author: THOMPSON, Judge.

text:
    Kenneth J. SEXTON v. Laniece SEXTON.
    2040910.
    Court of Civil Appeals of Alabama.
    Jan. 6, 2006.

      Parker C. Johnston, Millbrook, for appellant.
    J. Myron Smith, Prattville, for appellee.
   THOMPSON, Judge.

Kenneth J. Sexton (“the husband”) and Laniece Sexton (“the wife”) were divorced by a December 17, 2003, judgment of the trial court. The divorce judgment ordered the husband to pay the wife $900 a month in periodic alimony, beginning January 1, 2004, and to pay attorney fees in the amount of $1,000 and court costs consisting of a filing fee in the amount of $157 within 30 days of the entry of the divorce judgment.

On November 10, 2004, the wife filed in the trial court a petition for a rule nisi requesting that the trial court hold the husband in contempt for his alleged failure to pay the periodic alimony, attorney fees, and court costs as ordered in the December 17, 2003, divorce judgment. The wife requested that, upon a finding of contempt, the husband be incarcerated until such time as he purged himself of the contempt. The husband answered; although he admitted that he had failed to pay those court-ordered amounts, he asserted as a defense his inability to pay them. The husband filed a counterclaim seeking to terminate, or substantially reduce, his pe-riodfc-alimony obligation.

On June 6, 2005, the trial court held a hearing at which it received ore tenus and documentary evidence. Our review of the evidence reveals the following relevant facts. The parties were married for approximately two and a half years. No children were born of the parties’ marriage. Both parties have a child from a previous marriage; the wife has a daughter and the husband has a son.

As of the date of the hearing in this matter, the total amount that the husband owed the wife for periodic alimony, attorney fees, and court costs, including applicable interest, was $18,919.12. During his testimony, the husband admitted that he had not paid those court-ordered amounts but asserted as a defense that his failure to pay them was not “deliberate” because, he claimed, he lacked the financial ability to pay them.

The record reveals that the husband’s financial condition deteriorated following the parties’ divorce. During the parties’ marriage and at the time of their divorce, the husband was employed by M.D. Ray Contractors and Coosa Contracting (“Ray Contractors”) as an accountant. The husband testified that he was laid off from his job at Ray Contractors in April 2004 and that he remained unemployed until November 2004. He said that he was hired by Caddell Construction Company (“Cad-dell Construction”) as an accountant/contract manager in November 2004; he continued to work at Caddell Construction at the time of the hearing in this matter.

The husband testified that at the time of the hearing in this matter he lived in a one-bedroom, one-bathroom, “mother-in-law” apartment that he had moved into in January 2005; he no longer owned the house that he had been awarded pursuant to the parties’ divorce judgment. The husband testified that he refinanced the mortgage on his house in April 2004 “to get some cash out of it.” The record includes a copy of an April 5, 2004, mortgage in favor of CitiFinancial Corporation, LLC (“CitiFinancial”), on that property; that mortgage secured the payment of a promissory note in the principal amount of $121,282.78. The husband said that following the parties’ divorce he was unable to make the monthly mortgage payments on his house. He also stated that CitiFinan-cial initiated foreclosure proceedings and that the house was sold in May 2005 for $92,500. The husband testified that he still owed the deficiency balance of approximately $28,800.

The husband also testified that following the parties’ divorce but before he was laid off from Ray Contractors CitiFinancial repossessed his vehicle due to his inability to make the monthly payments on that vehicle. He said that after CitiFinancial sold that vehicle it sued him for a deficiency balance of $11,524.48. He introduced into evidence a copy of CitiFinancial’s March 2005 complaint in that lawsuit, and he testified that that lawsuit was still pending. The husband testified that after his vehicle was repossessed he leased a 2000-model-year truck for $410 per month but that as of the date of the hearing he was three to four months behind on his lease payments. He introduced into evidence a copy of the June 1, 2005, statement for that leased vehicle reflecting that he owed $1,640.12.

The husband also testified that he had paid $477 per month in child support to his first wife for their 15-year-old son until shortly before the hearing in this matter. The husband said that his first wife died in May 2005, at which time his son moved in with him. The husband stated that his first wife had never sued him for nonpayment of child support and that he had been current with his child-support payments at the time of his first wife’s death.

The husband introduced into evidence an exhibit entitled “Ken Sexton’s Monthly Expenses”; that exhibit reflected monthly “take home pay” in the amount of $8,415.54 and monthly expenses in the amount of $8,720. That exhibit read in its entirety:

“Truck $ 410

“Rent

(Will have to rent larger apartment with bedroom for [the son]) $ 475
“Utilities $ 430
“Car Insurance
(Will have additional car insurance for the son) $ 100
“Health Insurance
(Will have to put the son on his health insurance) $ 230
“Life Insurance $ 50
“Food & Groceries $ 900
“Gas $ 250
“Entertainment (movies, bowling, etc. with the son) $ 200
“Car Repairs (tires, oil, etc.) $ 100
“Clothing and Cleaners $ 200
“Hail- cuts $ 50
“Christmas Club/Gifts $ 25
“Dentist/Doctor Visits ([the son] has asthma) ([the son] may need braces) $ 200
“Grooming Items $ 50
“Cell phone (for [the son]) $ 50
“Total $ 3,720
“ ‘Take Home Pay’ $ 3,415.54”

(Bold typeface in original.)

At the time of the hearing in this matter, the husband’s son had been living with him for less than a month. The husband explained at the hearing that the $475 amount for “rent” was for the one-bedroom, one-bathroom, “mother-in-law” apartment. He testified that he needed a bigger place to accommodate his son. He also explained that the $230 amount for “health insurance” did not include family coverage for his son, which costs an additional $200 per month; the son previously had been covered under his first wife’s health-insurance policy. The husband testified that the $200 amount for his son’s asthma and braces were expenses that he did not have at the time of the parties’ divorce. The husband also testified that when his son turns 16 in November 2005 he would like to purchase the son a used truck and that he would have the added expenses of automobile insurance coverage for the son as well as maintenance and gasoline for the son’s truck.

The husband also introduced into evidence his personal-checking-account statements from December 17, 2003, through March 16, 2005. He divided those statements into two exhibits — the first set was for the 12-month period, beginning December 17, 2003, through December 16, 2004, and the second set was for the 3-month period, beginning December 16, 2004, through March 16, 2005. The husband testified that he paid his living expenses out of that checking account.

During the period December 17, 2003, through December 16, 2004, the husband’s checking account reflected that his average monthly deposits and his average monthly withdrawals were approximately the same, i.e., approximately $2,100. The husband testified that during that period of time (from December 17, 2003, through December 16, 2004), he did not have any other moneys from which to pay the periodic alimony, attorney fees, and court costs.

During the period December 16, 2004, through March 16, 2005, the husband’s checking account reflected that his average monthly deposits were $3,681.95 and his average monthly withdrawals were $3,600.19. The husband testified that those deposits consisted of his “take home pay” from Caddell Construction; the husband’s checking-account statements reflect bimonthly deposits from Caddell Construction. When asked by his attorney, “And does this represent all of the income [except for April and May 2005] that you had in 2005?” the husband responded “yes.” The husband testified that he did not deposit any extraordinary amounts into his checking account during April and May 2005. He further testified that his employment income was his only source of income and that he did not have any assets or retirement accounts that he could liquidate to pay the court-ordered amounts.

On cross-examination, the husband admitted that he had not paid the amount he owed the Internal Revenue Service (“IRS”) at the time of the parties’ divorce. When questioned about a number of other lawsuits in which he was involved and judgments entered against him, the husband admitted that he had not paid a 1995 judgment in favor of TransAmerica Financial Services in the amount of $64,623; he claimed that the other judgments entered against him had been paid and that the other lawsuits in which he had been involved had been dismissed.

Regarding the wife’s financial condition, the record indicates that at the time of the hearing in this matter the wife lived in the marital residence that she had been awarded pursuant to the parties’ divorce judgment; the wife had owned that house before the parties’ marriage. The record indicates that at the time of the hearing in this matter the outstanding mortgage indebtedness on that house was approximately $120,000. The wife also testified that she owned a rental house that she had been awarded pursuant to the parties’ divorce judgment; she had owned that rental property during the parties’ marriage. The record indicates that that property had an outstanding mortgage indebtedness of approximately $43,000 to $45,000. The wife testified that she received $600 in monthly rental payments and that she used those payments to pay for maintenance and expenses related to that property-

At the time of the hearing in this matter, the wife worked as a realtor for RE/ MAX Properties where she had worked during the parties’ marriage and at the time of their divorce. The wife testified that her income had remained substantially the same as it had been at the time of the parties’ divorce. The wife’s 2003 income-tax return reflected business income in the amount of $42,731 ($69,854 in real-estate commissions minus $27,123 in business-related expenses). The wife’s 2004 income-tax return reflected business income in the amount of $40,487 ($67,619 in real-estate commissions minus $27,132 in business-related expenses).

On June 9, 2005, the same date as the hearing in this matter, the trial court entered a judgment on the case action summary finding the husband “to be in contempt for his failure to pay alimony, arrears set at $18,919.12. Court orders [the husband] into custody until he pays $18,919.12. Court denies [the husband’s] petition for modification of alimony.” On that same date, the trial court entered another judgment on the case action summary stating that the “Court allows [the husband] to remain out of custody pending appeal.” The husband timely appealed.

On appeal, the husband contends that the trial court erred in finding him in contempt for the nonpayment of periodic alimony, attorney fees, and court costs and for ordering him incarcerated until he purged himself of the contempt. The husband argues that he presented uncontro-verted evidence of his inability to pay and that, having presented such evidence, the burden shifted to the wife to prove, beyond a reasonable doubt, that he had the ability to pay. He asserts that the wife failed to meet that burden of proof.

In Sealy v. D’Amico, 789 So.2d 863 (Ala.Civ.App.2000), this court stated:

“Our standard of review of the trial court’s judgment is the ore tenus rule:
“ ‘Where a trial court receives conflicting ore tenus evidence, its judgment based on that evidence is presumed correct, and this court will not reverse such a judgment absent a finding of a plain and palpable abuse of discretion. Brannon v. Brannon, 477 So.2d 445 (Ala.Civ.App.1985). The presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demean- or. Hall v. Mazzone, 486 So.2d 408 (Ala.1986).’
“Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999).
“Additionally, we must also consider the law governing this court’s review of a finding of civil contempt:
“ ‘The purpose of a civil contempt proceeding is to effectuate compliance with court orders and not to punish the contemnor. The inability to pay child support or alimony is a defense to contempt. When the accused presents evidence that he is unable to pay the ordered amount, the burden o[f] proof is on the complainant to prove beyond a reasonable doubt that he can comply.’
“Watts v. Watts, 706 So.2d 749, 751 (Ala.Civ.App.1997) (citations omitted).”

Sealy v. D’Amico, 789 So.2d at 866.

In Hurd v. Hurd, 485 So.2d 1194 (Ala.Civ.App.1986), this court stated:

“The rule is that if it be shown at a contempt hearing that the party cited is unable to comply with the decree of the court due to want of means rather than mere contumacy, then there is no contempt. Thomas v. Thomas, 406 So.2d 939 (Ala.Civ.App.1981). In other words, the lack of ability to comply is a complete defense to a contempt proceeding for failure to pay. Thomas v. Thomas, supra.

485 So.2d at 1195. Further, “[t]his court has previously recognized that imprisonment, as a means of coercing payment, may not be imposed when the failure to pay alimony is due to a present inability to comply with the order, rather than due to contumacy.” Summers v. Summers, 661 So.2d 243, 244 (Ala.Civ.App.1995) (citing Ex parte Talbert, 419 So.2d 240 (Ala.Civ.App.1982)).

In Summers v. Summers, supra, this court reversed the trial court’s order requiring the husband in that case to remain incarcerated until he paid $22,976.99 in alimony arrearage. In that case, the husband’s testimony revealed that he had a 90% disability and that he received $1,500 per month in Veterans’ Administration disability benefits and $600 per month in Social Security disability benefits. He testified that his disability income, which totaled $2,100 per month, was his only income and that his living expenses totaled approximately $2,000 per month. The husband in Summers also testified that he had only one bank account and that the current balance in that account was approximately $30. He further testified that he did not own any real estate and that his only assets were a 1975 Chevrolet truck, worth approximately $400, and a boat, worth approximately $2,000. Summers v. Summers, 661 So.2d at 244.

Based on that evidence, this court concluded that

“[t]he husband presented evidence that he [was] unable to pay the arrear-age. The burden shifted to the wife to prove beyond a reasonable doubt that the husband ha[d] the ability to pay the ordered amount. Morgan v. Morgan, 582 So.2d 1147 (Ala.Civ.App.1991).
“The wife failed to present any evidence to demonstrate that the husband ha[d] the financial means available to allow him to purge himself of contempt. Consequently, the wife failed to meet her burden of proof.... Morgan, 582 So.2d 1147.”

Summers v. Summers, 661 So.2d at 244-45.

In the present case, the husband presented evidence indicating that his financial condition deteriorated following the parties’ divorce. He was unemployed from April 2004 until November 2004. Further, the husband’s testimony and his personal-checking-account statements revealed that his “take home pay” was approximately $3,500 and that his monthly living expenses were approximately $3,400 plus additional expenses for his son, such as $230 per month for health-insurance coverage. The husband’s testimony revealed that those additional expenses for his son were due, in part, to his first wife’s death, his assumption of custody of his son, his son’s asthma and probable need for braces, and his son’s age. The husband further testified that he did not own any real estate or a vehicle and that he has no other sources of income or assets from which to pay the court-ordered amounts. The husband also presented evidence indicating that he has substantial debts.

We conclude that the husband presented sufficient evidence indicating that he is unable to pay the court-ordered amounts. Thus, the burden shifted to wife to prove beyond a reasonable doubt that the husband has the ability to pay the court-ordered amounts. Summers v. Summers, 661 So.2d at 244-45. The wife failed to present any evidence to demonstrate that the husband had the financial means to pay the court-ordered amounts and to purge himself of the contempt. Consequently, the wife failed to meet her burden of proof. Summers v. Summers, 661 So.2d at 245. Therefore, we conclude that the trial court erred in finding the husband to be in contempt and ordering him incarcerated until he purged himself of the contempt. Accordingly, the trial court’s judgment as to this matter is due to be reversed.

Next, the husband contends that the trial court abused its discretion in failing to deny his request for the termination of, or a substantial reduction in, his periodic-alimony obligation.

In Sellers v. Sellers, 893 So.2d 456 (Ala.Civ.App.2004), this court stated:

“ ‘ “It is well established in Alabama that the modification of an alimony provision based upon changed circumstances is a matter that rests within the [trial] court’s sound discretion.”’ Stinson v. Stinson, 729 So.2d 864, 868 (Ala.Civ.App.1998) (quoting Ex parte Millard, 683 So.2d 1002, 1003 (Ala.1996)).
“ ‘The modification of periodic alimony is a matter within the discretion of the trial court, and on appeal its judgment on that matter is presumed correct.... The trial court may modify an award of periodic alimony if the petitioner proves that a material change of circumstances has occurred since the last award was made. The trial court may consider several factors, including the earning capacity of each spouse, the recipient’s needs and the payor’s ability to meet those needs, and the estate of each spouse.’
“Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala.Civ.App.1995) (citations omitted). Furthermore, this court is not permitted to reweigh the evidence on appeal or to substitute its judgment for that of the trial court. See Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996).”

Sellers v. Sellers, 893 So.2d at 461. We also note that whether the parties have dependent children is an additional factor to be considered in modification proceedings as to periodic alimony. Murphy v. Murphy, 470 So.2d 1297 (Ala.Civ.App.1985).

Based on the evidence presented to the trial court and already detailed in this opinion, we conclude that a material change in circumstances had occurred in the husband’s financial condition and that the trial court abused its discretion in failing to modify the husband’s periodic-alimony obligation. Accordingly, the trial court’s judgment as to that matter is reversed, and the cause is remanded for the trial court to reexamine the wife’s present financial needs in light of the husband’s present financial ability to meet those needs and to consider awarding the wife a lesser amount of periodic alimony. Morgan v. Morgan, 582 So.2d 1147 (Ala.Civ.App.1991).

REVERSED AND REMANDED WITH INSTRUCTIONS.

CRAWLEY, P.J., and PITTMAN, MURDOCK, and BRYAN, JJ., concur.

      . The husband appealed the divorce judgment. On November 5, 2004, this court affirmed the divorce judgment, without an opinion. Sexton v. Sexton, 915 So.2d 1190 (Ala.Civ.App.2004) (table).

      . We assume for purposes of this opinion that the parties' marriage was the second marriage for both of them. At the time of the hearing in this matter, the wife received $737 in child support from her first husband for their daughter. The husband's financial obligations regarding his son are discussed later in this opinion.

      . The husband is not a certified public accountant.

      .We note that the record is somewhat confusing regarding whether the husband owes the deficiency balance on the promissory note. The record includes a copy of a January 21, 2005, warranty deed in which the husband conveyed his interest in the property to Lucien Stronach as trustee of the Jasmine Hill Trust ("the trustee”) and the trustee agreed to assume and pay the "mortgage.'' The record also includes documentation relating to the May 2005 sale of the property; that documentation indicates that CitiFinancial agreed to accept a payoff of $92,500 on the promissory note and, upon receipt of that payment, to release the mortgage on the property. That documentation further indicates that the "sellers” were the husband and the trustee and the "purchaser” was the trustee.

      . The husband’s personal-checking-account statements introduced into evidence at the hearing indicate that the husband’s paychecks from Caddell Construction were deposited into his checking account by "direct deposit.” Those statements further indicate that at the time of the hearing the husband's monthly "take home pay” was at least $3,496.

      . Although the record in the present case does not contain evidence of the specific amount of the IRS tax lien, the record in the prior divorce action contained evidence indicating that the IRS tax lien was in excess of $500,000. See Slepian v. Slepian, 355 So.2d 714, 716 (Ala.Civ.App.1977) (for a discussion of taking judicial notice of matters in prior actions).

      . We note that the wife introduced into evidence as "Exhibit One” an exhibit entitled "Computation of Amount Due from Kenneth Sexton,” listing $18,919.12 as the total amount that the husband owed her pursuant to the divorce judgment. That exhibit reflected $900 a month in periodic alimony for the months of January 2004 through June 2005, as well as unlabeled amounts for $1,000 and $157, both due on January 17, 2004. The $1,000 and $157 correlate to the amounts that the wife claimed the husband owed her for attorney fees and court costs pursuant to the divorce judgment. Although the June 9, 2005, judgment stated that the "alimony arrears” was $18,919.12, the wife’s "Exhibit One” clearly reflects that $18,919.12 was the total amount owed for the alimony arrearage, attorney fees, and court costs. Although the trial court made a typographical error by failing to specify that that amount included the attorney fees and court costs, we conclude that all of the claims have been adjudicated.

      . Even assuming that some of the husband’s monthly expenses were somewhat excessive or unnecessary, the totality of the evidence clearly demonstrates that the husband was unable to pay the court-ordered amounts.


source: Caselaw Access Project

author: THOMPSON, Judge. MURDOCK, Judge,

license: Public Domain

text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY v. COCHRAN PLASTERING COMPANY, INC.
    2040647.
    Court of Civil Appeals of Alabama.
    Jan. 13, 2006.

      E.J. Saad of Crosby Saad, LLC, Mobile, for appellant.
    James P. Green and Thomas H. Nolan, Jr., of Wright, Green, P.C., Mobile, for appellee.
   THOMPSON, Judge.

Hartford Accident & Indemnity Company (“Hartford”) appeals a judgment entered against it and in favor of Cochran Plastering Company, Inc. (“Cochran Plastering”).

Lee L. Saad Construction Co., Inc. (“Saad Construction”), entered into a contract pursuant to which it was to serve as the general contractor for the construction of Semmes Middle School (“the school”) for the Board of School Commissioners of Mobile County (“the Board”) and the Alabama Public School and College Authority. Hartford was Saad Construction’s surety, pursuant to § 39-1-1, Ala.Code 1975, for the school-construction contract. Saad Construction hired Cochran Plastering to perform certain work as a subcontractor in the construction of the school. After the construction of the school, a dispute arose between Saad Construction and Cochran Plastering regarding amounts due to be paid to Cochran Plastering.

Cochran Plastering sued Hartford, as Saad Construction’s surety asserting a breach-of-contract claim and seeking to recover $22,191.19, plus interest and an attorney fee. Saad Construction intervened in the action and filed a third-party claim alleging assault and trespass against Cochran Plastering; Cochran Plastering filed a claim alleging assault against Saad Construction. Both Cochran Plastering and Saad Construction amended their claims against the other.

The trial court conducted a hearing and received ore tenus evidence. At the beginning of that hearing, Cochran Plastering and Saad Construction each moved to dismiss their assault claims, and Saad Construction moved to dismiss its trespass claim against Cochran Plastering. On January 26, 2005, the trial court entered a judgment in which it found in favor of Cochran Plastering and against Saad Construction on Cochran Plastering’s breach-of-contract claim. On Saad Construction’s motion, the trial court later amended that judgment to find in favor of Cochran Plastering and against Hartford and awarded Cochran Plastering $33,978.88 in damages, including costs and an attorney fee. Hartford timely appealed.

The record indicates the following pertinent facts. Saad Construction contracted to pay Cochran Plastering a total of $287,750 in exchange for Cochran Plastering’s performing plastering or stucco work on the construction of the school. The contract between Saad Construction and Cochran Plastering provided that Saad Construction make periodic progress payments to Cochran Plastering as Cochran Plastering completed portions of its work. Those progress payments were subject to a 5% ’’retainage.” Michael Cochran (“Cochran”), one of the owners of Cochran Plastering, explained that general practice in the construction industry allows a general contractor to retain a portion of the amount to be paid to a subcontractor in order to ensure the completion of and the quality of the work performed by the subcontractor.

As its work progressed, Cochran Plastering submitted periodic progress-payment requests, and Saad Construction paid those requests in a timely manner. Each of the payment requests contained a provision entitled “certification by the subcontractor,” which stated, among other things, that Cochran Plastering certified that “payments, less applicable retention, have been made through the period covered by previous payments received from [Saad Construction].”

After Cochran Plastering completed its work on the school, it submitted its final payment request, seeking payment in the amount of $12,849.27; that amount did not include the retainage amount, which, at that point, totaled $9,341.92. Saad Construction supplied Cochran Plastering with a form entitled “final release and waiver of lien from subcontractor” (“the release”) to sign, and on August 14, 2002, Cochran, on behalf of Cochran Plastering, signed that release. The release stated that the amount of the final periodic payment request, $12,849.27, “pa[id] in full the contract between [Cochran Plastering and Saad Construction]” and that “[t]his waiver is contingent on the payment of the above-listed amount.”

Cochran testified that it was standard industry practice for a subcontractor to execute releases such as the one he executed on August 14, 2002, in order to receive its final payment, and that the subcontractor generally received the payment set forth in the release within 30 days of the execution of the release. Cochran further testified that it was standard procedure for the subcontractor to be paid the retainage amount within a period of a few months to a year after the execution of the “final” release, and that in exchange for the payment of the retainage, the subcontractor would sign yet another release. The testimony of Paul Baker (“Baker”), Cochran Plastering’s former business manager, supported Cochran’s testimony on these matters. However, Lee Saad (“Saad”), the president of Saad Construction, disputed that testimony; he stated that in his 20 years’ experience in the construction industry, he had only given or obtained releases for the “final payment.”

It is undisputed that Saad Construction did not pay the $12,849.27 when Cochran signed the release or within 30 days of Cochran Plastering’s submitting the periodic-payment request, together with the release. Baker testified that he telephoned Saad Construction repeatedly in an effort to obtain payment. Saad Construction had requested that Cochran Plastering submit certain materialmen-lien waivers and other documents pertinent to the tax-exempt status of the project. Apparently in an attempt to deliver those doeu-ments to Saad Construction, Cochran traveled to Saad Construction’s workplace on November 25, 2002. However, during that meeting, Cochran and Saad became involved in a physical altercation; that altercation formed the basis of the trespass and assault claims that were later voluntarily dismissed. Cochran testified that he did not leave the requested waivers or tax documents with Saad Construction after that physical altercation.

Two days after the altercation, on November 27, 2002, Cochran Plastering submitted to Saad Construction a request for payment of the 5% retainage. On November 30, 2002, Saad sent a letter to Cochran Plastering rejecting the request for the payment of the retainage, citing as the basis for that rejection his contention that Cochran Plastering had “breached [the] contract.” The trial court questioned Saad regarding his contention that Cochran Plastering had breached the contract; Saad responded by stating that “I felt like I did not want to be dealing with him anymore, your Honor.”

On December 4, 2002, the lien-waiver and tax documents Saad Construction had requested from Cochran Plastering were in the possession of either Saad Construction or its attorney. However, Saad Construction did not pay either the amount specified in the August 14, 2002, release or the amount of the retainage at that time or within 30 days of receiving those documents.

During the trial, Saad insisted that he and Baker had an agreement that Cochran Plastering would pay certain “backcharg-es,” or charges for the use of Saad Construction’s equipment by Cochran Plastering. According to Saad, Baker agreed to waive the retainage in exchange for Saad Construction’s waiving the “backcharges,” and, Saad alleged, the language of the release incorporated that agreement. Baker disputed that testimony by denying that he had ever discussed “backcharges” with anyone at Saad Construction. Saad acknowledged that he had not mentioned any “backcharges” in any of his correspondence with Cochran Plastering. Saad stated that he never “sat down and formally put together” the amount of “backcharges” he contended was owed by Cochran Plastering; however, he estimated those charges to be “around seventeen, eighteen thousand, somewhere in that range.”

On February 23, 2003, Cochran Plastering filed its complaint in this matter. On August 6, 2003, while the action was pending in the trial court, Saad Construction sent Cochran Plastering a check for $12,849.27, together with a letter stating:

“With this letter we are enclosing Saad Construction’s check for $12,849.27, made payable to Cochran Plastering Company and [Cochran Plastering’s] attorney. In making this payment, Saad Construction does not admit any other, further, or different responsibility and insists that it was entitled to act within the scope of its contract.”

The “memo” line of the August 6, 2003, check read “Semmes sub August.” Saad testified that he relied on the release in sending the August 6, 2003, check, and that he would not have sent that money had he not thought it would settle the dispute between Saad Construction and Cochran Plastering.

Cochran Plastering negotiated the August 6, 2003, check, and Cochran sent a letter, dated August 7, 2003, to Saad Construction, stating:

“I have Lee Saad Construction Company, Inc.’s check in the amount of $12,849.27 which you forwarded under cover of letter dated August 6, 2003. I wanted to make it clear that by negotiating this check, Cochran [Plastering] does not waive or release any claim it may have against Saad Construction or Saad’s surety for additional amounts due, or for attorney’s fees and interest on the amount paid, as well as additional amounts due.”

The parties appeared for trial on January 18, 2005. At the trial, Hartford raised, for the first time, the defenses of release and accord and satisfaction. However, those defenses were tried by the implied consent of the parties. See Rule 15(b), Ala. R. Civ. P.; and Tounzen v. Southern United Fire Ins. Co., 701 So.2d 1148, 1150 (Ala.Civ.App.1997). In finding in favor of Cochran Plastering on its breach-of-contract claim, the trial court awarded Cochran Plastering damages “in the amount of $11,051.90, said award consisting of $9,341.92 in retainage and $1,709.08 for interest at 6% .... [Cochran Plastering] is further awarded the sum of $21,577.50 in attorney fees” and “[c]osts in the amount of $888.48.”

Initially, we note that we agree with Hartford’s argument on appeal that Hartford cannot be liable to Cochran Plastering unless Cochran Plastering was entitled to recover from Saad Construction. See Federal Ins. Co. v. I. Kruger, Inc., 829 So.2d 732, 736 (Ala.2002) (if there is no right of recovery against the principal, there is no right of recovery against the surety on the payment bond); and Magic City Paint & Varnish Co. v. American Surety Co. of New York, 228 Ala. 40, 43, 152 So. 42, 44 (1934) (“if liability be not shown against the contractor, clearly none can be established against the surety”).

Condition Precedent

Hartford argues on appeal that a condition precedent to Saad Construction’s obligation to pay Cochran Plastering was that Saad Construction be paid by the Board, and that because that condition was not met, Saad Construction had no liability to Cochran Plastering. Hartford cites only the emphasized portion of the following quote from the final-payment provision contained in the contract between Saad Construction and Cochran Plastering:

“Final payment constituting the entire balance of the Subcontract Sum shall be made by the Contractor to the Subcontractor when the Subcontractor’s work is fully performed in accordance with the requirements of the contract documents, the Architect has issued a Certificate for Payment covering the Subcontractor’s completed work, and the Contractor has received payment from the owner. Final payment shall then be made to [Cochran Plastering] withing fifteen (15) days following [Saad’s] receipt of payment from [the Board].”

(Emphasis added.)

It is undisputed that the Board made a payment to Saad Construction by, at the latest, November 2002, and that, thereafter, Saad Construction sent a letter to Cochran Plastering asking it to submit certain waivers so that Saad Construction could send Cochran Plastering its final payment. In arguing in its brief on appeal that Saad Construction has not been paid by the Board, Hartford relies on the fact that, at the time of the trial in this matter, litigation between Saad Construction and the Board was pending in another action. Hartford maintains that it is not required to pay Cochran Plastering until the litigation between Saad Construction and the Board results in Saad Construction’s receiving its final payment under its contract with the Board. It is unclear what position Hartford takes with regard to Saad Construction’s paying Cochran Plastering should that litigation not end in a result favorable to Saad Construction.

When read in its entirety, however, the “final payment” provision of the contract between Saad Construction and Cochran Plastering does not support the interpretation advanced by Hartford. The final-payment provision clearly establishes that Cochran Plastering was to be paid after the architect submitted the certificate for payment to the Board and the Board paid Saad Construction. There is no dispute that Saad Construction received that progress payment from the Board by November 2002 for work on the project that included Cochran Plastering’s completed work. However, Saad Construction did not pay Cochran Plastering in compliance with the final-payment provision. Hartford has failed to demonstrate error with regard to this issue.

Further, we must also reject Hartford’s “condition precedent” argument on other grounds. In Federal Insurance Co. v. I. Kruger, Inc., supra, our supreme court analyzed a clause similar to the one at issue in this case, which that court characterized as a “pay-when-paid clause.” Our supreme court concluded that the clause at issue in that case was “merely a timing mechanism for the final payment under the subcontract,” rather than a condition precedent to the subcontractor’s being paid. 829 So.2d at 737. Hartford argues that the pay-when-paid clause at issue in Federal Insurance Co. v. I. Kruger, Inc., supra, is distinguishable from the pay-when-paid clause at issue in this case, and, therefore, that the clause at issue in this case bars Cochran Plastering from recovering under the payment bond. We find an analysis of the two pay-when-paid clauses to be unnecessary under the facts of this case because our supreme court held in Federal Insurance Co. v. Kruger, supra, that a surety could not assert as a defense to its liability under a payment bond a pay-when-paid clause contained in a contract between a contractor and a subcontractor. The court explained that “[t]he payment bond and the subcontract are separate contracts,” and that in that case, as in this case, the payment bond does not condition payment by the surety on the owner’s paying the general contractor. Federal Ins. Co. v. I. Kruger, Inc., 829 So.2d at 741. “[Allowing a surety on a payment bond, such as [Hartford], to assert a pay-when-paid clause as a defense to an action seeking payment on the bond would defeat the very purpose of a payment bond issued to guarantee payment to a subcontractor,” 829 So.2d at 741, which is “to ‘shift the ultimate risk of nonpayment from workmen and suppliers to the surety.’ ” 829 So.2d at 736.

Hartford, and not Saad Construction, is the defendant in this action. Hartford’s surety contract “does not condition payment to [Cochran Plastering] on the [Board’s] making a final payment to [Saad Construction].” See Federal Ins. Co. v. I. Kruger, Inc., 829 So.2d at 741.

“ ‘[Cochran Plastering] is suing under the [payment bond issued by Hartford] and not the subcontract. The two are separate agreements. [Hartford] has neither cited, nor have we discovered, any authority for the proposition that the inability to proceed against the general contractor because of a “pay when paid” clause in the subcontract necessarily prevents recovery against [Hartford] under the payment [b]ond. Indeed, such an argument runs counter to the underlying purpose of the payment [b]ond, i.e., the assurance of payment to subcontractors.
“ ‘... [Hartford’s] obligations under the [b]ond are completely unrelated to the “pay when paid” clause. Moreover, payment by the owners to [Saad Construction] is not within [Cochran Plastering’s] control. Pursuant to [Hartford’s] theory, a subcontractor could satisfactorily perform all of its own obligations under the subcontract and yet never recover under the [b]ond if the general contractor does not receive payment from the owner.’ ”

Federal Ins. Co. v. I. Kruger, Inc., 829 So.2d at 741-42 (quoting Brown & Kerr Inc. v. St. Paul Fire & Marine Ins. Co., 940 F.Supp. 1245, 1249 (N.D.Ill.1996)). Given the foregoing, we cannot say that Hartford has demonstrated that it is entitled to prevail based upon its “condition precedent” argument.

Release

Hartford also argues that the August 14, 2002, release was valid and enforceable and that it barred all further recovery by Cochran Plastering. In asserting this argument, Hartford intertwines arguments pertaining to the purported release with arguments pertaining to the defense of an accord and satisfaction. Our supreme court has quoted with approval the following jury instruction that explains the distinction between a release and an accord and satisfaction:

“ ‘A release is the giving up or abandoning of a claim or right by the person in whom it exists or to whom it accrues to the party against whom the claim exists or the right is to be enforced or exercised....
“ ‘An accord is an agreement to accept an extinction of an obligation, something different from or less than that to which the person agreeing to accept is claiming or entitled.’ ”

American Nat’l Fire Ins. Co. v. Hughes, 624 So.2d 1362, 1364 (Ala.1993).

We first address the issue whether the August 14, 2002, release was enforceable. It is well settled that “[i]n the absence of fraud[] or ambiguity, a release supported by valuable consideration will be given effect according to the intention of the parties, which is to be judged by the court from what appears within the four corners of the instrument itself, and ordinarily parol evidence is not admissible to impeach or vary its terms.” Johnson v. Asphalt Hot Mix, 565 So.2d 219, 220 (Ala.1990); see also Boggan v. Waste Away Group, Inc., 585 So.2d 1357, 1359 (Ala.1991); Fassina v. Cincinnati Ins. Co., 582 So.2d 1111, 1113 (Ala.1991); Alabama Farm Bureau Ins. Co. v. Hunt, 519 So.2d 480, 481-82 (Ala.1987); Jehle-Slauson Constr. Co. v. Hood-Rich, Architects & Consulting Eng’rs, 435 So.2d 716, 719-20 (Ala.1983); and Skilstaf, Inc. v. Williams, 895 So.2d 916, 918 (Ala.Civ.App.2002).

Hartford contends that the August 14, 2002, release, which was signed by Cochran “individually and on behalf of [Cochran Plastering]” was enforceable. However, Cochran Plastering argues that the August 14, 2002, release was not supported by consideration, and, therefore, that it was not enforceable.

The release indicates that Saad Construction was to pay Cochran Plastering $12,849.27 for the release of its claims. That release was “contingent on payment of the above-listed amount.” The release does not specify the time by which Saad Construction was required to pay the $12,849.27. We conclude that the release was ambiguous with regard to that issue. Therefore, the trial court did not err in considering parol evidence in that instance. See Nix v. Henry C. Beck Co., 572 So.2d 1214, 1217 (Ala.1990) (“If the terms of the release are ambiguous, then the intention of the parties is to be determined as a question of fact, and parol evidence is admissible on that question.”).

Saad Construction insists that the August 6, 2003, check constituted the consideration for the August 14, 2002, release. However, as Cochran Plastering pointed out at the trial, Saad Construction did not pay the $12,849.27 set forth as the consideration for that release at the time the release was executed or within a reasonable time (as defined by industry practice) thereafter. The August 6, 2003, check was sent to Cochran Plastering over five months after Cochran Plastering had filed its complaint in this matter and approximately one year after Cochran had signed the release. The evidence indicated that industry practice allowed Saad Construction approximately 30 days after the signing of the release to pay Cochran Plastering the amount specified in the release, but Saad Construction did not do so. Also, by early December 2002, Saad Construction had in its possession all of the waivers it had demanded that Cochran Plastering provide it; still, Saad Construction did not pay the amount specified in the release.

Further, the evidence does not clearly indicate that by sending the August 6, 2003, check, Saad Construction intended to comply with the terms of the August 14, 2002, release. Although Saad testified that he relied on the August 14, 2002, release in sending the August 6, 2003, check, the letter accompanying that check and the “memo” line on that check did not reference the release.

The evidence supports a conclusion that the August 14, 2002, release was not supported by consideration. Therefore, we must conclude that Hartford has failed to demonstrate that the trial court erred in refusing to enforce the terms of that release.

We note that Hartford argues that under § 8-1-23, Ala.Code 1975, the release was not required to be supported by consideration because it was in writing. That section provides:

“An obligation is extinguished by a release therefrom given to the debtor by the creditor upon a new consideration or in writing with or without new consideration.”

(Emphasis added.) Hartford also cites cases in which our supreme court held that new consideration was not necessary in cases in which there was a written release. See Steward v. Turner, 551 So.2d 374 (Ala.1989); Thrash v. Deason, 435 So.2d 69 (Ala.1983); and Grand Lodge Knights of Pythias of N. America v. Williams, 245 Ala. 220, 16 So.2d 497 (1944). We do not find those cases to be controlling, however. In those cases, some consideration was cited in each of the releases and ivas paid in support of the release. The cases cited by Saad Construction do not stand for the proposition that the consideration specified in a written release does not have to be paid in order for the release to be effective.

In this case, the release stated that Cochran Plastering would waive any potential claims in exchange for payment of $12,849.27. A “release when in writing must be given effect according to its plain terms.” Grand Lodge Knights of Pythias of N. America v. Williams, 245 Ala. at 222, 16 So.2d at 499. According to its “plain terms,” the August 14, 2002, release was effective only if supported by the stated consideration. However, assuming that Saad Construction’s August 6, 2003, check might arguably be deemed to be an attempt at providing consideration for the August 14, 2002, release, that consideration was not timely paid.

Accord and Satisfaction

Hartford also asserts that Saad Construction’s payment of the August 6, 2003, check constituted an accord and satisfaction. Hartford maintains that because Cochran Plastering negotiated the August 6, 2003, check, Cochran Plastering is barred from attempting to avoid the purported accord and satisfaction. Hartford maintains that Cochran Plastering’s attempt in its August 7, 2003, letter to restrict the terms of its acceptance of the August 6, 2003, check was ineffective.

In Wallace v. Wallace, 909 So.2d 827, 831 (Ala.Civ.App.2005), this court noted that the elements of the defense of an accord and satisfaction are “ ‘(1) proper subject matter, (2) competent parties, (3) assent or meeting of the minds, and (4) consideration.’ ” (quoting Austin v. Cox, 492 So.2d 1021, 1022 (Ala.1986)). “The burden of establishing accord and satisfaction is upon the party so pleading.” National Life & Acc. Ins. Co. v. Karasek, 240 Ala. 660, 665, 200 So. 873, 877 (1941).

In Wallace v. Wallace, supra, the parties disputed whether the husband had fully paid a property settlement as dictated by the terms of their divorce judgment. The husband sent a check to the wife, the memo line of which stated “ ‘property settlement — payment in full,’ ” together with a letter indicating that the check was “ ‘for the balance of the property settlement.’ ” Wallace v. Wallace, 909 So.2d at 830 (emphasis omitted). The wife crossed out the words “ ‘in full’ ” on the check’s memo line and negotiated the check; she also sent a letter to the husband disputing that the check constituted the full payment of the balance owed on the property settlement. The wife then filed an action seeking an amount that she maintained was the outstanding balance of the property settlement. The trial court ruled in favor of the husband, concluding that there had been an accord and satisfaction. The wife appealed, and this court affirmed. This court held that the wife’s act of negotiating the check constituted an agreement to the condition upon which the check was offered. Wallace v. Wallace, supra. In explaining its reasoning, this court quoted Ex parte Meztista, 845 So.2d 795 (Ala.2001), a case decided by the Supreme Court of Alabama:

“ ‘[A party’s] placing a restrictive endorsement on the check does not create an issue of fact as to whether an accord and satisfaction had occurred. This court has held that a party in [the wife’s] position has two options: (1) reject the offer of the check as full satisfaction of the disputed claim; or (2) accept the offer of the check as a full satisfaction by cashing or depositing the check. Public Nat’l Life Ins. Co. v. Highsmith, 47 Ala.App. 488, 256 So.2d 912 (Ala.Civ.App.1971). The supreme court has held that a party in [the wife’s] position does not have the option of accepting the offer of the check and placing a restrictive endorsement on it. Boohaker v. Trott, 274 Ala. 12, 16, 145 So.2d 179, 183 (1962) (“The fact that the plaintiff attempted to ‘amend’ the legend on the check [from full payment to partial payment] cannot avail him.”). Such an altering of the terms of the offer does not affect the validity of the accord and satisfaction. Id. According to the law as stated by Highsmith and Boohaker, [the wife’s] endorsement on the check, indicating that she was not accepting the check as full payment ..., is not releT vant in light of the fact that she deposited the check. Her action of depositing the check completed the accord and satisfaction.’ ”

Ex parte Meztista, 845 So.2d at 797 (quoting Hylton v. Meztista, 845 So.2d 792, 795 (Ala.Civ.App.2000) (Crawley, J., dissenting) ) (emphasis omitted).

Hartford argues that because Cochran Plastering negotiated the August 6, 2003, check, the accord and satisfaction was completed and Cochran Plastering is barred from seeking to obtain further recovery. However, the facts of this case are distinguishable from those of Ex parte Meztista, supra, and Wallace v. Wallace, supra. In each of those cases, the memo line on the check and the letter accompanying the check indicated that the check was intended to be a full satisfaction of the parties’ dispute. In this case, however, the memo line of the check Saad Construction sent to Cochran Plastering stated only “Semmes sub August.” The August 6, 2003, letter accompanying the check from Saad Construction to Cochran Plastering, quoted earlier in this opinion, does not indicate that Saad Construction intended for the $12,849.27 payment to be in full satisfaction of all of Cochran Plastering’s claims. Given the facts of this case, we cannot agree with Hartford’s argument that the trial court erred in determining that Cochran Plastering’s acceptance of the August 6, 2003, check did not constitute an accord and satisfaction.

Attorney-Fee Award

Hartford last challenges that part of the trial court’s judgment that awarded Cochran Plastering an attorney fee. An attorney fee may be recovered based on a contract, statute, or special equities. Ex parte Burnham, Klinefelter, Halsey, Jones & Cater, P.C., 674 So.2d 1287, 1290 (Ala.1995) (“ ‘In Alabama and most other jurisdictions, the general rule is that attorney’s fees and expenses of litigation are not recoverable as damages, in [the] absence of a contractual or statutory duty, other than [by] a few recognized ... equity principles.’ ” (quoting Highlands Underwriters Ins. Co. v. Eleganté Inns, Inc., 361 So.2d 1060, 1065-66 (Ala.1978))). In this case, § 39-l-l(b), Ala.Code 1975, provides that in an action against a surety for a company that has entered into a contract with a subdivision of the state, the party suing may seek “in addition to the amount of the claim, a reasonable attorney’s fee based on the result, together with interest on the claim from the date of the notice.”

A significant portion of Hartford’s argument on this issue is dedicated to its continued assertion that an award of an attorney fee was barred by either the release or the doctrine of accord and satisfaction. This court has already addressed and rejected those arguments in this opinion. Hartford also maintains that it should not be liable for any attorney fees incurred after Saad Construction sent its August 6, 2003, check to Cochran Plastering. Given this court’s holding with regard to the issues of release and accord and satisfaction, we conclude that that argument is without merit.

With regard to the remainder of its argument on this issue, Hartford maintains that, assuming the trial court had the authority to make an award of an attorney fee for the entire time this litigation was pending, the fee awarded was excessive. Hartford argues that because the $21,577.50 awarded as an attorney fee is more than the $12,760.98 awarded for the retainage and interest, the attorney-fee award was unreasonable. Hartford cites Peebles v. Miley, 439 So.2d 137 (Ala.1983), which sets forth the following criteria for the determination of the reasonableness of an attorney fee:

“ ‘(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
“ ‘(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
“‘(3) The fee customarily charged in the locality for similar legal services. “ ‘(4) The amount involved and the results obtained.
“ ‘(5) The time limitations imposed by the client or by the circumstances. “ ‘(6) The nature and length of the professional relationship with the client.
“‘(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
“ ‘(8) Whether the fee is fixed or contingent.’
“Model Code of Professional Responsibility, Dr. 2-106(B) (1982).
“[ (9) ] Whether a fee is fixed or contingent.
“[ (10) ] The nature and length of a professional relationship.
“[ (11) ] The fee customarily charged in the locality for similar legal services. (This was included in the Faulk [& Co. v. Hobbie Grocery Co., 178 Ala. 254, 59 So. 450 (1912) ] opinion, but not listed in cases which have followed Faulk).
“[ (12) ] The likelihood that a particular employment may preclude other employment.
“[ (13) ] The time limitations imposed by the client or by the circumstances.”

Peebles v. Miley, 439 So.2d 137 at 140-41 (Ala.1983) (footnote omitted).

In Peebles v. Miley, supra, the plaintiffs attorney obtained a full collection of a $196,367 promissory note, and the trial court awarded the attorney a fee of $26,744. In that case, the attorney had agreed to a contingent fee in seeking to recover the amount owed the plaintiff, and he had only expended “8 or 10 hours’ time in the handling of [the] litigation.” Peebles v. Miley, 439 So.2d at 139. However, the court noted that the time spent on the litigation by the attorney was “premium, productive time” that resulted in a full recovery for his client. 439 So.2d at 141. Under the facts of that case, our supreme court determined that the fee awarded was excessive, concluding:

“Having briefly discussed the most current legal principles dealing with reasonable attorney’s fees, we would like to add one caveat. We agree with the admonition of the American Bar Association to the effect that ‘a fee is clearly excessive when after review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.’ We are of the opinion that $26,744.00 is in excess of a reasonable fee. As the amount of the recovery increases, the attorney’s fee should be prudently reduced. Otherwise, we would have the anomalous situation of a routine collection of a promissory note of $2,000,000.00 and an attorney’s fee of $400,000.00. The determination of a reasonable attorney’s fee should not be done in a wooden, inflexible manner, but should be done so that all factors will be given their proper interplay.”

Peebles v. Miley, 439 So.2d at 143.

In this case, Cochran Plastering’s attorney submitted an affidavit and a lengthy detailed description of the fees Cochran Plastering incurred in seeking to recover both the final payment and the retainage. In his affidavit, Cochran Plastering’s attorney alleged that the case was more complicated than the amount in controversy might indicate. Cochran Plastering’s attorney cited the fact that in defending that action, Hartford had alleged that Cochran Plastering: had breached warranties, had failed to complete or repair defective workmanship, had failed to account for sales-tax information, was liable for liquidated damages, and was barred from recovering by a “pay-when-paid” clause. Cochran Plastering’s attorney stated that he prepared to contest all of those allegations at trial, but that most of those defenses asserted by Hartford during the pendency of the litigation were dropped when the parties appeared for the trial. The attorney’s description of the hours expended on the action included drafting pleadings and responsive pleadings, conducting discovery, preparing for and attending an unsuccessful mediation, and conducting research during the pendency of the action as well as for trial.

Thus, the facts of this case are distinguishable from those of Peebles v. Miley, supra, in that the litigation in this case was complex and numerous claims and defenses were raised during the pendency of the litigation. Our supreme court has noted that, generally, a contingent attorney fee should be reduced as the recovery increases. However, the fee at issue in this case was an hourly fee. Further, although the amount in controversy in this action was relatively small, the litigation involved complicated legal issues, many of which were brought into play by Hartford.

“As in most cases, the facts play an importance part in establishing the result to be reached.” Peebles v. Miley, 439 So.2d at 139. Given the facts of this case and the arguments asserted by Hartford in its brief on appeal, we cannot conclude that Hartford has demonstrated that the trial court abused its discretion in reaching its attorney-fee award. Ex parte Edwards, 601 So.2d 82, 85 (Ala.1992) (“The 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.”).

AFFIRMED.

PITTMAN and BRYAN, JJ., concur.

MURDOCK, J., concurs in the rationale in part and concurs in the result, with writing, which CRAWLEY, P.J., joins.

MURDOCK, Judge,

concurring in the rationale in part and concurring in the result.

I concur with the analysis in the main opinion except as to the portion of that opinion titled “Condition Precedent.” Even as to that portion of the main opinion, I concur with the analysis presented, except as set forth below.

At one juncture, the main opinion states that

“we must also reject Hartford’s ‘condition precedent’ argument on other grounds. In Federal Insurance Co. v. I. Kruger, Inc., supra, our supreme court analyzed a clause similar to the one at issue in this case, which that court characterized as a ‘pay-when-paid clause.’ Our supreme court concluded that the clause at issue in that case was ‘merely a timing mechanism for the final payment under the subcontract,’ rather than a condition precedent to the subcontractor’s being paid. 829 So.2d [732] at 737 [ (Ala.2002) ]. Hartford argues that the pay-when-paid clause at issue in Federal Insurance Co. v. I. Kruger, Inc., supra, is distinguishable from the pay-when-paid clause at issue in this case, and, therefore, that the clause at issue in this case bars Cochran Plastering from recovering under the payment bond. We find an analysis of the two pay-iuhen-paid clauses to be unnecessary under the facts of this case ....”

935 So.2d at 468 (emphasis added). I disagree with the emphasized sentence. As the main opinion elsewhere indicates, and I agree, the clause at issue in the present case is similar to the one at issue in Federal Insurance Co. v. I. Kruger, Inc., 829 So.2d 732, 737 (Ala.2002), and I believe it is enough to conclude that the clause here is a timing clause, just as was the clause at issue in Kruger. It is on that basis that I concur in the result reached by the main opinion of rejecting Hartford’s “condition precedent” argument.

After positing that analysis of the two pay-when-paid clauses is unnecessary, the main opinion proceeds to justify its result by explaining that “ ‘the very purpose of a payment bond issued to guarantee payment to a subcontractor’ ” is “ ‘to “shift the ultimate risk of nonpayment from workmen and suppliers to the surety” ’ [Federal Insurance Co. v. I. Kruger, Inc.,] 829 So.2d at 736.” 935 So.2d at 468. That is true, but only if the general contractor is obligated in the first instance to make the payment in question. Accordingly, it would seem that it is only because the payment clause at issue here is not distinguishable from the payment clause in Kruger, and because we can determine as did the court in Kruger that the general contractor is obligated to make the payment in question, that we can conclude that the risk of not making that payment now lies with the surety.

CRAWLEY, P.J., concurs.

      . Cochran testified:
      "[RJetainage is normally the general contractor’s procedure for making sure that the subcontractors do not walk out on their work uncompleted. A contract is paid minus [the retainage percentage] and they retain [the retainage percentage], and by law as of my understanding it can be retained up to one year after the project is finished to make sure that your warranty for a one-year warranty is good on the workmanship or craftsmanship of your work.”

      . The record is not clear regarding to the date on which the Board paid Saad Construction for completed work that included the work performed by Cochran Plastering. One reference in the record indicates that that payment might have been received as early as August 2002.

      . Saad’s testimony established that the litigation between Saad Construction and the Board was in no manner connected with Cochran Plastering or Cochran Plastering's performance under its subcontract with Saad Construction; that litigation appears to focus primarily on the method by which taxes on the supplies for the school were paid.

      . Hartford argues that Cochran Plastering did not plead fraud as a basis for seeking to avoid the enforcement of the release, and, therefore, that it could not avoid the release. However, as noted earlier in this opinion, neither Saad Construction nor Hartford pleaded the affirmative defense of a release. Therefore, the evidence supports a determination that Cochran Plastering was not on notice of the possible necessity of asserting a defense to an argument that the release should be enforced.

      . We do not address the issue whether the release encompassed only the final payment, as contended by Cochran Plastering, or the final payment and the retainage, as is maintained by Hartford.

      . Hartford does not argue that the trial court erred in failing to set forth the reasons for its attorney-fee award. See Pharmacia Corp. v. McGowan, 915 So.2d 549, 553 (Ala.2004) ("a trial court's order regarding an attorney fee must allow for meaningful appellate review by articulating the decisions made, the reasons supporting those decisions, and how it calculated the attorney fee"). Therefore, any argument Hartford might have asserted with regard to that issue is waived. Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (an issue not argued in an appellant's brief is waived).


author: MURDOCK, Judge.

text:
    Vernie CULVER and Sherri Senn v. Earline LANG and Peggy Parker.
    2040571.
    Court of Civil Appeals of Alabama.
    Jan. 13, 2006.

      James A. Jacobs, Ariton, for appellants.
    Robert C. Faircloth and Joseph E. Faulk of Calhoun, Faulk, Watkins & Fair-cloth, LLC, Troy, for appellees.
   MURDOCK, Judge.

Vernie Culver and Sherri Senn sued Earline Lang and Peggy Parker. Lang and Parker filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss based on two affirmative defenses. The trial court granted the motion. Culver and Senn appeal; we reverse and remand.

Before April 24, 1987, Culver, Senn, Lang, and Parker entered into an oral agreement to purchase approximately 57 acres of real property (“the property”) from Bobby J. Ellsworth, Bobbie B. Ells-worth, and Eloise D. Johnston. However, Johnston and the Ellsworths refused to sell the property to all four of them. Instead, Johnston and the Ellsworths agreed to sell the property to Lang and her husband, entering into an installment sales contract with Lang and her husband on April 24, 1987, which provided for a $3,000 down payment and 72 monthly payments in the amount of $527.86. Johnston and the Ellsworths conveyed the property to Lang and her husband by two warranty deeds delivered on the same day.

Culver, Senn, Lang, and Parker agreed to a division of the property based on each one’s ability to pay a proportionate share of the amount called for in the installment sales contract and agreed that each would receive specific parcels of the property. Pursuant to this agreement, Lang and Parker conveyed certain portions of the property to Culver and Senn. Lang and Parker have refused, however, to convey other portions of the property to Culver and Senn.

The installment sales contract has been paid in full. Culver and Senn paid approximately 60% of the down payment and monthly payments under that contract. Lang and Parker paid approximately 40% of the down payment and monthly payments under that contract.

On March 5, 2004, Culver and Senn filed a complaint against Lang and Parker, seeking a declaration of the parties’ rights and obligations under their agreement to divide the property, based, apparently, on Lang’s and Parker’s alleged refusal to transfer certain portions of the property to Culver and Senn as the four had agreed.

On June 2, 2004, Lang and Parker filed a motion to dismiss, asserting that the complaint failed to state a claim upon which relief could be granted because, they alleged, the action was barred by the statute of limitations and by the Statute of Frauds. The trial court granted Lang and Parker’s motion on January 27, 2005, without indicating the rationale for its decision. The trial court denied Culver and Senn’s postjudgment motion to set aside the dismissal. Culver and Senn appeal.

Our Supreme Court has set forth the standard that we are to apply in reviewing a dismissal pursuant to Rule 12(b)(6), Ala. R. Civ. P.:

“ ‘On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).’ ”

Marks v. Tenbrunsel, 910 So.2d 1255, 1258 (Ala.2005) (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993)).

Culver and Senn contend that the trial court erred when it granted the motion to dismiss because, they argue, in doing so, it failed to resolve all doubts concerning the sufficiency of allegations in their complaint in their favor. We agree. We have reviewed Culver and Senn’s complaint and are convinced that, although the complaint is not a model of clarity, when all of the doubts concerning the sufficiency of the allegations in the complaint are resolved in their favor, Culver and Senn appear to have stated a claim relating to an alleged breach of an agreement to convey portions of the property to them. They seek a declaration as to the rights, duties, and responsibilities of the parties under that agreement. See Ala.Code 1975, § 6-6-223.

As previously noted, Lang and Parker asserted in their motion to dismiss that Culver and Senn’s claim was barred by the affirmative defenses of the statute of limitations and the Statute of Frauds. A party can obtain a dismissal under Rule 12(b)(6), Ala. R. Civ. P., on the basis of an affirmative defense only when “ ‘the affirmative defense appears clearly on the face of the pleading.’ ” Jones v. Alfa Mut. Ins. Co., 875 So.2d 1189, 1193 (Ala.2003) (quoting Braggs v. Jim Skinner Ford, Inc., 396 So.2d 1055, 1058 (Ala.1981)); Williams v. Nash, 428 So.2d 96, 99-100 (Ala.Civ.App.1983).

The complaint does not disclose whether the agreement between the parties to divide the property proportionately was oral or in writing and it does not disclose the date on which Parker and Lang allegedly failed to abide by the agreement to divide the property. As a result, the statute of limitations and the Statute of Frauds do not clearly appear on the face of Culver and Senn’s complaint as defenses to their action. Thus, the trial court was precluded from dismissing Culver and Senn’s complaint on either of those bases and, to the extent that it did so, it erred.

Based on the foregoing, we reverse the trial court’s judgment and remand this case for further proceedings.

REVERSED AND REMANDED.

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

      . The complaint does not allege that this agreement related to the original oral agreement into which the parties entered for the purchase of the property with which Johnston and the Ellsworths refused to comply.

      . It is unclear from the record how Parker obtained her interest from Lang and Lang’s husband.

      . In contending that the complaint was due to be dismissed based on the Statute of Frauds, Lang and Parker relied on Ala.Code 1975, § 8-9-2, which reads in pertinent part:
      "In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:

      (5) Every contract for the sale of lands, tenements or hereditaments...."

      . We do not determine here, of course, whether Culver and Senn should ultimately prevail on their claim. We conclude only that, under the lenient pleading standards embodied in our Rules of Civil Procedure, Culver and Senn's complaint is not subject to dismissal for failure to state a claim.

      . Thus, we do not reach the additional grounds for reversal that Culver and Senn have advanced on appeal.