. Shady Grove Baptist Church, 838 So.2d 1039, 1041 (Ala.2002).

Accordingly, the Kelly affidavit, leaving it completely to speculation, conjecture, or guess whether it was Mr. Rhyne or his unidentified siblings who at some unidentified point in time owned other property that “locked” the Carswell estate, does not constitute substantial evidence sufficient to create a genuine issue of material fact, neutralizing the otherwise unrebutted evidence supplied by the Carswell estate owners that the Carswell estate was completely landlocked when B.C. Rhyne purchased the first portion of it from RAA in 1939, and that additional acreage brought by him from RAA in 1941 was similarly completely landlocked, except for the access road Rhyne was using across those lands retained by RAA that now constitute the KHC property.

Accordingly, the summary judgment is affirmed.

AFFIRMED.

NABERS, C.J., and SEE, STUART, and BOLIN, JJ., concur.


author: SMITH, Justice.

text:
    Ex parte Moses ROBINSON, Jr. (In re Moses Robinson, Jr. v. STATE of Alabama).
    1041381.
    Supreme Court of Alabama.
    Jan. 20, 2006.
    Moses Robinson, Jr., pro se.
   SMITH, Justice.

The petition for the writ of certiorari is denied. See Ex parte Bonner, 926 So.2d 339 (Ala.2005) (holding that where the petitioner alleges that he failed to receive notice of the dismissal of his Rule 32, Ala. R.Crim. P., petition in time to effect a timely appeal therefrom, and the events about which the petitioner complains all occurred before June 1, 2005, the effective date of the amendment to Rule 32 providing a different remedy for obtaining an out-of-time appeal from the dismissal of a Rule 32 petition, a petition for a writ of mandamus is the only appropriate remedy); see also Ex parte V.S., 918 So.2d 908 (Ala.2005).

WRIT DENIED.

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


author: PER CURIAM.

text:
    BFI WASTE SERVICES, L.L.C. v. CIRCLE J ROLL-OFFS, INC.
    2040092.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2005.

      William R. Chandler, Montgomery, for appellant.
    C. Knox McLaney III of McLaney & Associates, P.C., Montgomery, for appel-lee.
   PER CURIAM.

BFI Waste Services, L.L.C. (“BFI”), appeals a judgment of' the trial court enforcing an alleged settlement agreement between BFI and Circle J Roll-Offs, Inc. (“Circle J”). We reverse and remand with instructions.

In December 2001, Circle J sued BFI and two BFI employees, Thalia Wells and Kim Carr, alleging slander and tortious interference with business relationships. Wells and Carr answered, counterclaimed, and filed third-party claims. BFI answered and counterclaimed, alleging that Circle J had intentionally interfered with BFI’s business and contractual relations.

In March 2004, following settlement discussions among the parties, the trial court dismissed the claims against Wells and Carr and the counterclaims and third-party claims made by Wells and Carr, leaving only Circle J and BFI as parties in the action. On June 10, 2004, Circle J filed a motion to compel BFI to respond to discovery requests. Circle J’s ' motion also moved for sanctions to be levied against BFI for failing to comply with the trial court’s discovery orders and for failing to respond to discovery requests. On June 21, 2004, Circle J filed a motion to enforce an alleged settlement agreement between Circle J and BFI. On September 2, 2004, following two hearings on the motions, the trial court entered a judgment enforcing an alleged settlement agreement between Circle J and BFI. The judgment stated, in pertinent part:

“1. ... [T]he attorney for [BFI] admitted in open court on the record that he agreed to settle this litigation by paying [Circle J] $10,000.
“2. ... [T]he settlement was reflected by correspondence between attorneys involved in representing various parties to this litigation....
“3. ... [BFI] failed to provide discovery to [Circle J] despite motions to compel, correspondence and orders of this Court and is thus subject to sanctions by this Court pursuant to Rule 37(b), [Ala. R. Civ. PJ ...
“[T]his Court orders as follows:
“1. That the motion to enforce the agreed to settlement in the amount of $10,000 is granted.
“2. Based on the judgment, BFI’s failure to provide discovery despite being ordered to do so by this Court, is now inconsequential.”

BFI appealed the judgment to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975. Because the trial court did not receive ore tenus evidence, we review the trial court’s judgment without a presumption of correctness. Phillips v. Knight, 559 So.2d 564, 567 (Ala.1990).

On appeal, BFI argues that there was not a valid settlement agreement between itself and Circle J. Section 34-3-21, Ala.Code 1975, provides: “An attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court.” Section 34-3-21 is employed to “review! ] the validity of settlement agreements reached in the trial court.” Ex parte Sims, 627 So.2d 380, 382 (Ala.1993). The record indicates that the attorneys for BFI and Circle J did not execute a written settlement agreement. Although the trial court’s judgment states that a settlement agreement between BFI and Circle J was “reflected by correspondence between attorneys involved in representing various parties to this litigation,” that correspondence reflects only that the claims and counterclaims between Circle J, on the one hand, and Wells and Carr, on the other, were settled. That correspondence only suggests that BFI and Circle J were on the verge of settling their claims against each other and does not constitute a written settlement agreement between those two parties. At issue, therefore, is whether BFI’s attorney, through statements that he made in open court, bound BFI to a settlement agreement “by an entry ... made on the minutes of the court.” § 34-3-21, Ala.Code 1975.

On June 22, 2004, BFI’s attorney and Circle J’s attorney were present at a hearing on Circle J’s motion to compel BFI to respond to discovery requests. During that hearing, the attorneys and the trial judge discussed whether a settlement had previously been reached between BFI and Circle J:

“THE COURT: Did y’all reach a settlement in this case?
“[BFI’S ATTORNEY]: Yes, and I can finish it up if—
“THE COURT: Did you reach a settlement in the case?
“[CIRCLE J’S ATTORNEY]: Yes, we did.
“[BFI’S ATTORNEY]: Judge, a tentative settlement in August [2003]....
“THE COURT: ... Did ya’ll have a settlement?
“[BFI’S ATTORNEY]: Not reduced to writing, Judge.”

On July 12, 2004, the attorneys for BFI and Circle J were again present at a hearing before the trial court. At the hearing, BFI’s attorney stated that BFI and Circle J had previously agreed to a “tentative oral settlement.” BFI’s attorney also stated that certain conditions of the “tentative oral settlement” had never been reduced to writing and that he had “anticipated that there would be a dispute between Circle J and [BFI] regarding the language of one of the conditions.” At the conclusion of the hearing, the trial court concluded that a settlement agreement had been reached between BFI and Circle J.

The record indicates that BFI’s attorney did not make an agreement in open court on behalf of his client BFI at the hearings of June 22 and July 12. Instead, the record indicates that BFI’s attorney stated at the hearings that there had been a previous, out-of-court, “tentative oral settlement” between BFI and Circle J. The acknowledgment by BFI’s attorney of such an agreement did not bind BFI under § 34-3-21; The record reveals that BFI’s attorney and Circle J’s attorney, while in open court, never agreed to settle their claims against each other. The requirements set out in § 34-3-21 were not met in this case, and the trial court erred by enforcing the alleged settlement agreement. As in Phillips, “[t]here is no evidence that the agreement was in writing, [ ] or that the agreement was made in open court or at a pre-trial conference.” 559 So.2d at 568. “[Therefore, ... the trial court erred, as a matter of law, in granting the motion to enforce the settlement agreement.” 559 So.2d at 569.

BFI also argues that the trial court abused its discretion by finding that BFI had failed to provide discovery responses and was thus subject to sanctions. Although the trial court’s judgment states that BFI “is subject to sanctions,” the judgment did not actually impose sanctions. A trial court’s rulings on discovery matters will be reversed only upon a showing of abuse of discretion and substantial harm to the appellant. Wolff v. Colonial Bank, 612 So.2d 1146, 1146 (Ala.1992). BFI fails to show how a judgment merely stating that BFI is “subject to sanctions,” but not actually levying sanctions, is an abuse of discretion or has caused BFI substantial harm. We therefore do not address this argument any further.

We reverse the trial court’s judgment, and we remand the case to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

All the judges concur.


author: CRAWLEY, Presiding Judge.

text:
    Janet BENTON and Henry Allen v. Gina B. KING and Ronald H. Strawbridge.
    2040424.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2005.

      Jonathan A. Brown of Young & Brown, P.C., Vernon, for appellants.
    Ronald H. Strawbridge, Sr., of Straw-bridge, Strawbridge & Strawbridge, L.L.C., Vernon, for appellees.
   CRAWLEY, Presiding Judge.

This appeal concerns the propriety of an attorney-fee award in a partition action. On May 30, 2001, Gina B. King, the owner of a 7/64 interest in approximately 123 acres of real property in Lamar- County, filed a complaint seeking a sale for division and distribution of that property. Three of the 23 named defendants in the original complaint, Janet Benton, Henry Alen, and Jennifer B. Pennington, answered the complaint and asserted a counterclaim, giving notice under § 35-6-100, Aa.Code 1975, that they wished to purchase King’s interest, as well as the interests of the other defendants, in the property. At King’s direction, King’s attorney, Ronald H. Strawbridge, moved to withdraw on July 27, 2001. King then hired another attorney, Tonya G. Johnson, who filed her notice of appearance on October 3, 2001.

On December 6,' 2001, Strawbridge moved to intervene as a plaintiff, under Rule 24, Aa. R. Civ. P., so that he might protect his hen on the purchase price or the appraised value of the property for his unpaid attorney fee. Strawbridge filed an affidavit in support of his motion, wherein he stated that he had spent several months in an effort to determine the names and addresses of the various tenants in common of the property involved. Benton and Alén did not object to Strawbridge’s motion to intervene, and they did not answer his complaint in intervention. The trial court granted Strawbridge’s motion on January 29, 2002, and it ordered that, upon the condition attorney fees were awarded in the action, Strawbridge should receive 50% of the total fees, while 25% of the fees would be distributed to Johnson — King’s new attorney — and 25% of the fees would be distributed to Jonathan Aex Brown, the attorney for Benton, Alen, and Pennington. Benton and Alen did not at that time raise any objections to the trial court’s apportionment of attorney fees.

On July 30, 2002, after the motion to intervene had been granted, King sold her interest in the property to Benton. Benton also purchased the interest of Pennington. King and Pennington both transferred their interests in the property by quitclaim deed.

The case continued, however, and the trial court issued an interlocutory order oh April 23, 2004, noting that the property, owned by 24 people, could not be equitably divided. The trial court also found that Benton and Alen had timely and properly given notice under § 35-6-100, Ala.Code 1975, of their interest to purchase the property at issue. Benton and Allen together held a 7/8 interest in the property, while the 22 other individuals held, in various proportions, the final 1/8 interest.

The trial court ordered that an appraisal of the property be made and submitted to the court. The property was appraised at $203,000. On July 1, 2004, Benton and Allen paid into the trial court $25,375 as the value of the outstanding 1/8 interest being purchased, and they paid an additional $655 as the fee for the appraisal. They also moved the trial court to prepare a deed to them for the remaining 1/8 interest in the property, to set the amount to be paid to each owner, to determine the amount of attorney fees to be awarded, and to tax those fees and other costs among all owners.

Strawbridge wrote a letter, dated November 15, 2004, to the trial court requesting that he be allowed to present testimony regarding his attorney fee. The trial court replied that it was waiting on an agreed-upon order of settlement from the parties. On December 13, 2004, the trial court issued an order stating that the parties had notified the court that the matter was settled on July 1, 2004, but that they had not yet submitted, per the court’s instructions, an agreed-upon order of settlement. The court also paid the overdue appraisal fee at that time from its own funds. On January 7, 2005, the trial court ordered Jonathan Alex Brown, the attorney for Benton and Allen, to appear before the court on January 10, 2005, and to bring all papers and correspondence pertaining to the action. The court also ordered all counsel of record to appear.

Benton and Allen argue in their brief to this court that no hearing took place on January 10, 2005, that the trial court did not receive any evidence regarding attorney fees, and that the trial court simply applied “the traditional” 15% to the total appraised value of the property to determine the amount of the attorney fees awarded. Strawbridge does not specifically deny that no hearing took .place, although he notes in his brief to this court that Brown, the attorney for Benton and Allen, at some point did provide the court with the parties’ agreed-upon settlement terms. Additionally, Strawbridge argues that the full record has not been placed before this court, implying that a hearing did take place. Neither Benton and Allen nor Strawbridge explain what took place when the trial court ordered the parties to appear before the court on January 10, 2005.

Regardless, on January 11, 2005, the day after the attorneys were scheduled to appear before the -trial court, the trial court issued its judgment. In relevant part, the judgment ordered that the attorneys involved in the matter receive the cumulative sum of $30,450, which was 15% of the total appraised value of the property. The trial court further ordered that the attorney fees be distributed pursuant to its January 29, 2002, order, whereby Strawbridge would receive 50%, Brown 25%, and Johnson the remaining 25%. Strawbridge’s portion came to $15,225. Benton and Allen have appealed the trial court’s award of attorney fees to Straw-bridge.

Benton and Allen argue on appeal that the award of attorney fees to Strawbridge was improper because the plaintiff, King, had sold her interest in the property being partitioned before the appraisal and the entry of the court’s judgment. They also argue that, even if an attorney-fee award is appropriate in this case, the trial court abused its discretion by awarding 15% of the total property value traditionally awarded in partition cases without a hearing directed to the factors concerning the reasonableness of an attorney fee established by Peebles v. Miley, 439 So.2d 137 (Ala.1983).

Strawbridge, an appellee, argues: (1) that Benton and Allen did not -preserve for review their issues regarding the sufficiency of the evidence concerning the award of attorney fees because they did not move for a new trial after the trial court’s judgment was entered; (2) that the appeal should be dismissed because the trial court’s judgment incorporated the settlement terms of the parties; (3) that attorney fees are proper when the plaintiff conveys her interest in the property during the pendency of an action; (4) that the trial court did not abuse its discretion in the amount of attorney fees it awarded; and (5) that remanding the cause to the trial court for consideration of the factors set out in Peebles is not proper.

Whether attorney fees may be awarded pursuant to § 34-3-60, Ala.Code 1975, is a question of law; consequently, our review is de novo. See, e.g., Alabama State Bar v. Quinn, 926 So.2d 1018 (Ala. 2005) (stating that an appellate court reviews questions of law de novo).

As to whether a trial court has awarded the proper amount of attorney fees, our supreme court has stated that, “[t]he determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.” Ex parte Edwards, 601 So.2d 82, 85 (Ala.1992).

Strawbridge’s argument that Benton and Allen did not properly preserve the issues they raise on appeal is not applicable in this case. In Ex parte James, 764 So.2d 557, 559 (Ala.1999)(plurality opinion), our supreme court observed that, “[i]n a case tried before a jury, to preserve for appellate review a question of the sufficiency of the evidence, a party must raise that question in a Rule 50(a), Ala. R. Civ. P., motion for a judgment as a matter of law, at the close of all the evidence.” Id. (citing Barnes v. Dale, 530 So.2d 770, 776-77 (Ala.1988)). “This principle does not apply in a nonjury case.” 764 So.2d at 559 (citing Seier v. Peek, 456 So.2d 1079, 1081 (Ala.1984)). In such a situation,

“[wjhen 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.”

Rule 52(b), Ala. R. Civ. P.

The Ex parte James court addressed this rule by noting:

“ ‘Rule 52(b) provides an exemption from the requirement of invoking a ruling by the trial court on the issue of evidentiary insufficiency when written findings of fact are made. The trial court’s ruling on the sufficiency of the evidence is implicit in a [judgment] in which the trial judge is the trier of the facts. Moreover, by making written findings of fact, the trial judge has had the additional opportunity to reconsider the evidence and discover and correct any error in judgment which he or she may have made upon initial review. Thus, when written findings of fact are made, they serve the same useful purpose as does an objection to the trial court’s findings, a motion to amend them, a motion for a new trial, and a motion to dismiss under Rule 41(b), ... — to permit the trial judge an opportunity to carefully review the evidence and to perfect the issues for review on appeal.’ ”

764 So.2d at 559 (quoting Ex parte Vaughn, 495 So.2d 83, 87 (Ala.1986)). Additionally, the court observed that, “when the trial court has made no written findings of fact in a nonjury trial, a party must move for a new trial in order to preserve for review a question relating to the sufficiency or weight of the evidence.” 764 So.2d at 559.

In Ex parte James, the trial court, following a nonjury trial, awarded an attorney fee in the amount of $100,000- to one of the parties. Id. Our supreme court held that although the trial court did not make any specific written findings of fact in its final order awarding an attorney fee in the amount of $100,000, the award was, in and of itself, a finding of fact based on arguments made by both parties at trial. Id. The court concluded that there was, therefore, a written finding of fact that preserved for appeal the issue whether the evidence was sufficient, despite the fact that the appellant failed to file any posttrial motions. Id.

The fact that in this case there is no transcript of testimony on the issue of attorney fees supplied in the record, as there was in Ex parte James, does not mean that the trial court’s judgment cannot be said to be a written finding of fact.

Having concluded that the case is properly presented before this court procedurally, we now address the substantive merits of Benton and Allen’s appeal. As noted above, Benton and Allen argue, in essence, that attorney fees are not authorized by § 34-3-60, Ala.Code 1975, when the interest in the property held by the party bringing the suit is sold while the partition action is pending in court. Benton and Allen cite Owens v. Bolt, 218 Ala. 344, 118 So. 590 (1928), for this proposition. However, the Owens decision was explained and distinguished by another Alabama supreme court decision the following year, Matthews v. Lytle, 220 Ala. 78, 124 So. 197 (1929). The facts in the case at hand more closely mirror the events in Matthews than they do the events in Owens.

In Owens, the plaintiffs sold their interests in the land to the defendants in the case without the consent of their counsel, and a partition sale never took place. 218 Ala. at 345, 118 So. at 591, The plaintiffs’ attorney moved to intervene and to proceed with the partition suit, claimed an attorney’s lien on the lands, and argued that the case should proceed as though no such conveyance took place. 218 Ala. at 345-46, 118 So. at 591. Essentially, the plaintiffs’ attorney wanted the property to be sold for division so that the amount due to him in attorney fees could be ascertained and paid. 218 Ala. at 346, 118 So. at 591. The Owens court held, in part, that because the plaintiffs had sold their interests in the property pending the suit, their attorney consequently did not render any service for the common benefit of the joint owners of the property entitling him to compensation from the sale of the common property under the statutes relevant at the time. 218 Ala. at 346, 118 So. at 592. However, the court also held that the attorney held a lien for his work on the interests in the property his clients formerly owned and that proceedings could be held to enforce that lien. 218 Ala. at 347, 118 So. at 593.

The facts of Owens are distinguishable from the case at hand, partly because the plaintiffs in Owens never completed the partitioning of their property and no court-ordered sale took place. 218 Ala. at 345, 118 So. at 591. Importantly, the following year the supreme court issued an opinion in Matthews v. Lytle, supra, addressing a situation directly comparable to the facts we face in this action. In Matthews, an agreement was reached between parties engaged in a partition suit, which provided a method of dividing the property. 220 Ala. at 79, 124 So. at 198. The trial court entered a judgment incorporating the terms of the agreement, and because the agreement reserved for determination the attorney fees to be awarded, the court ultimately awarded a fee of $1,000 to each of the three attorneys involved. 220 Ala. at 80, 124 So. at 198. The supreme court observed:

“Services for the common good are held to include the following: ‘The preliminary investigation of the title, the preparation of the bill, attending to the issuing of subpoenas, the preparation and entering of decrees, etc.’ Robinson v. Robinson, 24 R.I. 222, 52 A. 992, 993 [(1902)]. Again it is said: ‘Plaintiffs attorneys may have rendered some services in examining the title and preparing such papers as would have been essential to an accurate division of the lands in a friendly suit. Such service benefited the defendant owners as well as the plaintiff, and they may justly be asked to contribute toward paying for them.’ Liles v. Liles, 116 Mo.App.413, 429, 91 S.W. 983, 988 [(1906)].”

Matthews, 220 Ala. at 80, 124 So. at 198. The court went on to hold that, “[i]n effecting a partition or a sale for that purpose, the result is as a matter of law beneficial to all, and the attorney for complainant is due to be compensated out of the common fund for his services in accomplishing it.” 220 Ala. at 80, 124 So. at 199. The court stated that when a plaintiff “in a partition suit defeats the relief prayed for ... by a sale to the other tenants in common ... the attorney cannot recover at all from the common estate, but may recover against the [plaintiff] employing him for services rendered, and to that extent enforce a lien on his separate interest....” 220 Ala. at 80,124 So. at 199.

At first blush this language appears to apply to the case at hand, but Matthews goes on to state that, the matter before the trial court was unusual, because the trial court’s judgment merely carried into effect an agreement of the parties, which left the matter of attorney fees to the court.. Id. The court noted that had the parties not left the matter of attorney fees to the trial court and instead dismissed the case, the attorneys would not be entitled to a fee chargeable to the common property without an agreement to that effect. Id. However, because “the agreement saved for them each respectively the right to fees such as would be compensation for services of common benefit. ... [I]t is apparent that, as finally executed, it was of common benefit.'...” 220 Ala. at 80-81, 124 So. at 199. The supreme court concluded that the facts warranted that a $3,000 fee be divided among the parties, with the attorney for the plaintiff receiving 50% of the fee and the attorneys for the defendants jointly receiving 50% of the fee. 220 Ala. at 81, 124 So. at 199. Such a division is almost exactly what occurred in this case, in which the plaintiff sold her property to one of the defendants and an agreement was entered into by the parties to the action. Furthermore, as in Matthews, the parties in this case requested that the trial court award attorney fees. With the exception that one of the attorneys for King, Straw-bridge, withdrew as King’s attorney before the final division of the property, the situations are virtually identical. However, the withdrawal of Strawbridge is not disposi-tive in this matter, because Strawbridge had already contributed to the common benefit of the parties by, among other things, his preliminary investigation of the titles held by the more than 20 parties to the suit and his preparing and filing the complaint. Such services benefited the defendant owners as well as the plaintiff, and they may justly be asked to contribute toward paying for those services. 220 Ala. at 80,124 So. at 198.

Because the contributions of Straw-bridge were for the common benefit of all the owners of the property, and because the matter of attorney fees was specifically left to the trial court’s discretion by the parties, we hold that the trial court was not wrong under § 34-3-60 in awarding attorney fees to Strawbridge.

Having resolved the issue whether an award of attorney fees is allowed in situations such as this, we now turn to the issue whether the fees awarded in this case are appropriate when the trial court did not conduct any hearing directed to the factors concerning reasonableness established by Peebles v. Miley, supra.

“It has been consistently held that the awarding of attorneys’ fees in partition actions is left to the sound discretion of the trial judge, and, on review, this court will not disturb the award without a showing that the trial judge abused that discretion.” Mann v. Mann, 451 So.2d 783, 785 (Ala.1984)(citing Spiller v. Mackereth, 334 So.2d 859 (Ala.1976); King v. Smith, 247 Ala. 1, 22 So.2d 336 (1945); and Broughton v. Nance, 244 Ala. 499, 14 So.2d 505 (1943)). Furthermore, this court has more recently held that “[w]e recognize that the reasonableness of an award of attorney fees is within the discretion of the trial court and that attorneys should be justly compensated for their efforts rendered for the common benefit of the parties.” Jernigan v. Jernigan, 678 So.2d 1169, 1172 (Ala.Civ.App.1996).

The only party that asked for a hearing on the matter of attorney fees was Straw-bridge, despite the fact that Benton and Allen requested the trial court to set the amount of the attorney fees to be awarded. Benton and Allen also made no objection when Strawbridge intervened. In fact, Benton and Allen admit in their brief to this court that the customary fee awarded in partition actions in the 24th Judicial Circuit, where this case took place, is 15% of the total value of the property.

Although Benton and Allen argue on appeal that applying the traditional attorney-fee award in this case is unreasonable, they did not present any evidence indicating that the trial court’s judgment was in error and they did not cite any authority stating that a 15% fee is per se too high. Importantly, Benton and Allen did not make a request to the trial court to present any evidence regarding the proper amount of attorney fees to be awarded. From the record, it appears that the only party that did request to present any such evidence was Strawbridge, who filed an affidavit when he intervened in the case stating the amount of time he spent on the matter and who later sent a letter to the trial court requesting a hearing.

The supreme court has held in divorce cases “that an award of an attorney fee will not be reversed merely because the record contains no evidence to prove the reasonableness of the amount awarded.” Ex parte James, 764 So.2d at 560 (citing Hodson v. Hodson, 276 Ala. 227, 160 So.2d 637 (1964)). “ ‘There is a presumption that the “trial court has the knowledge from which it may determine the amount of a reasonable fee for an attorney, even though no evidence is presented as to its reasonableness.””’ Ex parte James, 764 So.2d at 560 (quoting Boykin v. Boykin, 628 So.2d 949, 952 (Ala. Civ.App.1993)). In a partition case, this court has observed that “[t]he intimate knowledge of the case by the trial court gave to- that court a special advantage to correctly decide the issue [of attorney fees], and we have no right to disturb that decision.” Guyton v. Guyton, 469 So.2d 640, 642 (Ala.Civ.App.1985).

In Anderson v. Lee, 621 So.2d 1305, 1307 (Ala.1993), our supreme court applied the principles set out in Peebles v. Miley to a partition case:

“Section 34-3-60, Code of Ala.1975, provides for the court to set a reasonable attorney fee in an action to partition real property and to tax the fee as a part of the costs in the action. In Peebles v. Miley, 439 So.2d 137 (Ala.1983), we set out the following 12 criteria that the trial court should consider in setting an attorney fee: (1) the nature and value of the subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the professional experience and reputation of the attorney; (5) the weight of his responsibilities; (6) the measure of success achieved; (7) the reasonable expenses incurred; (8) whether a fee is fixed or contingent; (9) the nature and length of a professional relationship; (10) the fee customarily charged in the locality for similar legal services; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances. See Van Schaack v. AmSouth Bank, N.A, 530 So.2d 740 (Ala.1988); Irons v. Le Sueur, 487 So.2d 1352 (Ala.1986); Talb, Inc. v. Dot Dot Corp., 559 So.2d 1054 (Ala.1990); and Shirley v. Mazzone, 591 So.2d 469 (Ala.1991). -Although all of these criteria need not be met, they are available for the trial court to consider in connection with each claim for an award of attorney fees. Graddick v. First Farmers & Merchants National Bank of Troy, 453 So.2d 1305 (Ala.1984).”

The Anderson court ultimately held that in that case an award of a 10% attorney fee was reasonable. Id. In Anderson, two attorneys testified that a 10% fee, or in that case $20,000, was the customary fee charged in that locality for similar legal services. Id. at 1307. Additionally, the attorney whose feés were at issue “testified that he expended 200 hours on [the] case, extending over a period of three years.” Id.

Although the supreme court recently stated in Carver v. Foster, 928 So.2d 1017, 1026-27 (Ala.2005), that, “the reasonableness of an attorney-fee award [in a partition or sale-for-division case] cannot be based solely on an arbitrary percentage of [the] value” of the property involved, this case is distinguishable on several grounds. For example, in- this case, it appears that Benton and Allen made no objection to Strawbridge’s intervention, filed no answer to his complaint in intervention, did not object to the initial apportionment of attorney fees by the trial court on January 29, 2002, did not request to present evidence regarding attorney fees (though they requested the trial court to award them) and did not file any postjudgment motion regarding the sufficiency of the evidence presented to the trial court following its award of attorney fees. Furthermore, although it appears no evidentiary hearing was conducted, there is evidence in the record that indicates that Strawbridge spent “several months” determining who the owners of the property were. Additionally, Benton and Allen admit in their brief to this court that a 15% attorney fee is traditionally awarded in a partition case in their locality. We can assume that the trial court in this case was aware of the law and the relevant factors to apply in determining the amount of attorney fees to award. Considering that the trial court had a special advantage to correctly decide the issue, that there is a lack of any contrary evidence in the record, and the fact that Benton and Allen appear to have made no effort at the trial court level to present any evidence to that court concerning attorney fees, we cannot decide that the award of attorney fees in the amount of 15% was, in this case, unreasonable.

We affirm the judgment of the trial court.

AFFIRMED.

PITTMAN, J., concurs.

THOMPSON and BRYAN, JJ., concur in the result, without writing.

MURDOCK, J., dissents, without writing.

      . Several original defendants had been dismissed by this time because they were deceased; other defendants had been added when they were discovered to hold an interest in the property.

      . The entirety of those terms does not appear to be in the record.

      . This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

      . King was a plaintiff in the court below, but Strawbridge was the only party to file an appellee’s brief with this court.

      . Furthermore, if we assume that there was no hearing held concerning attorney fees, logically there could not be any transcript of that hearing in the record.


author: PITTMAN, Judge.

text:
    Sandy Renee Guy PATE v. Gregory Gilbert GUY.
    2040214.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2005.

      Elizabeth H. Huntley, Clanton, for appellant.
    Amy Hayes Naylor, Clanton, for appel-lee.
   PITTMAN, Judge.

Sandy Renee' Guy Pate (“the mother”) appeals from a contempt judgment entered by the Chilton Circuit Court in response to her continuing failure to provide Gregory Gilbert Guy (“the father”) his court-ordered visitation with the parties’ children.

The parties have two minor children whose primary physical custody rests with the mother; the father was awarded strictly supervised visitation with the children. Throughout the pendency of the parties’ divorce action, the alternating-weekend visitation exchanges were marked by disruptive confrontations and arguments between the parties and their respective families.

Although the divorce judgment was entered on July 15, 2004, that judgment did not set a date for commencement of supervised visitation. Although the mother filed a timely notice of appeal from the divorce judgment, the trial court denied her motion to stay enforcement of the visitation provisions of the judgment on July 27, 2004. In response to motions filed by the children’s paternal grandparents and the father, the trial court entered an order on Juiy 28, 2004, specifically clarifying that supervised visitation would begin on the weekend of July 30, 2004.

The mother did not deliver the children that weekend in accordance with the court order; thereafter, the father and the paternal grandparents filed motions requesting that the mother be found in contempt for failing to comply with the visitation provisions of the divorce judgment. In addition, both the father and the paternal grandparents sought an award of attorney fees. On August 30, 2004, the trial court determined that the mother would be incarcerated for one day because of “her direct criminal contempt of this court’s [visitation] order.” In addition, the trial court ordered the mother to pay $6,000 in attorney fees to defray the father’s and the paternal grandparents’ legal costs in the postdivorce litigation. The mother filed a timely appeal from the award of attorney fees.

The mother’s sole allegation of error is the trial court’s award of an attorney fee to the father and the paternal grandparents. Before we address whether the attorney-fee award was proper in this case, we review the difference between civil contempt and criminal contempt. In general, civil contempt seeks to compel compliance with a trial court’s judgment or order, while criminal contempt imposes punishment for failure to obey a judgment or order of the court. Rule 70A, Ala. R. Civ. P.; see also State v. Thomas, 550 So.2d 1067, 1072 (Ala.1989). An essential element of a finding of criminal contempt is that such a finding is intended to punish the contemnor, while a finding of civil contempt seeks to compel future compliance with court orders. See generally Chestang v. Chestang, 769 So.2d 294 (Ala.2000). Sanctions for criminal contempt are limited by statute to a maximum fíne of $100 and imprisonment not to exceed five days. See Ala.Code 1975, § 12-11-30(5). On the other hand, sanctions for civil contempt may exceed those limits and may continue indefinitely until the contemnor performs as ordered.

In this case, the trial court determined that the mother was in contempt of court for her failure to follow the visitation provisions in the divorce judgment; the trial court then ordered her to be incarcerated for 24 hours. In Chestang v. Chestang, supra, our Supreme Court reviewed the provisions of Rule 70(A), Ala. R. Civ. P., the rule that governs contempt in civil cases. The Supreme Court noted that Rule 70A(a)(2)(C) defines two types of criminal contempt: (1) misconduct that obstructs the administration of justice and (2)willful disobedience or resistance to a court order or judgment “ ‘where the dominant purpose of the finding of contempt is to punish the contemnor.’ ” Chestang, 769 So.2d at 297-98. Concluding that the trial court’s judgment in Chestang was not designed to punish the contemnor but that it was instead designed to compel compliance on the part of the contemnor, our Supreme Court affirmed the award of an attorney fee in that contempt case.

The record in this case reveals that the mother had consistently stymied earlier court efforts to institute reasonable paternal visitation with the parties’ children. Throughout the pendency of the divorce proceedings, the mother failed to follow pendente lite visitation instructions. By the time of the August 2004 contempt hearing, the trial court had set a strictly supervised visitation schedule as part of the divorce judgment, but the mother had refused to comply with that schedule. In an attempt to impress upon the mother the importance of following the visitation provisions in the divorce judgment, the trial court found the mother in contempt and sentenced her to 24 hours in jail. This is the very essence of criminal contempt. See Rule 70A, Ala. R. Civ. P., and Chestang, supra.

The father asserts that this court has previously allowed a trial court to enter a contempt judgment and to award an attorney fee to a “prevailing” party, citing Wilson v. Freeman, 402 So.2d 1004 (AIa.Civ.App.1981); he also invokes Ala.Code 1975, § 30-2-54. The father’s reliance on those authorities is misplaced. Wilson involved an appeal from a denial of a child-custody-modifieation petition in which the appellant challenged the trial court’s requirement that the supporting spouse pay, during the pendency of the appeal, delinquent child support and an attorney-fee award. It is important to note that the payor spouse in Wilson did not appeal from the actual award of attorney fees in that case.

In addition, we note that the legislature enacted § 30-2-54, Ala.Code 1975, to allow an attorney-fee award to a prevailing party in actions for divorce or to recover unpaid child-support, alimony, or maintenance awards. The pertinent “action” in this case concerned child visitation, not support, and § 30-2-54, Ala. Code 1975, thus does not apply.

The judgment in this ease clearly indicates that the mother was to be incarcerated for failing to comply with the court-ordered visitation schedule. Our Supreme Court has determined that although an award of attorney fees in a criminal-contempt proceeding is improper, such an award does not render the contempt judgment void. See, e.g., Ex parte J.R.W., 667 So.2d 88 (Ala.1995). That portion of the trial court’s judgment purporting to award an attorney fee “ ‘must be considered as mere surplusage and severed from the judgment.’ ” Ex parte Collins, 860 So.2d 1259, 1260 (Ala.2003) (quoting State ex rel. Payne v. Empire Life Ins. Co. of America, 351 So.2d 538, 545 (Ala.1977)). Based on those established precedents, we reverse the trial court’s award of $6,000 in attorney fees to the father and the paternal grandparents.

The father’s request for an attorney-fee award on appeal is denied.

REVERSED AND REMANDED.

CRAWLEY, P.J., and THOMPSON, MURDOCK, and BRYAN, JJ„ concur.

      . The paternal grandparents had filed a petition in the trial court seeking visitation pursuant to § 30-3-4.1, Ala.Code 1975. The divorce judgment awarded supervised visitation to the father.

      . We note that the mother does not challenge the contempt judgment itself; she only contests the attorney-fee award.