author: SEE, Justice.

text:
    RLI INSURANCE COMPANY v. MLK AVENUE REDEVELOPMENT CORPORATION.
    1031282.
    Supreme Court of Alabama.
    June 17, 2005.
    Rehearing Denied Oct. 14, 2005.

      James P. Green and Thomas H. Nolan, Jr., of Wright, Green, P.C., Mobile, for appellant.
    Norton W. Brooker, Jr., William E. Shreve, Jr., and S. Wesley Pipes of Lyons, Pipes & Cook, P.C., Mobile, for appellee.
   SEE, Justice.

RLI Insurance Company appeals from a judgment in favor of MLK Avenue Redevelopment Corporation (“MLK”). We affirm.

MLK purchased a tract of land in the City of Mobile to develop into a residential subdivision to be called F.D. Richardson Heights. MLK hired Polysurveying of Mobile, Inc., a professional engineering firm, to prepare plans and specifications for the development, to handle bids and to award the contract for construction of the water, sewer, and street improvements, and to provide instructions and directions relative to the execution of the work. R.P. Colquett, Inc. (“Colquett”), was awarded the construction contract, which required Colquett to complete the project in 60 days. RLI issued a performance bond on the contract naming Colquett as principal and MLK as owner or obligee of the bond.

After Colquett began construction, MLK’s soils engineer, Geotechnical Engineering-Testing, Inc. (“GET”), discovered unsuitable soils on the site that needed to be excavated, removed, and replaced. The project engineer, Craig Bryant of Polysur-veying, recommended that the additional work be performed. MLK approved a written change order, which the contract required, for payment of an additional $18,768 to remedy the unsuitable soil condition. The additional work apparently was performed, and MLK paid Colquett for this work. GET later recommended excavation and backfilling in other areas on the site. The project engineer testified that he orally advised MLK of the need for this extra work and that MLK orally approved it. Based on MLK’s alleged oral approval, the project engineer instructed Colquett to perform the work, and Col-quett performed it without insisting on a written change order. However, MLK has refused to pay for the work; MLK denies that it orally approved the second change order for excavation and backfilling, and it contends that Colquett did not perform a significant amount of this extra work.

The contract provides that the project was to be completed in November 1999. Around that time, GET tested the concrete used in the improvements at the project, the subsoils or base used under the roads, and the asphalt road. GET found that Colquett’s work was in compliance with the project requirements. In January 2000, the project engineer wrote to the City of Mobile Engineering Department and requested a final inspection of the project, which was necessary for the plat of the streets and improvements to be accepted by the City and recorded. After inspecting the project, the city engineer requested that additional work be performed. On February 23, 2000, the project engineer wrote to the City of Mobile Engineering Department once again, stating, “It is my opinion that this job was constructed in accordance with the approved drawings and the City of Mobile Standards.” In response, the city engineer wrote to the project engineer: “I respectfully disagree with your assessment that the F.D. Richardson subdivision was constructed in accordance with the approved drawings and to City of Mobile standards.” The city engineer listed a number of corrective measures that “must be taken prior to the City of Mobile accepting the subdivision for maintenance.” Colquett protested the list of items but apparently performed some further work. On April 6, 2000, the work apparently having been found acceptable to the city engineer, the subdivision plat was recorded. RLI contends that this recording constituted acceptance of the subdivision by the City of Mobile for purposes of maintaining the subdivision.

Some time after the subdivision plat was recorded, problems developed with the improvements Colquett had constructed. The record is unclear as to when the problems began to appear, but on February 14, 2002, the city engineer sent MLK a letter stating that the City of Mobile “requires that [certain] reconstruction work be performed in order to bring the subdivision up to standards,” and listing specific items that needed to be corrected to bring the subdivision up to standards. Colquett refused to perform any further work. MLK turned to RLI under the performance bond, but RLI refused to have the work completed or to pay MLK the cost of having the work completed.

MLK sued RLI, seeking specific performance under the performance bond. MLK alleged that “the city of Mobile refused to take over maintenance of the subject streets, gutters and drains because of numerous deficiencies they discovered upon inspection ... [which] were caused by Colquett’s failure to follow the plans and specifications and were due to poor workmanship.” MLK alleged that it had informed Colquett of the “deficiencies discovered by the city” but that Colquett had refused to make the “improvements necessary to insure compliance” with the contract requirements. MLK alleged that RLI was required under the performance bond to hire a new contractor to complete the work and that it had demanded performance but that RLI had refused to perform under the bond. MLK alleged that it had suffered lost revenues and sales as a result of RLI’s failure to perform, that the City has refused to accept maintenance of the streets, drains, and gutters in the subdivision, and that RLI has a duty to complete the necessary changes to the streets, drains, and gutters. MLK asked the trial court to order RLI to hire a new contractor to complete the work, and it also sought incidental damages, attorney fees, and costs.

After a trial at which evidence was presented ore tenus, the trial court found that, under the contract between Colquett and MLK, Colquett was to “construct the subdivision in a good and workmanlike manner, in accordance with the plans and specifications, and in compliance with the State Highway Department of Alabama Standard Specifications for Highway Construction, 1992 edition and the Mobile City Area Water & Sewer Service System/Standard Specifications.” The trial court concluded that there are several defects in the project and that “these defects are the result of R.P. Colquett’s failure to construct the project in a workmanlike manner, and in accordance with the contract.” The trial court described the scope of the work to be performed in a list of 18 items that is essentially the same list as the February 14, 2002, list prepared by the City of Mobile. RLI appeals.

I.

RLI argues that MLK has suffered no damage because, it argues, the streets and improvements became the property of the City after the subdivision plat was recorded, and neither the City nor the residents of the subdivision have sued MLK. Therefore, RLI argues, MLK is not the real party in interest and has no standing to sue. MLK argues that RLI waived those arguments because RLI did not present them to the trial court. Neither MLK nor RLI distinguishes in its brief the argument that MLK lacked standing to sue from the argument that MLK is not the real party in interest. However, there are “fundamental differences between the principles of ‘real party in interest’ and ‘standing.’ ” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1027 (Ala.1999). “ ‘[Objections to standing, unlike Rule 17(a) objections [that a plaintiff is not the real party in interest], cannot be waived.’ ” 740 So.2d at 1028 n. 1. We will not consider RLI’s argument that MLK is not the real party in interest, because that argument is asserted for the first time on appeal and has thus been waived; however, we will consider RLI’s argument that MLK lacks standing to sue.

RLI argues that MLK lacks standing to sue because, according to RLI, MLK has suffered no damage as a result of Colquett’s alleged breach of the contract. However, it is well settled that an action based on a breach of contract will lie even where the plaintiff has suffered no actual damage. Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1120 (Ala.2003) (citing Knox Kershaw, Inc. v. Kershaw, 552 So.2d 126, 128 (Ala.1989), and James S. Kemper & Co. v. Cox & Assocs., Inc., 434 So.2d 1380, 1385 (Ala.1983)). “This is so, because ‘ “[a]n unexcused failure to perform a contract is a legal wrong. Action will lie for the breach although it causes no injury.... The party whose legal right has been invaded by such breach is entitled to at least nominal damages, for the law recognizes that every injury imports damages.” ’ ” Avis Rent A Car, 876 So.2d at 1120, quoting Cooley v. Gulf Bank, Inc., 773 So.2d 1039, 1048 (Ala.Civ.App.1999) (Crawley, J., concurring in part and dissenting in part) (quoting in turn 11 Williston on Contracts § 1339A, at 206, 208 (3d ed.1968)) (emphasis added in Avis).

In Avis, the plaintiff, Heilman, rented a car from Avis and was reimbursed by her employer for the rental fee she had paid Avis. Avis argued that because Heilman had been reimbursed by her employer for the rental fee, and because that was the measure of her damages, she lacked standing to sue Avis. This Court held that Heil-man had standing to sue; the fact that she had been reimbursed for the cost of the rental — her actual damage — -did not deprive her of standing to assert a breach-of-contract claim against Avis.

MLK is the promisee of Colquett’s performance under the contract. Thus, Colquett’s alleged breach of the contract constitutes an invasion of a legally protected interest of MLK. Therefore, even assuming that MLK has suffered no actual damage as a result of Colquett’s alleged breach, Colquett’s alleged unexcused failure to perform the contract is a legal wrong. See Avis, 876 So.2d at 1120. RLI’s argument that MLK lacks standing because it has suffered no damage is, therefore, without merit.

II.

RLI argues that the trial court erred in interpreting the contract to require reconstruction in accordance with the opinions of the city engineer for the City of Mobile, instead of in accordance with those of the project engineer. RLI asserts that in the project engineer’s February 23, 2000, letter to the city engineer, the project engineer certified the project as completed in compliance with the project requirements. Because, says RLI, under the contract between Colquett and MLK, the project engineer’s opinion is to be final and conclusive, the trial court erred in interpreting the contract to require the work on the project to be performed in accordance with the opinions of the city engineer.

“ ‘[W]e apply a de novo review to a trial court’s determination of whether a contract is ambiguous and to a trial court’s determination of the legal effect of an unambiguous contract term.’ ” Mobile Eye Ctr., P.C. v. Van Buren P’ship, 826 So.2d 135, 138 (Ala.2002) (quoting Winkleblack v. Murphy, 811 So.2d 521, 525-26 (Ala.2001)). RLI does not contend that the contract is ambiguous. In any event, “[a] court must construe a contract in its entirety, and single provisions of sentences are not to be dissociated from others having reference to the same subject matter.” England’s Flying Serv., Inc. v. Mobile Airport Auth., 536 So.2d 1371, 1373 (Ala.1988) (citing City of Albany v. Spragins, 208 Ala. 122, 93 So. 803 (1922); Brush Elec. Light & Power Co. v. City Council of Montgomery, 114 Ala. 433, 21 So. 960 (1896)).

RLI points to several provisions of the contract, quoting, however, only the language emphasized below. Section 6.11 of the contract, entitled “Permits and Regulations” provides:

“[Colquett] shall and will, in good workmanlike manner, do and perform all work and furnish all supplies and materials, machinery, equipment, facilities and means, except as herein otherwise expressly specified, necessary to properly perform and complete all the work required by this contract, within the time herein specified in accordance with the directions of the [project] Engineer as given from time to time during the progress of the work. ... [Colquett] shall observe, comply with, and be- subject to, all terms of the specifications and shall do, carry on, and complete the entire work to the satisfaction of the [project] Engineer and the Owner [MLK].”

(Emphasis added.)

Section 6.12 of the contract, entitled “Contractor’s Obligations,” provides:

“[Colquett] shall and will, in good workmanlike manner, do and perform all work and furnish all supplies and materials, machinery, equipment, facilities and means, except as herein otherwise expressly specified, necessary to properly perform and complete all the work required by this Contract, within the time herein specified in accordance with the directions of the [project] Engineer as given from time to time during the progress of the work. ... [Colquett] shall observe, comply with, and be carry on [sic], and complete the entire work to the satisfaction of the [project] Engineer and the Owner [MLK].”

(Emphasis added.)

Section 6.25 of the contract, entitled “Correction of Work,” provides:

“All work, all materials, whether incorporated in the work or not, all processes of manufacture, and all methods of construction shall be at all times and places subject to the inspection of the [project] Engineer who shall be the final judge of the quality and suitability of the work, materials, processes of the manufacturer, and methods of construction for the purposes for which they are used. Should they fail to meet his approval, they shall be forthwith reconstructed, made good, replaced and/or corrected, as the case may be by [Colquett] at his own expense. Rejected material shall immediately be removed from the site. If, in the opinion of the [project] Engineer, it is undesirable to replace any defective or damaged materials or [to] reconstruct or correct any portion of the work injured or not performed in accordance with the Contract Documents, the compensation to be paid to [Colquett] hereunder shall be reduced by such amounts considered by the judgment of the [project] Engineer as equitable.”

(Emphasis added.)

Section 6.39 of the contract, entitled “Engineer’s Authority” provides:

“The [project] Engineer shall give all appropriate instructions and directions contemplated under the contract and specifications relative to the execution of the work. The [project] Engineer shall determine the amount, quality, acceptability, and fitness of the several kinds of work and materials which are to be paid for under this contract and shall decide all questions which may arise in relation to said work and the construction thereof. The [project] Engineer’s estimates and decisions shall be final and conclusive, except as herein otherwise expressly provided. In case any question shall arise between the parties hereto relative to said contract or specifications, the determination or decision of the [project] Engineer shall be a condition precedent to the right of [Colquett] to receive any money or payment for work under this contract affected in any manner or any extent by such questions.
“The [project] Engineer shall decide the meaning and intent of any portion of the specifications and of any plans or drawings where the same may be found obscure or be in dispute. Any differences or conflicts in regard to their work which may arise between [Colquett] under this Contract and other Contractors performing work for [MLK] shall be adjusted and determined by the [project] Engineer.”

(Emphasis added.)

RLI’s argument that the approval of the project engineer is final and conclusive misses other express contract language. As MLK points out in its responsive brief, Section 6.39 of the contract, quoted above, states that the project engineer’s decisions shall be final and conclusive, “except as herein otherwise expressly provided.” Sections 6.11 and 6.12 both state that the “Contractor shall ... complete the entire work ... to the satisfaction of the [project] Engineer and the Owner [MLK].” RLI fails to address the meaning of these provisions. RLI does not explain how the requirement that the work be completed to the satisfaction of “the Owner” leaves the final and conclusive approval in the hands of the project engineer; it also fails to explain how the language apparently limiting the project engineer’s decisions — “except as herein otherwise expressly provided” — does not in fact limit the finality of his or her decisions. Therefore, we reject RLI’s argument that the project engineer’s certification and his testimony are final and conclusive evidence that the project was completed according to specifications. See Bruce v. Cole, 854 So.2d at 56 (“Bruce’s argument ... disregards or ignores, contrary to the rules of construction, an express term of the contract. Therefore, this Court must reject this argument.”).

Moreover, the trial court’s decision does not rest on whether the contract was to be performed to the satisfaction of the project engineer, the city engineer, or the owner. The trial court simply concludes that Colquett was required under the contract to “construct the subdivision in a good and workmanlike manner, in accordance with the plans and specifications, and in compliance with the State Highway Department of Alabama Standard Specifications for Highway Construction, 1992 edition and the Mobile City Area Water & Sewer Service System/Standard Specifications,” and that, as a result of Colquett’s failure to construct the project “in a workmanlike manner, and in accordance with the contract,” there are several defects in the project. The “General Guaranty” section of the contract provides that the project engineer’s final certification shall not constitute acceptance of work not done in accordance with the contract or relieve Colquett of liability for faulty workmanship. In addition, Colquett was required by the contract to remedy any defects in work and to pay for any damage resulting from faulty workmanship that appeared within one year of the date of final acceptance. Thus, even if the trial court found, as RLI presumes it did, that the project engineer’s final certification was conclusive under the contract as to the completion of the project, Colquett remained liable for any problems covered by the General Guaranty provision of the contract RLI concedes that Colquett’s obligations under the General Guaranty provision of the contract are covered by the performance bond.

III.

RLI argues that even if this Court determines that the trial court correctly held that RLI breached its duty under the performance bond the trial court applied the wrong measure of damages in awarding MLK the costs to correct the defects and that the judgment constitutes, therefore, economic waste. RLI asserts that the proper measure of damages in this case is diminution in value — that is, the difference between the value of the improvements as constructed and their value had the improvements been constructed in a workmanlike manner — because, RLI contends, correction of the defects would amount to economic waste. We reject this argument because it was never presented to the trial court.

This Court does not consider an argument for purposes of reversing the judgment of a trial court when that argument was never presented to the trial court. State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.2005). See McDonald v. Schwartz, 706 So.2d 1230 (Ala.Civ.App.1997) (refusing to reverse the trial court’s award of damages based on the estimated cost of repairing the residence rather than on the difference between its fair-market value as it was constructed and its fair-market value had it been properly constructed, because the issue did not appear to have been brought to the attention of the trial court). In its post-trial brief, RLI appears to have conceded that the proper measure of damages is the cost of remedying any deficient or defective work. RLI did not file any postjudgment motion after the entry of the trial court’s judgment awarding MLK the amount of the bond, or, alternatively, allowing RLI to have the work performed if it could do so for a lesser amount. Therefore, because it was not raised in the trial court, we reject RLI’s argument that the measure of damages applied was incorrect.

IV.

RLI argues that the trial court erred in failing to reduce the damages awarded to MLK by the amount of the unpaid contract retainage and/or the amount claimed for extra work performed. The contract states that “to insure the proper performance of this Contract, [MLK] shall retain ten (10%) percent of the amount of each estimate until final completion and acceptance of all work.” MLK argues that “final completion and acceptance” never occurred and that, therefore, Colquett was not entitled to the retained amounts. RLI, citing Bruner v. Hines, 295 Ala. 111, 324 So.2d 265, 269 (1976), responds that, under the contractual doctrine of substantial performance, if Colquett’s performance substantially fulfilled the main purpose of the contract, it can enforce MLK’s promise to pay. RLI then asserts that because the trial court did not find the absence of substantial performance, it is entitled to an offset equal to the retained amount.

RLI’s argument is premised on an assumption that Colquett substantially performed the contract. Whether a promise has been substantially performed is a question of fact to be determined from the circumstances- of the case. Cobbs v. Fred Burgos Construction Co., 477 So.2d 335, 338 (Ala.1985). “ ‘When a trial court makes no specific findings of fact, this Court will assume that the trial judge made those findings necessary to support the judgment.’” New Properties, L.L.C. v. Stewart, 905 So.2d 797, 799 (Ala.2004) (quoting Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992)). Under the ore tenus rule, when evidence is presented ore tenus, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness and the judgment will not be reversed unless “ ‘found to be ' plainly and palpably wrong.’ ” Transamerica, 608 So.2d at 378 (quoting Fitzner Pontiac-Buick-Cadillac, Inc. v. Perkins & Assocs., Inc., 578 So.2d 1061, 1063 (Ala.1991)). “ ‘The trial court’s judgment in such a case will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’ ” Transamerica, 608 So.2d at 378 (quoting Clark v. Albertville Nursing Home, Inc., 545 So.2d 9,13 (Ala.1989)).

Assuming RLI’s legal argument is correct — that substantial performance would entitle it to the retained amounts — the trial court’s judgment is nonetheless correct if it found that there was not substantial performance. We cannot say, based on the record before us, that such a finding would be plainly and palpably wrong; there was credible evidence to support such a finding. The February 14, 2002, letter from the city engineer to MLK indicated that a significant amount of work— so significant that RLI asserts it amounts to reconstruction of the project — had to be performed to bring the project into compliance with the contract requirements and the standards of the City of Mobile.

RLI also argues that the trial court erred in refusing to allow it an offset for the extra work performed by Colquett for which MLK did not pay. The trial court gave three reasons for determining that RLI was not entitled to an offset for the extra work allegedly performed by Colquett: (1) “there is sufficient evidence to suggest that a significant amount of work called for in this change order was never performed”; (2) the extra work “was never approved, either orally or in writing by MLK”; and (3) “the amount of the change order is almost totally offset by the amount of liquidated damages owed to MLK from Colquett for its failure to complete the project in a timely manner.” We note again that “ ‘this Court will assume that the trial judge made those findings necessary to support the judgment,’ ” New Properties, 905 So.2d at 799, and that, under the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness and the judgment will not be reversed unless those findings are plainly and palpably wrong. Transamerica, 608 So.2d at 378.

The evidence offered by MLK indicates that MLK was entitled to liquidated damages of $27,600 because Colquett failed to complete the project within the time provided in the contract. Such a finding, combined with a finding that a “substantial amount of the extra work had never been performed” would indicate that RLI’s claim for extra work in the amount of $33,248 was entirely offset by liquidated damages and the amount of extra work not performed. We cannot say that the trial court’s findings are plainly and palpably wrong; therefore, we will not reverse the judgment of the trial court on this asserted error.

V.

RLI argues that MLK is es-topped from claiming that Colquett should reinstall pipes and underdrain and rebuild the road and the road base, because the city engineer and the project engineer certified that those improvements had been constructed in compliance with the contract and with the standards established by the City of Mobile. In response, MLK argues that estoppel is an affirmative defense that must be specially pleaded, pursuant to Rule 8(a), Ala. R. Civ. P. RLI asserts that it did plead the affirmative defense of estoppel and points to the following statement from the section of its answer designated “Affirmative Defenses”: “RLI affirmatively asserts that the work performed by Colquett was inspected, approved and accepted by the project engineer on behalf of [MLK].” However, “[t]he facts constituting the defense of es-toppel must be set forth with particularity.” Ex parte Luverne Geriatric Ctr., Inc., 480 So.2d 562, 568 (Ala.1985) (citing Kimbrell v. City of Bessemer, 380 So.2d 838 (Ala.1980)).

“ ‘The rule is that every plea in estoppel must be certain in every particular and must allege the facts upon which the plea is predicated, and must allege every material fact which the pleader expects to prove in support of the plea. Conclusions of the pleader, not supported by a statement of facts from which the conclusions are drawn, will not suffice.’ ”

Kimbrell, 380 So.2d at 839 (quoting Industrial Sav. Bank v. Greenwald, 229 Ala. 529, 535, 158 So. 734, 739 (1935)). If RLI sufficiently pleaded the defense of estop-pel, it did so only as to the actions of the project engineer; RLI asserted no facts in its answer as to whether the city engineer accepted the project. Therefore, we will limit any further review to RLI’s assertion that MLK is estopped by the actions of the project engineer.

RLI’s argument, limited in that respect, is that MLK is estopped from claiming that additional work needs to be done on the project because the project engineer, allegedly aware that certain pipe was not installed as the city engineer wanted, certified that the improvements were in compliance with the contract and with the City’s requirements. In support of its estoppel argument, RLI cites only Mazer v. Jackson Insurance Agency, 340 So.2d 770, 773 (Ala.1976), which recites the following as the basic elements of estoppel: (1) the actor, who usually must have knowledge of the true facts, communicates something in a misleading way, either by words, conduct, or silence; (2) the other party relies on that communication; and (3) that other party would be harmed materially if the actor is later permitted to assert any claim inconsistent with his earlier conduct.

, RLI does not argue, or cite any authority for, the proposition that the project engineer’s alleged knowledge should operate to estop MLK from making a claim under the contract. See Mazer, 340 So.2d at 772. In addition, the “true fact” allegedly known to the project engineer — that pipes were not installed as the city engineer required — was also known to Col-quett. Before the City accepted the plat, the city engineer recommended that Col-quett remove the detention piping and reinstall the system in accordance with the approved plans and the manufacturer’s recommendations. Instead, Colquett and the project engineer assured the city engineer that the sand and sediment in the pipes were due to surface runoff during the construction process. Therefore, the city engineer required Colquett only to clean out the sand and sediment. After the plat was approved, it became apparent that the problem was not the result of surface runoff. Because RLI does not adequately support its argument, and because the facts in the record indicate that the argument is without merit, we will not reverse the trial court’s judgment on the error RLI asserts.

VI.

Finally, RLI argues that the judgment is not supported by the evidence. However, RLI did not preserve this argument for appellate review. “[I]n a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review. New Properties, 905 So.2d at 801-02 (citing Rule 52(b), Ala. R. Civ. P.; N.L.H. v. State, 873 So.2d 258 (Ala.Crim.App.2003); Cross v. Cross, 853 So.2d 241 (Ala.Civ.App.2002); Gates v. Gates, 830 So.2d 746 (Ala.Civ.App.2002); and M.B. v. State, 630 So.2d 490, 491 n. 3 (Ala.Crim.App.1993)). The record does not reflect that RLI made any such motion. Thus, this argument is not preserved for review.

Conclusion

RLI having demonstrated no error on the part of the trial court, we affirm its judgment.

AFFIRMED.

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

      . Pursuant to Ala.Code 1975, § 35-2-52, “[it] shall be the duty of every probate judge in this state to decline to receive for record in his office any map or plat upon which any lands lying within the corporate limits ... of any city of this state ... are platted or mapped as streets ... unless such map or plat shall have noted thereon the approval of the governing body or city engineer of such city.” The recorded plat bears the signature of the city engineer for the City of Mobile.

      . As noted previously, the trial court apparently derived the 18 items it lists in its judgment as needing to be corrected from the city engineer's February 14, 2002, letter to MLK, hence, RLI’s assertion that the trial court's judgment is based on the opinions of the city engineer.

      . See Bruce v. Cole, 854 So.2d 47, 56 (Ala.2003) ("Bruce's argument that the [contract] can be interpreted to contemplate only his voluntarily terminating his own employment disregards or ignores, contrary to the rules of construction, the express term ‘involuntary.’

      . Section 6.43 of the contract, entitled "General Guaranty," states in full as follows:
      "Neither the final certificate of payment, nor any provision in the Contract Documents, nor partial or entire occupancy of the premises by the Owner [MLK] shall constitute acceptance of work not done in accordance with the Contract Documents or relieve [Colquett] of Liability in respect to any expressed warranties or responsibility for faulty materials or workmanship. [Colquett] shall remedy any defects in work and pay for any damage to the work resulting therefrom, which shall appear within a period of one year from date of final acceptance of the work unless a longer period is specified. The Owner[] [MLK] will give notice of observed defects with reasonable promptness."

      .RLI's argument depends on the project engineer’s "certification” that the project was completed in compliance with the contract requirements. RLI contends that the February 23, 2000, letter from the project engineer to the City of Mobile Engineering Department stating that "[i]t [was his] opinion that this job was constructed in accordance with the approved drawings and the City of Mobile standards” constitutes the project engineer’s certification. However, § 6.55 of the contract describes final certification as follows:
      "Final payment shall be due thirty (30) days after issuance of final certificate, provided the work be then fully completed and the contract fully performed.
      "Within ten (10) days after receipt of written' notice that the work is ready for final inspection and acceptance, [Colquett], [project] Engineer, and the Owner [MLK] shall make such inspection, and when the work is found acceptable under the terms of this contract, the [project] Engineer shall issue the final certificate in writing stating that the work provided for in the contract has been completed and is accepted and the terms and conditions thereof.
      "Before issuance of the final certificate, [Colquett] shall submit evidence satisfactory to the Owner [MLK] that all payroll, materials, bills, and other indebtedness connected with the work have been paid and that he has advertised and met all State, County, and City Codes, and other requirements.. ..”
      We are not convinced that the February 23, 2000, letter from the project engineer to the City of Mobile constitutes a "final certificate.” Section 6.55 contemplates that the project engineer will issue a final certificate to the contractor. The project engineer sent the February 23, 2000, letter to the City of Mobile. The City of Mobile responded to the letter by taking exception to the project engineer’s statement that the project was in compliance with the City’s requirement and indicating certain items that needed to be remedied. After it appeared to the City that those remedial measures had been taken, the City accepted the project. However, there is no indication that thereafter the procedures leading up to the issuance of a final certificate were completed, or that the project engineer thereafter issued a written "final certificate.”

      . RLI acknowledges that the contract contains a warranty provision and that its performance bond covers Colquett’s warranty obligations. It states in its post-trial brief to the trial court: "The performance bond guarantees the full and complete performance of all its contract provisions by its principal Col-quett. Accordingly, assuming there to be outstanding warranty obligations, those would be covered by the performance bond.” RLI admits in its briefs that certain work is due to be performed pursuant to the warranty. RLI does not refer to § 6.43 (or any other section) of the contract as constituting the warranty. However, MLK refers in its brief to § 6.43, entitled "General Guaranty,” as the warranty provision of the contract; RLI does not dispute that reference.

      . RLI argues elsewhere in its brief that MLK failed to give timely notice. However, that argument is not adequately supported. Pursuant to § 6.43 of the contract quoted above, the guaranty period begins "from the date of final acceptance of the work unless a longer period is specified.” RLI suggests that this guaranty period should begin in February or April 2000; RLI states that the work was "certified to be in compliance with the contract and City requirements” in February 2000 and that the plat was recorded on April 6, 2000. RLI provides no reference to the record to support its statement that the work was certified as compliant in February 2000. It apparently is referring to the February 23, 2000, letter from the project engineer to the city engineer which, as noted in footnote 5 above, we are not convinced is a final certification. In addition, RLI does not provide any facts or argument regarding when the defects appeared and thus does not even attempt to show that the defects appeared after the guaranty period had expired. Notice is required with reasonable promptness after the defects are observed. RLI states that "the City had testing done, in January of 2001 ... and reports and/or discussions of the testing were communicated to RLI.” Thus, we might infer that defects were observed within one year of February 2000. In any event, we will not endeavor further to determine from the record whether notice of defects was timely. "[T]his Court is not under a duty to search the record in order to ascertain whether it contains evidence that will sustain a contention made by either party to an appeal.” Totten v. Lighting & Supply, Inc., 507 So.2d 502, 503 (Ala.1987).

      .MLK responds that the diminution-in-value measure of damages is inapplicable in this case because, it argues, public facilities, such as streets, sewer systems, and utility pipes, have no market value. MLK cites Tuscaloosa County v. Jim Thomas Forestry Consultants, Inc., 613 So.2d 322, 324 (Ala.1992) ("[A] consideration of damages for the destruction of an inherently unmarketable structure in the context of market value represents a contradiction in terms. Damages for the destruction of the Whittson bridge cannot, therefore, be computed on the basis of market value.". We need not decide whether this argument is meritorious.

      . RLI argued in its post-trial brief that the only contractual breach possible was a breach of warranty, that the project engineer identified six specific items as warranty items, and that Colquett testified that the amounts reasonably necessary to correct these warranty items was approximately $11,000, or a maximum of $15,000.

      . RLI did move the trial court, post-trial, to reconsider a prior ruling and to conform the pleadings to the evidence. However, RLI did not argue any damages issue in that post-trial motion.

      . RLI does not attempt to explain or define the term "contract retainage” in its brief.

      . As we discuss in footnote 5, whether final completion and acceptance ever occurred is uncertain.

      . Neither Bruner nor the other authority RLI cites addresses contractual provisions relating to retainage.

      .Although there was testimony indicating that a lesser amount of work could bring the project into compliance, it was for the trial court to determine the weight and credibility of that testimony. Wheeler v. Marvin's, Inc., 593 So.2d 61, 63 (Ala.1991).

      . MLK asserts that it also discussed estoppel in its trial briefs and that testimony elicited during the trial related to estoppel. MLK moved the trial court, post-trial, to amend the pleadings to conform to the evidence, pursuant to Rule 15(b), Ala. R. Civ. P. The trial court denied that motion. RLI does not address that ruling on appeal.


source: Caselaw Access Project

license: Public Domain

text:
    PARKER BUILDING SERVICES COMPANY, INC. v. Shiann LIGHTSEY, as mother and next friend of her minor child Kace LIGHTSEY.
    1031377.
    Supreme Court of Alabama.
    June 17, 2005.
    Rehearing Denied Oct. 14, 2005.

      R. Larry Bradford and Shane T. Sears of Bradford Law Firm, P.C., Birmingham; and Warren B. Lightfoot, William H. Brooks, and Ivan B. Cooper of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellant.
    J. Gusty Yearout, William P. Traylor III, and Jason L. Yearout of Yearout & Traylor, P.C., Birmingham, for appellee.
   SEE, Justice.

This case was tried before a jury, which returned a verdict in favor of the plaintiff Shiann Lightsey, as mother and next friend of her minor child Kace Lightsey. The trial court entered a judgment on the jury’s verdict, and Parker Building Services Company, Inc., the defendant below, moved for a new trial. The trial court denied the motion. Parker Building appeals. We reverse and remand.

I.

On May 1, 2001, Kace Lightsey, a five-year-old boy, went with his older sister and their mother, Shiann Lightsey, to a facility in Homewood, Alabama, used by the Alabama Academy of Fast Pitch Softball. Kace’s older sister was attending batting practice at the facility, and Kace was playing on the observation deck. At some point while he was playing, Kace crawled under the guardrail of the observation deck and stepped onto the adjacent ceiling that covered a bathroom. The ceiling caved in, and Kace fell to the bathroom floor, hitting his head. As a result of his head injury, Kace suffered a stroke that led to permanent paralysis on the left side of his body.

In March 1999, Equity Investments, Ltd., the owner of the facility, had hired Parker Building to perform some repairs to the facility — patching drywall, putting in new ceiling tile, filling in a concrete trench, and relocating the stairs. The guardrail on the observation deck was not among the repairs Equity Investments asked Parker Building to perform. However, the guardrail was in the area affected by the work performed by Parker Building. At that time, the facility was vacant, and Alabama Academy was not yet a tenant of the facility-

At the time Parker Building was performing repairs to the facility, the City of Homewood had adopted ordinance no. 1778, which required a permit for repair jobs, and ordinance no. 1790, which adopted the 1991 version of the Standard Building Code. The Building Code specified different standards for buildings depending upon their intended use. To be in compliance with Homewood’s ordinance no. 1778 and the Building Code, Parker Building should have obtained a permit for the repair job and contacted an inspector for the City of Homewood to complete an inspection after Parker Building had finished the repairs. Parker Building, however, failed to obtain a permit or to have an inspector inspect the finished work. According to an inspector for the City of Homewood, he would have inspected the affected work area, including the guardrail on the observation deck, and determined if the area complied with the Building Code. An inspector for the City of Homewood testified at trial that the guardrail around the observation deck met the requirements in the Building Code for a building used as a warehouse but failed to meet the requirements for a building used for public assembly; he further testified that, based on the condition of the guardrail, he would have rejected the work if he had known the building would be used for public assembly. Such a rejection would have required Equity Investments or Parker Building to bring the guardrail into compliance with the Building Code for a building used for public assembly.

After Race’s accident, Shiann Lightsey sued Parker Building, Equity Investments, the Alabama Academy of Fast Pitch Softball, and Holly Vance, the owner of the Academy. Equity Investments and the Academy entered into a pro tanto settlement with Lightsey for $6,400,000, and they were dismissed from the case. The record appears to indicate that Vance was dismissed when Equity Investments and Alabama Academy were dismissed. Lightsey proceeded to trial against Parker Building on a negligence claim.

The first trial resulted in a hung jury. On March 1, 2004, the second trial began. At the second trial, the trial court charged the jury on negligence per se as to Parker Building’s violation of the provisions of the Building Code relating to the permit fee, permit application, and guardrails. Before and after the trial court’s instructions, Parker Building objected and requested that the trial court charge the jury on prima facie negligence. The trial court denied Parker Building’s request.

The jury returned a verdict for Lightsey and against Parker Building and awarded Lightsey $8,000,000. The jury then credited $6,400,000, that Lightsey had received from settling with Equity Investments and the Academy, and rendered a verdict for Lightsey for the balance of $1,600,000. Parker Building moved for a new trial, arguing that it was error for the trial court to charge the jury on negligence per se. The trial court denied the motion.

Parker Building appeals. We reverse the trial court’s judgment and remand for further proceedings.

II.

There is a strong presumption that a trial court’s ruling on a motion for a new trial is correct. Alabama Dep’t of Transp. v. Land Energy, Ltd., 886 So.2d 787, 792 (Ala.2004). The trial court’s ruling on a motion for new trial “ ‘should not be disturbed on appeal unless the record plainly and palpably shows that the trial court erred and that some legal right has been abused.’ ” 886 So.2d at 792 (quoting McBride v. Sheppard, 624 So.2d 1069, 1070-71 (Ala.1993)). However, we review a ruling on a question of law de novo. Ex parte Forrester, 914 So.2d 855, 858 (Ala.2005).

m.

We note that these facts present a case of first impression. This Court has never addressed the issue whether a violation of a standard building code adopted by a city ordinance constitutes negligence per se.

The doctrine of negligence per se or negligence as a matter of law arises from the premise that the legislature may enact a statute that replaces the common-law standard of the reasonably prudent person with an absolute, required standard of care. Thomas Learning Ctr., Inc. v. McGuirk, 766 So.2d 161, 171 (Ala.Civ.App.1998). When the legislature adopts such a statute, anyone who violates it and causes an injury to a person whom the statute was intended to protect is liable for negligence per se. Id. Proof of a violation of the statute is proof of negligence. Id.

We note, first, that the doctrine of negligence per se is applicable to a violation of an ordinance as well to violation of a statute. See Keeton v. Fayette County, 558 So.2d 884, 887 (Ala.1989)(stating that violation of a statute or an ordinance may be negligence per se); Simpson v. Glenn, 264 Ala. 519, 521, 88 So.2d 326, 327 (1956)(holding that there is no distinction between violation of a statute and violation of a municipal traffic ordinance in applying the doctrine of negligence per se).

However, not every violation of a statute or an ordinance is negligence per se. This Court has stated that four elements are required for violation of a statute to constitute negligence per se: (1) The statute must have been enacted to protect a class of persons, of which the plaintiff is a member; (2) the injury must be of the type contemplated by the statute; (3) the defendant must have violated the statute; and (4) the defendant’s statutory violation must have proximately caused the injury. Fox v. Bartholf, 374 So.2d 294, 295 (Ala.1979).

The first element requires that the statute have been enacted to protect a class of persons. This Court has stated that a class of persons is to be distinguished from the general public. Thomas Learning, 766 So.2d at 171. Parker Building argues that negligence per se is inapplicable in this case because, it argues, the Building Code was adopted for the benefit of the general public and not for the benefit of a class of persons. Lightsey argues that the Building Code was adopted for a class of persons, specifically those within the “built environment.” We agree with Parker Building that the purpose of this Building Code is to protect the general public and that negligence per se is therefore inapplicable in this case.

The Building Code applicable in this case states:

“101.2.1 General. This Code is hereby declared to be remedial, and shall be construed to secure the beneficial interests and purposes thereof — which are public safety, health, and general welfare — through structural strength, stability, sanitation, adequate light and ventilation, and safety to life and property from fire and other hazards attributed to the built environment including alteration, repair, removal, demolition, use and occupancy of buildings, structures, or premises, and by regulating the installation and maintenance of all electrical, gas, mechanical and plumbing systems, which may be referred to as service systems.”

The purpose of the Building Code is to protect the public generally; the Building Code does not delineate a specific class of persons it seeks to protect distinguishable from the public.

In determining the purpose of the Building Code, we give the words used in the Building Code their plain, ordinary, and commonly understood meaning and we interpret the language to mean what it says. See Ex parte Gadsden Reg’l Med. Ctr., 904 So.2d 234, 236 (Ala.2004)(stating that the words in a statute are given their plain, ordinary, and commonly understood meaning, and the statute must be interpreted to mean what it says when plain language is used). Section 101.2.1 of the Building Code states, first, that the Building Code is to be construed as remedial, and second, that it is intended to secure “public safety, health, and general welfare.”

The purposes to be served by the Building Code of “public safety, health, and general welfare” refer to the public generally. See, e.g., Thomas Learning, 766 So.2d at 171 (holding that the language in § 34-8-20, Ala. Code 1975, “ ‘in order to safeguard life, health, and property, and to promote the general public welfare,’ ” refers to the public generally).

We also construe the phrase “safety to life and property” in section 101.2.1 to refer to the general public, and not to a particular subset of persons who may be in a building at a particular time. First, the “safety to life and property” phrase immediately follows the clause defining the purpose of the Building Code, and it describes the means by which that purpose is to be achieved. Second, nothing in the words “through structural strength, stability, sanitation, adequate light and ventilation, and safety to life and property from fire and other hazards attributed to the built environment” suggests that the words “life and property” refer only to the life and property of a class of persons inside a building. If the purpose of the Building Code was to protect only a subset of persons inside a building or a “built environment,” as Lightsey suggests, the Building Code would identify that group. Instead, the Building Code says that it is intended to protect the general welfare “through”— that is, by means of — “structural strength, stability, ... and safety to life and property....” See O’Neill v. Windshire-Cope-land Assocs., L.P., 267 Va. 605, 611, 595 S.E.2d 281, 284 (2004)(stating that the building code protects no specific class and noting that a person who never enters a building could be injured as the result of a building-code violation).

The purpose of the Building Code is to protect the general public. Because the first element of the doctrine of negligence per se is not met, negligence per se is not applicable to violations of the Building Code in this case.

We acknowledge, as Lightsey argues, that violation of certain rules of the road, § 32-5A-1 et seq., Ala.Code 1975, which govern the standards to protect occupiers of our roads, is considered negligence per se. Consolidated Freightways, Inc. v. Pacheco-Rivera, 524 So.2d 346 (Ala.1988); Simpson v. Glenn, 264 Ala. 519, 88 So.2d 326 (1956). The rules of the road were passed for “the benefit of a particular class of people who use the public streets and highways for travel.” Simpson, 264 Ala. at 521, 88 So.2d at 328. Thus, unlike the Building Code in this case, the purpose of the rules of the road is to protect a class of persons that is distinguishable from the general public.

Lightsey points out that some jurisdictions have held that a violation of a building code may constitute negligence per se. See Brown v. South Broward Hosp. Dist., 402 So.2d 58, 60 (Fla.Dist.Ct.App.1981); Real Estate Marketing, Inc. v. Franz, 885 S.W.2d 921, 927 (Ky.1994); Chambers v. City of Helena, 310 Mont. 241, 251-52, 49 P.3d 587, 593-94 (2002); Anderson v. Welsh, 86 N.M. 767, 772-73, 527 P.2d 1079, 1084-85 (1974); Federated Mut. Ins. Co. v. Hardin, 67 N.C.App. 487, 488-89, 313 S.E.2d 801, 802 (1984); MacCoy v. Colony House Builders, Inc., 239 Va. 64, 69, 387 S.E.2d 760, 763 (1990). See also Vega v. Eastern Courtyard Assocs., 117 Nev. 436, 440 n. 16, 24 P.3d 219, 222 n. 16 (2001)(holding that violation of building-code provisions adopted by local ordinance may be negligence per se and citing cases of other jurisdictions holding that negligence per se may be applicable to building-code violations). However, some of these jurisdictions do not require that the building code protect a class of persons distinguishable from the general public for negligence per se to be applicable. See Anderson, 86 N.M. at 772-73, 527 P.2d at 1084-85; O’Neill, 267 Va. at 611, 595 S.E.2d at 284; MacCoy, 239 Va. at 69, 387 S.E.2d at 763. Moreover, other jurisdictions have held that negligence per se does not apply to building-code violations. See Grand Union Co. v. Rocker, 454 So.2d 14, 16 (Fla.Dist.Ct.App.1984); Zimmerman v. Moore, 441 N.E.2d 690, 696 (Ind.Ct.App.1982); St. Germaine v. Pendergast, 411 Mass. 615, 620, 584 N.E.2d 611, 614 (1992); Elliott v. City of New York, 95 N.Y.2d 730, 734, 747 N.E.2d 760, 762-63, 724 N.Y.S.2d 397, 399 (2001); Pullman v. Outzen, 924 P.2d 416, 418 (Wyo.1996). Thus, we are not persuaded by the weight of jurisdictions applying the negligence per se theory to building-code violations. Finally, we address here only the particular Building Code applicable in this case. We express no opinion whether the violation of another building code, with a different express purpose, would yield a different result.

IV.

Parker Building argues that it is entitled to a new trial because, it says, the trial court’s instruction to the jury was reversible error. We agree. A party is entitled to have the jury properly instructed. Holly v. Huntsville Hosp., 865 So.2d 1177, 1187 (Ala.2003); George H. Lanier Mem’l Hosp. v. Andrews, 809 So.2d 802, 806 (Ala.2001). We may reverse the trial court’s judgment and remand for a new trial based on an incorrect or misleading jury charge. Holly, 865 So.2d at 1187; George H. Lanier Mem’l Hosp., 809 So.2d at 806. When the party has properly preserved an objection to a jury charge, as in this case, we “ ‘ “look to the entirety of the [jury] charge to see if there was a reversible error,” ’ ” and we will reverse the trial court’s judgment only if there is error and that error is prejudicial. George H. Lanier Mem’l Hosp., 809 So.2d at 806 (quoting King v. W.A. Brown & Sons, Inc., 585 So.2d 10, 12 (Ala.1991)).

The trial court’s charge to the jury stated the wrong legal standard. The trial court instructed the jury that if it determined that the ordinances had been violated and that the violation proximately caused Kace’s injury, then the jury must find that Parker Building was negligent per se. However, if the trial court had properly instructed the jury on prima facie negligence, then the jury would have been instructed to determine (1) whether the ordinances had been violated and (2) whether that violation constituted negligence by Parker Building. Murray v. Alabama Power Co., 413 So.2d 1109, 1112— 13 (Ala.1982). See, also, Alabama Pattern Jury Instructions: Civil 26.12 (2d ed.1993). With the proper instruction, the jury could have found that the violations of the Building Code in this case did not constitute negligence. The error, therefore, was prejudicial, and Parker Building is entitled to a new trial.

V.

We hold that the trial court committed reversible error in giving the jury an instruction on negligence per se. Therefore, we reverse the trial court’s judgment and remand this case for further proceedings.

REVERSED AND REMANDED.

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

      . The record indicates that the trial court entered a pro ami order on September 10, 2003. That same day, judgments were entered against Equity Investments, the Academy, and Vance.

      . Lightsey alleged in her complaint claims against Equity Investments, the Academy, Vance, and Parker Building based on theories of: (1) negligence/wantonness; (2) premises liability; and (3) attractive nuisance. In her second and third claims, Lightsey alleged that all the defendants were negligent, wanton, and reckless, and that their negligence, wantonness, and recklessness had caused Race’s injuries. Because the trial court instructed the jury on negligence and damages and Lightsey did not object to the trial court’s failure to instruct the jury on wantonness and recklessness, Lightsey appears to have waived her claims based on wantonness and recklessness.

      . The trial court's negligence per se instruction stated:
      "The Standard Building Code, the 1991 edition and the Homewood City Ordinance 1778, consists of a number of rules, regulations and standards enacted into law by the City of Homewood, regulating work done within the Homewood city limits. The violation of certain of these rules, regulations and standards is negligence as a matter of law. The doctrine of negligence per se or negligence as a matter of law is based upon the principle that when an act is forbidden or required by an expressed [sic] provision of the law that has been adopted and absolute required standard [sic] — the legislature has adopted absolute required standard of care which replaces a common law standard of a reasonably prudent man. Anyone who violates that law with resulting injury to one of those the law was intending to protect is liable regardless of the circumstance. Proof of violation is proof of negligence. Such negligence, however, in order to be actionable on the part of the plaintiff, must proximately cause or proximately contribute to the injury complained of by the plaintiff.
      "I will now read to you certain of those rules, regulations and standards, the violation of which is negligence as a matter of law. The fact that I read these statutes to you is in no way an indication that any of these statutes has been violated or that any such violation proximately caused or proximately contributed to the injury complained of by the plaintiff. It is for you to decide whether or not the statutes have been violated and whether or not any such violation proximately caused or proximately contributed to the injury complained of by the plaintiff, depending upon what you find the facts to be.
      "The first ordinance deals with building permit fees. 'Each person, firm or corporation engaged in excavation work, street paving, street repairing, building or constructing any individual building or remodeling, adding to air conditioning, roofing, re-roofing, storage tanks, fire sprinkler systems or repairing any existing building shall submit plans for each such building construction, addition, remodeling, air conditioning, roofing, re-roofing or repair and copies of bona fide signed contracts or other evidence of cost of the above referred to work to the building inspector and shall, before beginning such work, take out and secure a building permit for each building construction, extension, remodeling, air conditioning, roofing, re-roofing or repairing from the City of Homewood.'
      "The next one has to do with permit application. 'When required, any owner, authorized agent or contractor who desires to construct, enlarge, alter, repair, remove, demolish or change the occupancy of a building structure or to erect, install, enlarge or alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by the technical codes or to cause any such work to be done shall first make application to the building official and obtain the required permit for the work.'
      "As relates to balconies, porches or galleries. 'All porches, balconies, raised floor surfaces or landings located more than 30 inches above the floor or grade below shall have guardrails as specified in 1116.' 1116 as it relates to guardrails reads, 'All unenclosed floor and roof openings, open and glazed sides of landing and ramps, balconies or porches which are more than 30 inches above finished ground level or a floor below shall be protected by a guardrail. Guardrails shall form a vertical protective barrier not less than 42 inches high. Open guardrails shall have immediate rails or ornamental pattern such as a six-inch diameter sphere cannot pass through any opening.' ”


text:
    SOUTHTRUST BANK v. Lisa Y. DONELY.
    1031736.
    Supreme Court of Alabama.
    July 15, 2005.
    Rehearing Denied Nov. 10, 2005.

      W. Davis Malone III of Farmer, Farmer & Malone, P.A., Dothan, for appellant.
    Benjamin M. Bowden of Albrittons, Clifton, Alverson, Moody & Bowden, P.C., Andalusia, for appellee.
   SEE, Justice.

SouthTrust Bank appeals from a judgment entered on a jury verdict in favor of Lisa Y. Donely. We affirm in part and reverse and render judgment in part.

Facts and Procedural History

This case involves five certificates of deposit (“CDs”) issued by The Bank of Flo-rala between June 1973 and June 1978. The CDs were made payable to “[Herman] Lurie as guardian for Mrs. [Jennie Lurie] Young.” The Probate Court of Covington County had declared Young incompetent on September 15, 1970, and the following day issued letters of guardianship to Herman Lurie, her brother. Donely is Young’s daughter. Through a series of mergers and name changes, SouthTrust acquired The Bank of Florala. The parties have stipulated that SouthTrust assumed The Bank of Florala’s deposit liabilities.

On October 8, 1978, Young died, and on October-12, 1978, her will was admitted to probate. Donely was the only heir under Young’s will. On December 14, 1978, seven CDs were delivered to the executor of Young’s estate. During the administration of the estate, one of the CDs was collected by the executor. On June 29, 1979, the executor delivered the six remaining CDs to Donely, who signed a document acknowledging her receipt of the CDs. On July 26, 1979, the estate was settled and closed.

Donely kept the six CDs locked in a filing cabinet at her home from June 29, 1979, the date she received them from the estate, until February 1999. During this time, one of the CDs disappeared.

Sometime around the first of March 1999, Donely sent the five remaining CDs to Lurie and asked him to cash them and to put the money in her savings account at SouthTrust. Lurie told Donely that SouthTrust had refused to cash the CDs; however, Lurie later testified that he did not want to get involved in the matter and that he never presented the CDs to South-Trust for payment.

On October 20, 1999, Donely wrote Wallace Malone, then chief executive officer of SouthTrust, and demanded that South-Trust redeem the CDs; Donely enclosed photocopies of the CDs with her letter. She explained in her letter that South-Trust had told Lurie, and that Lurie had in turn informed her, that someone must have cashed the CDs in the 1970s. In response, on October 26, 1999, John D. Buchanan, then SouthTrust’s chief legal officer, wrote Donely a letter indicating that SouthTrust was looking into the matter. On December 1, 1999, Donely wrote Buchanan another letter, stating that her husband had contacted someone with the customer assistance group at the office of the Comptroller of the Currency, who advised her husband that Donely should allow the bank 45 days to research a request for redemption before making an official complaint to the customer assistance group and seeking their intervention, and that she therefore expected a response by December 10. On December 10, 1999, John Stack, then the market chief executive officer of the Covington County Area of SouthTrust, wrote Donely and notified her that because SouthTrust had no record of the CDs being current liabilities of the Bank, SouthTrust would not be able to redeem the CDs. Donely made an official complaint to the customer assistance group, which confirmed the information in Stack’s letter.

On March 13, 2001, Donely sued South-Trust, alleging conversion, breach of contract, open account, and a violation of § 7-3-412, Ala.Code 1975. On May 2, 2001, SouthTrust answered. On August 15, 2002, SouthTrust moved to amend its answer and on November 26, 2002, the trial court granted that motion. On January 13, 2003, SouthTrust moved for a summary judgment, which the trial court denied.

On April 9, 2003, Donely moved to amend her complaint to add a claim seeking the imposition of a constructive trust. SouthTrust opposed that motion. The trial court, on May 9, 2003, allowed Donely to amend her complaint, and SouthTrust answered the amended complaint on May 22, 2003.

On January 26-29, 2004, this case was tried before a jury. At the close of Donely’s case-in-chief and again after the presentation of all of the evidence, SouthTrust moved for a judgment as a matter of law (“JML”). The trial court entered a JML in favor of SouthTrust on Donely’s open-account claim and her claim that South-Trust had violated Ala.Code 1975, § 7-3-412. The trial court instructed the jury on the conversion and the breach-of-contract claims and on SouthTrust’s affirmative defenses. On January 29, 2004, the jury returned a verdict in favor of Donely on her claims of conversion and breach of contract and awarded damages in the amount of $176,090.20: $51,090.20 in compensatory damages on both the conversion and the breach-of-contract claims, $25,000 in damages for mental anguish, and $100,000 in punitive damages on the conversion claim. The trial court entered a judgment on that verdict. On February 2, 2004, the trial court entered an order dismissing as moot Donely’s claim seeking imposition of a constructive trust.

On March 1, 2004, SouthTrust moved for a JML or, in the alternative, a new trial. The trial court, after a hearing, denied SouthTrust’s motions. SouthTrust appeals.

Issues

SouthTrust argues that the trial court erred in (1) allowing Donely’s conversion claim to go to the jury, and (2) entering a judgment on the jury’s verdict awarding compensatory damages calculated by using compound interest.

Standard of Review

In determining whether the trial court erred in denying a motion for a JML, this Court applies the same standard the trial court used initially in granting or denying the motion. See Ex parte Alfa Mut. Fire Ins. Co., 742 So.2d 1237 (Ala.1999).

“Regarding questions of fact, the ultimate issue is whether the nonmovant has presented sufficient evidence to allow the case or issue to be submitted to the jury for a factual resolution. In an action filed after June 11, 1987, the non-movant must present substantial evidence to withstand a motion for JML. A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. If the question is one of law, this Court indulges no presumption of correctness as to the trial court’s ruling.”

742 So.2d at 1240 (citations omitted).

“Additionally, this Court reviews the grant or denial of a motion for new trial under the standard set out in Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160,162-63 (Ala.1988):
“ ‘[W]hen the evidence meets the “sufficiency” test, jury verdicts are presumed correct, and this presumption is strengthened by the trial court’s denial of a motion for a new trial. Therefore, a judgment based upon a jury verdict and sustained by the denial of a post-judgment motion for a new trial, will not be reversed on a weight-of-the-evidence ground unless it is “plainly and palpably” wrong.’ ”

Thompson Props. 119 AA 370, Ltd. v. Birmingham Hide & Tallow Co., 897 So.2d 248, 261 (Ala.2004).

Analysis

SouthTrust argues that “[a] certifícate of deposit is a contract between the bank and its customer where the customer makes a general deposit with the bank and, in return, receives a certificate wherein the bank promises to repay the funds deposited at a particular interest rate and at a specified time.” (SouthTrust’s brief, p. 19.) Therefore, SouthTrust argues, a debt- or-creditor relationship forms when a bank issues a certificate of deposit to a customer. See Montgomery v. Smith, 226 Ala. 91, 145 So. 822 (1933). SouthTrust further argues that a certificate of deposit evidences a loan from the depositor to the bank, vesting title to the deposited money in the bank. Clark v. Young, 246 Ala, 529, 21 So.2d 331 (1945). Therefore, South-Trust argues, “[a]n obligation to pay or a debt is ordinarily enforceable by assumpsit or a contract action, but such will not support an action for conversion.” McCain v. P.A. Partners Ltd., 445 So.2d 271, 273 (Ala.1984)(stating that plaintiff had no immediate property right in her payroll check at the time her employer withheld it because there had been no delivery). SouthTrust also cites Green Tree Acceptance, Inc. v. Tunstall, 645 So.2d 1384, 1387 (Ala.1994)(“a conversion will not lie when there is merely a relationship of debtor and creditor”), and Knox v. Moskins Stores, Inc., 241 Ala. 346, 348, 2 So.2d 449, 450 (1941)(stating that there is no conversion when an employer allegedly erroneously assigns an employee’s wages).

Finally, SouthTrust argues that, even if this Court finds that the conversion claim was properly submitted to the jury, Donely did not prove conversion. SouthTrust argues that in order for there to be a conversion, SouthTrust must have converted the actual CDs, not the funds deposited in the bank and represented by the CDs. SouthTrust argues that, in order for Donely to sustain her conversion claim, she must produce substantial evidence that she is entitled to “specific money capable of identification.” See Covington v. Exxon Co., U.S.A., 551 So.2d 935, 938 (Ala.1989). A SouthTrust branch administrator, Danny Bess, testified that when the CDs were issued, the money received by the bank was not segregated or placed in a special account but was commingled in a “kitty” or pool with all other deposits. Therefore, SouthTrust argues, Donely cannot prove her conversion claim because the funds she deposited were commingled with other funds and were not placed in a special account. See Given Tree Acceptance, Inc. v. Tunstall, 645 So.2d at 1387; Johnson v. Life Ins. Co. of Alabama, 581 So.2d 438, 443 (Ala.1991)(holding that the trial court correctly directed verdicts because “the insureds merely seek to recover a certain sum of currency paid for the purchase of insurance policies”); Covington, 551 So.2d at 935 (stating that, even though each royalty-interest owner had its own account number, the moneys attributable to Exxon’s royalty-owner accounts were located and commingled in numerous accounts worldwide and had never been segregated into a separate account; thus, the funds were not sufficiently identified to be converted).

In response, Donely argues that the primary inquiry in a conversion case is whether the money at issue was sufficiently segregated or identifiable. See Citizens Bank of Moulton v. Jones, 671 So.2d 737, 740 (Ala.Civ.App.1995)(holding that “the $15,000 at issue is identifiable as the money from the loan that Citizens Bank made to Borden for the purchase of the property. Because the money at issue here comes from an identifiable source, i.e., the loan given to Borden to purchase the property from the Joneses, it is capable of being converted.”). Further, Donely argues that each of the CDs at issue has its own separate account number, that each represents a stated face amount and interest rate, and that each is made payable to a specific person. Donely also argues that, even though her CDs are not “instruments” under Title 7 of Alabama’s version of the Uniform Commercial Code because they are marked “nonnegotiable,” § 7-3-420, Ala.Code 1975, recognizes that CDs may be converted.

“ ‘To establish conversion, one must present proof of a wrongful taking, an illegal assumption of ownership, an illegal use or misuse of another’s property, or a wrongful detention or interference with another’s property. It is well settled that money may be subject to a conversion claim, where there is an obligation to keep that money intact or deliver it. Generally, an action for conversion of money will not lie unless the money is specific and capable of identification.’

Riscorp, Inc. v. Norman, 915 So.2d 1142, 1152 (Ala.2005) (quoting Crown Life Ins. Co. v. Smith, 657 So.2d 821, 823 (Ala.1994) (citations omitted; emphasis added in Ris-corp )); see also Bozeman v. Central Bank of the South, 646 So.2d 601, 603 (Ala.1994); Covington v. Exxon Co., U.S.A., 551 So.2d 935, 938 (Ala.1989); and Ott v. Fox, 362 So.2d 836, 839 (Ala.1978).

“In other words, an action alleging conversion of money lies only where there is an obligation to deliver the specific pieces of the money in question or money that has been specifically sequestered, rather than a mere obligation to deliver a certain sum.” Johnson, 581 So.2d at 443; see also Lewis v. Fowler, 479 So.2d 725, 727 (Ala.1985)(“When there is no obligation to return the identical money, but only a relationship of debtor or creditor, an action for conversion of funds representing the indebtedness will not lie against the debtor.”).

“The requirement that there be ‘earmarked money or specific money capable of identification’ before there can be a conversion has been complicated as a result of the evolution of our economic system.
“Now, in conversion cases, the courts are not confronted so much with a particular piece of money, i.e., a coin or a bill, but with identified or segregated sources from which money has come or types of accounts into which money has been deposited.
“... Shares in a ‘Ready Assets Trust Account’ which must be redeemed for cash and on which checks can be written have been held to be sufficiently identifiable to support an action in conversion.”

Lewis, 479 So.2d at 726 (citations omitted).

Prosser and Keeton, in their discussion of what documents may support an action for conversion, state that because intangible rights could not be lost or found, “the original rule was that there could be no conversion of such property.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 15, at 91 (5th ed.1984). However, they state:

“But this hoary limitation has been discarded to some extent by all of the courts. The first relaxation of the rule was with respect to the conversion of a document in which intangible rights were merged, so that the one became the symbol of the other — as in the case of a promissory note, a check, a bond, a bill of lading, or a stock certificate.[] This was then extended to include intangible rights to which a tangible object, converted by the defendant, was highly important — as in the case of a savings bank book, an insurance policy, a tax receipt, account books, or a receipted account. In all of these cases the conversion of the tangible thing was held to include conversion of the intangible rights, and to carry damages for it. The final step was to find conversion of the rights themselves where there was no accompanying conversion of anything tangible — as, for example, where a corporation refuses to register a transfer of the rights of a shareholder on its books.”

Keeton, § 15, at 91 (footnotes omitted).

In Knox v. Moskins Stores, supra, a case cited by SouthTrust, James Knox alleged that Moskin Stores had wrongfully placed with Knox’s employer an assignment of Knox’s wages. Based on the assignment, the employer withheld Knox’s wages, and Knox alleged that Moskin Stores had converted Knox’s wages. This Court held:

“The term ‘account,’ as here used, means a demand or claim, or right of action. It is a mere incorporeal right to a certain sum or to the collection of a debt. In this sense, it has no tangible entity, and will not support an action of trover. 1 Corpus Juris 596, § 1.1 C.J.S., Account, p. 571.”

241 Ala. at 348, 2 So.2d at 450.

Alabama appellate courts recognize that ordinarily a creditor cannot sue a debtor alleging conversion, but they also recognize that a certificate of deposit itself may be converted. See, e.g., Bozeman v. Central Bank of the South, supra; Alabama City Bank of Gadsden v. Vaughn, 413 So.2d 1053 (Ala.1982); Mann v. Bank of Tallassee, 694 So.2d 1375 (Ala.Civ.App.1996); and Stillwell v. Columbus Bank & Trust, 675 So.2d 433 (Ala.Civ.App.1995). In Bozeman, the Bozemans had executed a promissory note to Central Bank and had secured that debt with a certificate of deposit. This Court held that a jury could conclude that Central Bank converted the Bozeman’s certificate of deposit when it cashed that certificate in order to pay off the loan the Bank believed was in default.

In Alabama City Bank of Gadsden v. Vaughn, Walter Vaughn agreed to put $15,000 into a certificate of deposit to be held by the bank as collateral on a promissory note. 413 So.2d at 1054. Evidence was presented indicating that the bank later cashed Vaughn’s certificate of deposit. 413 So.2d at 1055. This Court affirmed the trial court’s denial of the bank’s motion for a directed verdict, holding that sufficient evidence was presented through Vaughn’s testimony to afford a reasonable inference that the bank had converted Vaughn’s money.

Similarly, in Mann v. Bank of Tallassee, Henry Mann and his wife, Judy Mann, had entered into a loan agreement with the bank to borrow money to buy a gravel-pit business. When the Manns defaulted on the loan, the bank retained the Manns’ personal certificate of deposit. The Court of Civil Appeals held that the Manns had not presented substantial evidence indicating that they had title to, or that they had the right to the possession of, the certificate of deposit at the time of the alleged conversion; therefore, the trial court properly entered a summary judgment in favor of the bank on the Manns’ conversion claim.

Finally, in Stillwell v. Columbus Bank & Trust, Larry Stillwell and his mother, Mary Stillwell, opened two accounts in which they deposited Mary’s life savings; one account was an interest-paying money-market account and the other account was a certificate of deposit. 675 So.2d at 433. Both accounts were opened in Larry’s name only, but in order to make sure that Mary could access her money, Larry had a friend prepare a power of attorney for Mary as to both accounts. 675 So.2d at 433-34. When the certificate in the amount of $67,715.26 matured, Larry, with Mary’s consent, took part of the money and invested it in a mutual fund and invested the remaining balance in another certificate of deposit. Mary cashed that second certificate, and Larry sued the bank, alleging breach of contract, conversion, negligence, and violation of a fiduciary relationship. 675 So.2d at 433. This Court held that, because the power of attorney, which did not include the number of the second certificate of deposit, did not allow Mary to cash the second certifícate, the trial court properly denied the bank’s motion for a summary judgment. 675 So.2d at 434.

We agree with Donely that Bozeman, Vaughn, Mann, and Stillwell stand for the proposition that a certificate of deposit is capable of being converted. However, in those cases, the actual certificate was held to have been converted, not simply the funds deposited in the bank to purchase the certificate or the amount due upon maturity of the certificate, that is, the amount originally deposited plus the stipulated interest. A certificate of deposit represents a contractual relationship between the issuer of the certificate and the purchaser of it. Failure of the issuer to make good on its contractual duty to pay is a breach of the contract. If, on the other hand, the certificate of deposit itself is wrongfully taken by another, the certificate has been converted. In this case, Donely alleges that when she presented her CDs to SouthTrust for payment, SouthTrust refused to disburse the funds to her. Thus, Donely has alleged that SouthTrust has failed to pay her a debt, and the proper action for that claim is a breach-of-contract action, not a conversion action.

Donely cites Crown Life Insurance Co. v. Smith, 657 So.2d 821 (Ala.1994), in support of her argument that the funds represented by the CDs are capable of being converted. In Crown Life, an insurance agent stole the policyholder’s premium refund checks and forged the policyholder’s name on the checks. The Court stated: “While, according to Crown, the funds at issue were commingled with those of other Crown insureds, it is without question that the funds available under each policy were specifically identified by the policy number and could have been easily retrieved for the Smiths under the policy number.” 657 So.2d at 824. That is, the checks were instruments that reflected a debt of the insurance company to the insured. This Court held that the funds taken by the agent were “specific money capable of identification” and, therefore, were subject to a conversion claim. In this case, however, SouthTrust did not take the CDs from Donely, cash them, and then use those funds as did the insurance agent in Crown Life; SouthTrust refused to pay Donely the funds represented by the CDs when she attempted to redeem the CDs in her possession. Therefore, we hold that the trial court erred in submitting Donely’s conversion claim to the jury.

SouthTrust also argues that the trial court erred in entering a judgment on the jury’s compensatory-damages award. SouthTrust concedes that Donely’s breach-of-contract claim was properly submitted to the jury, and it does not contest the jury’s verdict in favor of Donely on that claim. However, SouthTrust argues that the calculation of the interest awarded to Donely was not in accordance with the terms of the CDs and that the jury should have awarded simple interest rather than compound interest. In support, SouthTrust argues that an award of compound interest must be made pursuant to a statute or agreement, either express or implied. Smith v. Yancey, 198 Ala. 221, 73 So. 477, 478 (1916). SouthTrust states that Donely was entitled to recover $12,000 for the principal face amount of the CDs and that the CDs provide:

“Payment will be made to the registered payee for the above amount, plus unpaid interest upon maturity, and upon surrender of this certificate. Interest at the rate of_PERCENT per annum will be paid at the end of each _ months’ period from date of issue by mailed remittance to payee.”

SouthtTrust states that Donely’s expert calculated the interest due on the CDs to be $39,090.20, but that the language of the CDs — “by mailed remittance to payee” — is a clear indication that the interest should not be compounded; SouthTrust does not further explain this argument. South-Trust also argues that the CDs provide that the interest rate payable is “subject to change by the bank to comply with any change in the bank’s regulations” and that the interest rates used to calculate the interest due in this case were contrary to the express terms of the CDs themselves. SouthTrust argues that its “Rules and Regulations Governing Deposit Accounts” provide that SouthTrust will determine the interest rate to be paid on its accounts. Finally, SouthTrust argues that, while compensatory damages do not have to be proven with mathematical certainty, Donely failed to present competent evidence of the amount of interest she was due on those damages. Donely argues that SouthTrust raises this issue for the first time on appeal and that, because South-Trust did not object to her expert testimony at trial, it was properly admitted into evidence for the jury to consider. It is the plaintiffs burden to produce competent evidence establishing the existence of and amount of damages. Johnson v. Harrison, 404 So.2d 337 (Ala.1981). With regard to the interest calculated in this case, Donely’s expert, Michael Hawkins, a certified public accountant, testified as follows:

“A. Basically, each of the certificates indicate the interest rate that’s to be used. They also indicate whether or not they are compounded either semiannually or quarterly. If they are compounded semiannually, what that basically means is that if you invested, for instance, a thousand dollars, interest would be earned for six months. And then interest should be paid at that point in time. If interest were not paid, it would be added to the unpaid balance, and interest would accrue on the total balance from that point forward.
“By the same token, if it’s done quarterly, you would compound it quarterly from the standpoint of a thousand dollars with, say, 10 percent interest, it would be a hundred dollars per year. If you got twenty-five thousand dollars per quarter, after the fist [sic] quarter, if interest were not paid, you would have a thousand and twenty-five dollars. But interest would be then calculated on to the second period.
“Q. Okay. So instead of just at the end of one year taking whatever interest is earned and putting it on top of it, that interest is added throughout the year depending on whether its quarterly or semi-annually?
“A. Unless the interest is paid directly to someone.”

There is a presumption that a jury’s verdict is correct; that presumption is strengthened when the trial court has denied a motion for a new trial. See First Alabama Bank of South Baldwin v. Prudential Life Ins. Co. of America, 619 So.2d 1313 (Ala.1993). At trial, SouthTrust failed to present an alternative method of calculating the interest on the CDs and SouthTrust did not object to Hawkins’s testimony; therefore, Hawkins’s testimony was properly admitted as evidence for the jury to consider.

Conclusion

The trial court erred in denying South-Trust’s motions for a JML as to the conversion claim, in submitting the conversion claim to the jury, and in denying South-Trust’s postjudgment motion for a JML as to that claim. We, therefore, reverse the judgment as to the conversion claim and render a judgment in favor of SouthTrust on that claim. We affirm the judgment as to the breach-of-contract claim, including the amount of the compensatory damages awarded to Donely on that claim.

AFFIRMED IN PART AND REVERSED AND JUDGMENT RENDERED IN PART.

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

      . For the most part, the facts in this case are not in dispute; Donely, the appellee and the plaintiff below, adopts in her brief South-Trust's statement of the facts.

      . Section 7-3-412, Ala.Code 1975, is entitled "Obligation of issuer of note or cashier's check.”

      . SouthTrust asserted the following affirmative defenses: (1) statute of limitations; (2) laches; and (3) discharge and payment.

      . Donely’s expert had testified that interest in the amount of $39,090.20 was due on the CDs, which had a value of $12,000.

      .On appeal, SouthTrust does not challenge the amount of the punitive-damages award or the damages awarded for mental anguish.

      . In Green Tree, Louis Tunstall borrowed $14,701.20 from Green Tree to finance his purchase of a mobile home from Don Graves, Inc. 645 So.2d at 1385. Green Tree assigned a number to that loan, but it did not set aside funds to an account with that loan number. 645 So.2d at 1386. Instead, the funds were commingled with other money held by Green Tree. Id. As part of the loan, Tunstall received a $1,200 allowance for an air conditioner and a heat pump. Green Tree executed a check for $1,200 to Graves; the check included Tun-stall’s loan number and the notation "A/C Holdback,” and Green Tree placed the check in a file. 645 So.2d at 1385. Green Tree never delivered the check to Graves and never deposited any money in an account to pay it. Graves went out of business without first installing a heating and air conditioning system in Tunstall’s mobile home. Tunstall sued Graves and tire manufacturer of the mobile home, and he later amended his complaint to add claims against Green Tree. 645 So.2d at 1385. Among other claims, Tunstall alleged that "Green Tree ‘converted to its own use that specific sum of money which it had received for the sole and express purpose’ of purchasing and installing a heating and air conditioning unit for his mobile home.” 645 So.2d at 1386. Green Tree presented evidence indicating that it maintains a "zero balance cash management account” to make payments to mobile-home dealers such as Graves and that it borrows money daily against its line of credit to pay the checks presented to it. 645 So.2d at 1385-86. Noting that Green Tree did not set aside funds to be deposited to an account with Tunstall's loan number and that the funds in Tunstall's account were commingled with other funds, this Court concluded that the trial court erred in denying Green Tree's motions for a directed verdict and for a judgment notwithstanding the verdict on the conversion claim.

      . Section 7-3-104(d), Ala.Code 1975, states: "A promise or order other than a check is not an instrument if, at the time it is issued or first comes into possession of a holder, it contains a conspicuous statement, however expressed, to the effect that the promise or order is not negotiable or is not an instrument governed by this article.” Under § 7-3-104(b), Ala.Code 1975, an " '[¡Instrument' means a negotiable instrument.”
      A "certificate of deposit” is defined in § 7-3 — 104(j), Ala.Code 1975, as "an instrument containing an acknowledgment by a bank that a sum of money has been received by the bank and a promise by the bank to repay the sum of money. A certificate of deposit is a note of the bank.”

      . Section 7-3-420(a) provides:
      "An instrument is converted under circumstances which would constitute conversion under personal property law. An instrument is also converted if it is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment.”
      In response on Donely's argument that § 7-3-420(a) should apply in this case even though the CDs are nonnegotiable and, therefore, not "instruments,” SouthTrust argues that § 7-3-420(a) has no application to this case because, it says, the statute primarily deals with the payment of checks in the check-collection system and with conversion of the instrument itself, not the conversion of the funds on deposit.

      . A negotiable instrument is a chose in action that is subject to conversion. See First Nat’l Bank of Montgomery v. Montgomery Cotton Mfg. Co., 211 Ala. 551, 552, 101 So. 186, 188 (1924) (noting that " 'bills of exchange, promissory notes, and other forms of negotiable instruments or commercial paper’ ” are " 'dioses in action represented by written instruments or something capable of seizure and possession’ " (quoting 30 Cyc. p.2012D) and that " '[t]he measure of damages is prima facie the value [of the instrument] on its face' ” (quoting McPeters v. Phillips, 46 Ala. 496, 497 (1871))).