author:
      BRYAN, Judge.
     BRYAN, Judge.

text:
    Gary Lee OLSON v. STATE of Alabama.
    2050648.
    Court of Civil Appeals of Alabama.
    Feb. 9, 2007.
    Opinion on Return to Remand May 4, 2007.
    Gary Lee Olson, pro se.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   BRYAN, Judge.

Gary Lee Olson appeals from a purported judgment of the Baldwin Circuit Court. Because the appeal is taken from a nonfi-nal judgment, we remand the case to the circuit court for it to enter a final judgment.

In August 1999, Olson was arrested for the possession of marijuana and the possession and use of drug paraphernalia. After being charged with those offenses, Olson pleaded guilty to a misdemeanor possession-of-marijuana charge, and the State of Alabama nolle prossed the drug-paraphernalia charge.

On October 11, 2000, Olson filed a “motion to release and return of seized money and property.” Olson’s motion listed numerous firearms that he asserted had been seized from him at the time of his arrest. On June 23, 2005, the following entry was made on the computerized case-action summary: “defendants motion to return property, granted. JHR.” On July 6, 2005, the State filed a Rule 59, Ala. R. Civ. P., motion to alter, amend, or vacate the purported judgment of June 23, 2005. The record on appeal does not indicate that the circuit court ruled on the State’s July 6, 2005, Rule 59 motion.

Although the record is unclear, Olson apparently asserted that, although some of his seized personal property was returned to him on March 30, 2006, seized money and firearms were not returned to him. Olson subsequently filed a notice of appeal to the Court of Criminal Appeals. The Court of Criminal appeals transferred the appeal to this court on the authority of Jones v. State, 937 So.2d 59 (Ala.2006) (stating that in a case involving a request for the return of seized property, the proceedings should be treated as a civil action for conversion).

At the time the purported judgment in this case was entered, Rule 58(b), Ala. R. Civ. P., provided, in pertinent part, that a “judgment or order, or the minute entry thereof, will be sufficient if it is signed or initialed by the judge ,...” The supreme court has held that a judgment that is not signed or initialed by the trial judge is a nullity. Alfa Life Ins. Corp. v. Jackson, 906 So.2d 143, 152-53 (Ala.2005). Because the purported judgment of June 23, 2005, was not signed or initialed by the trial judge, it is a nullity. Id. Therefore, Olson has appealed from a nonfinal judgment. “A nonfinal judgment will not support an appeal.” Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004).

We remand the case to the circuit court for 28 days for it to enter a final judgment that complies with Rule 58(b). Failure by the circuit court to respond to this remand within 28 days will result in the dismissal of the appeal as being from a nonfinal judgment.

REMANDED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

On Return to Remand

BRYAN, Judge.

On February 9, 2007, we remanded this case to the circuit court for it to enter a final judgment that complies with Rule 58(b), Ala. R. Civ. P. See Olson v. State, 975 So.2d 357 (Ala.Civ.App.2007). On remand, the circuit court entered a final judgment in Gary Lee Olson’s favor in his action seeking the return of items seized when Olson was arrested in August 1999.

On return to remand, Olson contends that the State of Aabama has not returned all the seized items that he sought to recover in his action. Olson seems to attribute this purported failure to return certain items to error by the circuit court. However, the record on appeal indicates that the circuit court entered a final judgment granting Olson’s request that the seized items be returned to him. The State’s purported failure to return the items to Olson is not attributable to any adverse ruling by the circuit court. Generally, a party may appeal only an adverse ruling. CSX Transp., Inc. v. Day, 613 So.2d 883, 884 (Ala.1993) (“[I]t is familiar law that an adverse ruling below is a prerequisite to appellate review.”); Figures v. Figures, 658 So.2d 502, 504 (Ala.Civ.App.1994) (“The only matter for [the appellate court’s] consideration is an adverse ruling of the trial court. Davis v. Hartford Accident & Indemnity Co., 335 So.2d 688 (Ala.Civ.App.1976).”); and Rountree v. Sanders, 413 So.2d 1159, 1159-60 (Ala.Civ.App.1982) (“Upon an appeal, only adverse rulings of the trial court will be reviewed.”); see also Public Serv. Comm’n of Missouri v. Brashear Freight Lines, Inc., 306 U.S. 204, 206-07, 59 S.Ct. 480, 83 L.Ed. 608 (1939) (stating that the successful party below lacked the right to appeal from a decree denying an injunction).

Because the circuit court on remand entered a final judgment in Olson’s favor, there is no adverse ruling against Olson for this court to review. Therefore, the judgment of the circuit court is due to be affirmed.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . This case was originally assigned to another judge on this court; it was reassigned to Judge Bryan on January 17, 2007.

      . An entry on the case-action summary dated March 30, 2006, states that a "motion was heard” and that the "motion is moot”; this entry appears to refer to motions filed by Olson seeking transcripts and “recordings” of various hearings.

      .Rule 58 was amended effective September 19, 2006. The new rule differs significantly from the prior rule, especially concerning the requirements for the entry of a judgment or order. Because the purported judgment in this case predates the amendment of September 19, 2006, we cite the prior version of Rule 58. The new Rule 58(b) provides, in part, that "[a] written order or a judgment will be sufficient if it is signed or initialed by the judge....”


source: Caselaw Access Project

author: PER CURIAM. MOORE, Judge, PITTMAN, Judge,

license: Public Domain

text:
    Todd Irvin BRATTMILLER v. Susan Beth BRATTMILLER Susan Beth Brattmiller v. Todd Irvin Brattmiller.
    2050120.
    Court of Civil Appeals of Alabama.
    June 1, 2007.

      Robert H. Brogden, Ozark, for appellant/cross-appellee Todd Irvin Brattmiller.
    J.E. Sawyer, Jr., Enterprise, for appel-lee/cross-appellant Susan Beth Brattmiller.
   PER CURIAM.

Todd Irvin Brattmiller (“the husband”) appeals from a divorce judgment that, among other things, awarded Susan Beth Brattmiller (“the wife”) a portion of his military retirement benefits. The wife cross-appeals and asserts that the trial court erred in awarding the husband primary physical custody of the parties’ two minor children.

The parties were married on December 27, 1986, one month after the husband had entered military service in the United States Army. Two daughters were born to the parties, one in 1989 and one in 1991. Throughout the marriage, the husband had advanced in his Army career by attending officer-candidate school and, eventually, by being commissioned as an officer in May 1995. At the time of trial, the husband was classified as a captain and would be eligible to retire in November 2006.

In July 2003, the husband filed a complaint seeking a divorce on the grounds of incompatibility and an irretrievable breakdown of the marriage; in that complaint, among other things, the husband sought primary custody of the parties’ two minor children. The wife filed an answer contesting that the husband should be awarded physical custody of the children and a counterclaim seeking, among other things, a divorce and an award of custody of the children.

Following numerous delays, the trial court conducted an ore tenus proceeding on February 22, 2005. During that proceeding, both of the parties and the parties’ two daughters testified. The vast majority of the evidence adduced at trial related to the child-custody dispute between the parties. The wife asserted that she had been the children’s primary caregiver because, she said, the husband had been too busy pursuing his military career. However, the evidence indicates that at different times during the marriage the wife had abused alcohol; the evidence also established that the wife had completed a rehabilitation program and had been alcohol-free since August 2003.

The husband testified that the wife had been a hindrance to his career and that he did not want the parties’ children to be subjected to any possible renewed abuse of alcohol by the wife in the future. The parties’ older daughter, who was 15 years old at the time of trial, testified that during the period when the husband had been overseas on assignment, the wife had been verbally abusive to the children while she was drunk. The older daughter testified that the wife’s drinking habits had strained the mother-child relationship and that she would prefer to live with the husband. The parties’ younger daughter, who was 13 years old at the time of trial, testified that she loved both of her parents but that she wanted to live with the wife; she also stated her belief that, by living with the wife, her presence would help deter the wife from abusing alcohol in the future. In addition, the younger daughter noted that she did not “get along” with her older sister.

The husband testified that the wife had not been of any assistance with respect to his Army career and opined that she was not entitled to an award of any portion of his military retirement benefits for that reason. He also insisted that he was the more stable parent of the two parties, that he could ensure that he would continue to be stationed in Alabama until his retirement in November 2006, and that he should therefore be awarded custody of the parties’ minor children.

The trial court entered a divorce judgment on July 7, 2005. That judgment awarded the husband primary physical custody of both children, awarded the wife standard visitation with the children, and ordered the wife to pay monthly child support in the amount of $284. The judgment awarded the marital residence and its contents to the husband, provided that the husband pay the wife 50% of the equity in the marital residence within 60 days of the entry of the judgment; otherwise, the husband was charged with selling the property and sharing equally with the wife any proceeds remaining after all related costs had been paid.

As part of the marital-property division, the judgment ordered the husband to pay the wife $500 per month in periodic alimony for 60 consecutive months. In addition, the judgment ordered the husband to pay the wife 45% of “his military retirement [benefits] when the [husband] retires and begins receiving his retirement pay.”

The husband filed a postjudgment motion challenging the award of military retirement benefits, and the wife filed a postjudgment motion challenging the child-custody award. Both motions were denied by operation of law. See Rule 59.1, Ala. R. Civ. P.

The husband contends that the trial court erred in awarding the wife a portion of his retirement benefits because the wife failed to introduce any evidence tending to establish the present value of those benefits. As a general matter, a trial court, as a component of a divorce judgment, may order an allowance to one spouse out of the other spouse’s estate when such an award is warranted. See Ala.Code 1975, § 30-2-51(a). In contrast, Ala.Code 1975, § 30-2-51(b), which was added in 1995 and upon which the husband bases his argument, authorizes a court granting a divorce to apportion as a marital asset “the present value of any future or current retirement benefits [] that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed” (emphasis added).

In Wilson v. Wilson, 941 So.2d 967 (Ala.Civ.App.2005); Applegate v. Applegate, 863 So.2d 1123 (Ala.Civ.App.2003); and McAlpine v. McAlpine, 865 So.2d 438, 440 (Ala.Civ.App.2002), this court held that, in order to support an award to one spouse of a portion of the other spouse’s retirement benefits pursuant to § 30-2-51(b), the spouse seeking such an award must introduce evidence establishing the “present value” of the retirement benefits. Moreover, this court stated that “ ‘[t]he failure to present the necessary evidence of the present valuation of retirement benefits ... prevents the trial court from exercising its ... discretion to award one spouse any portion of the retirement benefits of the other spouse. McAlpine v. McAlpine, 865 So.2d 438 (Ala.Civ.App. 2002).’ ” Wilson, 941 So.2d at 970 (quoting Applegate, 863 So.2d at 1124). Reversing the awards of retirement benefits in Wilson, Applegate, and McAlpine, this court remanded those cases with instructions for the pertinent trial courts to amend their judgments to eliminate the awards of retirement benefits and to reconsider divisions of marital assets on the basis of evidence that had already been introduced at trial.

Accordingly, in the case now before us, the award to the wife of a portion of the husband’s retirement benefits was erroneous because the wife did not introduce any evidence establishing the present value of the husband’s retirement benefits. We therefore reverse the trial court’s judgment insofar as it awarded the wife a portion of the husband’s retirement benefits and remand the case with instructions to the trial court to amend the judgment to eliminate the award to the wife of a portion of the husband’s retirement benefits. See Wilson, Applegate, and McAlpine. In addition, because the award to the wife of a portion of the husband’s retirement benefits was a significant part of the trial court’s allocation of marital property to the wife, we reverse the trial court’s division of the marital property in its entirety so that, on remand, the trial court can reconsider its division of the marital property in light of our holding that it cannot award the wife any portion of the husband’s retirement benefits. Moreover, because the award of periodic alimony is interrelated with the division of marital property, see Courtright v. Courtright, 757 So.2d 453, 456 (Ala.Civ.App.2000), we also reverse the trial court’s award of periodic alimony, so that, on remand, the trial court can reconsider its award of periodic alimony in conjunction with its reconsideration of its division of marital property.

The wife’s cross-appeal challenges the trial court’s award of primary physical custody of the parties’ two children to the husband because, she claims, the evidence did not establish that she was unfit to have custody of the children. The wife misconstrues the proper standard to be applied in this case; in an original divorce action, the parties stand on an equal footing and no presumption of entitlement to custody inures to either parent. See Smith v. Smith, 727 So.2d 113, 114 (Ala.Civ.App.1998). The trial court’s paramount concern, and the correct standard for it to apply in making an initial child-custody determination, is the best interests and welfare of the children at issue. See Ex parte Couch, 521 So.2d 987, 989 (Ala.1988); see also C.B.B. v. J.S.D., 831 So.2d 620, 621 (Ala.Civ.App.2002).

In this case, the trial court received evidence during an ore tenus proceeding concerning the custody issue; thus, our review of that award is limited. The ore tenus rule, under which we indulge a presumption of correctness in reviewing a trial court’s judgment after receiving oral testimony, is based, in part, on the unique position of the trial court to personally observe the parties and witnesses and to assess their demeanor and credibility. Ex parte Fann, 810 So.2d 631, 633 (Ala.2001). Additionally, ‘“[i]n child custody cases especially, the perception of an attentive trial judge is of great importance.’ ” Id. at 633 (quoting Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981)). In this case, although the trial court did not state any factual findings before awarding physical custody of the children to the husband, there was substantial evidence in the record from which that court could have found that the best interests of the children would be best served by making the custody award it made.

Moreover, “[ajppellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing.” Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996). 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 Patronas, 693 So.2d 473, 475 (Ala.1997). Additionally, “ ‘in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment.’ ” Ex parte Fann, 810 So.2d at 633 (quoting Ex parte Bryowsky, 676 So.2d at 1324). We must, therefore, defer to the child-custody decision reached by the trial court.

The divorce judgment is due to be affirmed as to the custody determination. However, as noted earlier, the trial court’s retirement-benefits award is erroneous. We reverse the trial court’s alimony award and its division of marital property in their entirety so that, on remand, the trial court may make a new alimony award and marital-property division in light of the impropriety of awarding the wife a portion of the husband’s retirement benefits in this case.

APPEAL-REVERSED AND REMANDED WITH INSTRUCTIONS.

CROSS-APPEAL — AFFIRMED.

THOMPSON, P.J., and BRYAN and THOMAS, JJ., concur.

MOORE, J., concurs specially.

PITTMAN, J., concurs in part and dissents in part, with writing.

MOORE, Judge,

concurring specially.

I fully concur in the discussion in the lead opinion regarding the trial court’s disposition of the custody issue. I also concur in the determination in the lead opinion that the trial court erred in its alimony and property-division awards by awarding the wife a portion of the husband’s military retirement benefits. I write specially to address this latter issue and the arguments raised in Judge Pittman’s special writing.

In Kabaci v. Kabaci 373 So.2d 1144 (Ala.Civ.App.1979), this court decided that military pension benefits could be used as a source to pay periodic alimony but could not be awarded as alimony in gross or divided in a property settlement. In Ex parte Vaughn, 634 So.2d 533 (Ala.1993), the supreme court overruled Kabaci by holding that disposable military pension benefits could be treated as marital property subject to equitable division pursuant to the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408.

In Jackson v. Jackson, 656 So.2d 875, 877 (Ala.Civ.App.1995), this court arguably extended Vaughn in holding that military nondisability pension benefits that had not yet vested and matured constituted a marital asset subject to division upon dissolution of the marriage. See also Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994) (extending Vaughn to hold that non-military retirement accounts may be the subject of alimony in gross or property division). In so doing, this court noted that

“retirement benefits can be mathematically ascertained. Courts have developed formulas for valuation of nonvested military retirement pay, for example, awarding ownership based on the number of months the marriage lasted, divided by the total number of months of military service that can be counted toward retirement. See Carranza v. Carranza, 765 S.W.2d 32 (Ky.App.1989). Another formula sets an amount to be paid in monthly installments, based on the number of years of the marriage, divided by the number of years in military service, times one-half the retirement pay when retirement occurs. See Bullock v. Bullock, 354 N.W.2d 904 (N.D.1984). Using this latter formula, a court can award each spouse an appropriate portion of each retirement payment as it is paid, without computing the present value of the retirement and with each person equally dividing the risk if the pension fails to vest.”

656 So.2d at 877-78.

In 1995, four months after Jackson was decided, the legislature amended Ala.Code 1975, § 30-2-51, to regulate the division of retirement benefits in divorce cases. Section 30-2-51 now provides:

“(a) If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.
“(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
“(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
“(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
“(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.
“(c) If the court finds in its discretion that any of the covered spouse’s retirement benefits should be distributed to the non-covered spouse, the amount is not payable to the non-covered spouse until the covered spouse begins to receive his or her retirement benefits or reaches the age of 65 years, unless both parties agree to a lump sum settlement of the non-covered spouse’s benefits payable in one or more installments.”

The 1995 amendment to § 30-2-51 made stylistic changes to the wording of subsection (a) and added subsections (b) and (c).

Subsection (b) provides that the judge in a divorce proceeding may include in the estate of either spouse “the present value” of vested retirement benefits. Subsection (b)(2) further provides that the judge may not include in the estate “the value” of retirement benefits acquired before the marriage or any interest or appreciation thereon. Subsection (b)(3) provides that the total “amount” of the benefits payable to the noncovered spouse shall not exceed 50% of the retirement benefits that may be considered by the court. Finally, subsection (c) provides that in the absence of an agreement by the parties to pay the non-covered spouse’s portion in one or more installments, the retirement benefits shall be payable when the covered spouse begins receiving the retirement benefits or when the covered spouse reaches age 65. These amendments became effective on January 1, 1996. See Ala. Acts 1995, Act No. 95-549, § 3.

In McAlpine v. McAlpine, 865 So.2d 438 (Ala.Civ.App.2002), this court reversed a judgment awarding a percentage of retirement benefits on the ground that the percentage related to the future, not the present, value of the benefits in violation of § 30-2-51(b). The court held that the noncovered spouse had failed to present sufficient evidence of the present value of the benefits that had accumulated during the marriage. The court noted that valuation of retirement benefits can be a difficult task that may require expert testimony from a certified public accountant or an actuary. 865 So.2d at 441 n. 1 (citing Joy M. Frieberg, Sizing Up the Pension Pot, 24 Fam. Advoc. 12 (Fall 2001)). Nevertheless, the court held that a trial court could not award the noncovered spouse any portion of the covered spouse’s retirement benefits absent evidence of valuation. See also Walker v. Walker, 695 So.2d 58 (Ala.Civ.App.1997) (holding, in the first case to consider the effect of § 30-2-51 (b), that, in the absence of any evidence of the present value of a covered spouse’s future retirement benefits and any evidence that the covered spouse had a vested interest in those future retirement benefits, a trial judge did not abuse its discretion in failing to award the noncovered spouse a portion of the retirement benefits).

Since McAlpine was decided, at least two judges on this court have argued that the statute should not be construed to require evidence of the present value of retirement benefits accumulated during the marriage. In a special concurrence in Wilkinson v. Wilkinson, 905 So.2d 1, 3-6 (Ala.Civ.App.2004) (Murdock, J., concurring specially), and in Wilson v. Wilson, 941 So.2d 967, 971-73 (Ala.Civ.App.2005) (Murdock, J., concurring in the judgment of reversal only), Judge Murdock expressed his belief that the ambiguous language of § 30-2-51(b) and the impracticality of requiring parties to present, and requiring trial courts to evaluate, complex and technical expert evidence warranted a conclusion that in some cases a trial court may simply award a percentage of the retirement benefits attributable to the marital period and leave it to the retirement-plan administrator to calculate the specific amount due when the retirement benefits become payable. Judge Murdock cautioned, however, that a trial court might still be required to determine the present value of the retirement benefits in other cases to assure an equitable distribution of property. Wilkinson, 905 So.2d at 6 (Murdock, J., concurring specially).

In another special writing in Wilkinson, supra, Presiding Judge Yates noted the difficulty in determining the present value of retirement benefits, particularly in cases involving defined-benefit plans that use variables such as age, length of service, and wage levels to determine the amount of a retirement benefit. 905 So.2d at 10 (Yates, P.J., concurring in the result). Furthermore, Presiding Judge Yates also pointed out that many assumptions have to be made regarding job tenure, life expectancy, and wage fluctuations. 905 So.2d at 14. Presiding Judge Yates argued that the statutory language did not require a present-value calculation and that a trial court could award a noncovered spouse a percentage of a covered spouse’s retirement benefits accumulated during the marriage. 905 So.2d at 14-16.

Despite these objections, since McAlpine was decided this court has consistently held that a trial court has no discretion to award any portion of a covered spouse’s retirement benefits in the absence of evidence of the present value of the retirement benefits accumulated during the marriage. See Applegate v. Applegate, 863 So.2d 1123 (Ala.Civ.App.2003); Langley v. Langley, 895 So.2d 971 (Ala.Civ.App.2003); Dunn v. Dunn, 891 So.2d 891 (Ala.Civ. App.2004); Wilson v. Wilson, supra; and Capone v. Capone, 962 So.2d 835 (Ala.Civ.App.2006).

I agree with Presiding Judge Crawley’s statement in Wilson, supra, that the statute unambiguously requires evidence of the present value of future retirement benefits in cases in which the trial judge exercises his or her discretion to include retirement benefits in a property division. 941 So.2d at 971 (Crawley, P.J., concurring in the result). The statute plainly states that the judge “may include in the estate of either spouse the present value of any future ... retirement benefits 30-2 — 51(b). Obviously, a judge may only include the present value of future retirement benefits in the estate of a spouse based on evidence establishing that value. As the party seeking a portion of the benefits, it necessarily follows that the noncovered spouse bears the burden of proving the present value. If the noncov-ered spouse fails to discharge this burden, the trial court may not award any portion of the retirement benefits to the noncov-ered spouse. Given the clear language employed and the consistent application of the statute since its enactment, I find no compelling reason to reconsider the construction this court has placed on the statute.

I recognize the difficulty and expense of pinpointing the exact present value of future retirement benefits under some pension plans. Indeed, many state courts have adopted methods of property division that obviate the need for reducing future retirement benefits to present value. See Brett R. Turner, Equitable Distribution of Property § 6.11 (2d ed.1994) (cited in Wilkinson, 905 So.2d at 11-15 (Yates, P.J., concurring in the result)). Some of those states have adopted the “deferred-distribution” method by which a trial court simply determines the formula for calculating the amount to be distributed to the parties when retirement benefits become available in the future. See Wilkinson, 905 So.2d at 12 (quoting Pulliam v. Pulliam, 796 P.2d 623, 626 (Okla.1990)). Using that method, a form of which Judge Murdock and Presiding Judge Yates advocated in their special writings in Wilkinson, and which Judge Pittman advocates today in his special writing, in which he dissents in part, there is no need for calculating the present value of future retirement benefits, see Wilkinson, 905 So.2d at 15 (Yates, P.J., concurring in the result), thus avoiding all the impracticalities associated with producing and presenting evidence bearing on the issue.

Before the amendment of § 30-2-51, this court would have been free to follow other state courts and adopt the “deferred-distribution” method of dividing future retirement benefits. However, our legislature has now directed the manner in which future retirement benefits must be divided, which includes a preliminary determination of the present value of future retirement benefits accumulated during the marital period. This court may not override the unambiguous language of the statute based on its own particular view of the wisdom or fairness of the statute. Ivey v. State, 821 So.2d 937 (Ala.2001).

With that said, although the statute clearly requires a present-value calculation, the statute does not mandate any particular method for making that calculation. Caselaw from other jurisdictions evidences two major approaches — the actuarial method and the new Pension Benefit Guaranty Corporation (“PBGC”) method. See Dylan A. Wilde, Obtaining an Equitable Distribution of Retirement Plans in a Divorce Proceeding, 49 S.D.L.Rev. 141, 152-53 (2003). Under the actuarial method,

“an estimate of the accrued benefits must be determined along with the amount and frequency of each potential periodic payment. The present value of each of these periodic payments must then be calculated for taking into consideration discounting factors for interest, mortality, and vesting. The present value- of each periodic payment is then added together to determine the present value of the retirement plan. Generally, this present value calculation must be established through expert testimony.”

49 S.D.L.Rev. at 152-53 (footnotes omitted). See also In re Marriage of Harrison, 13 Kan.App.2d 313, 769 P.2d 678 (1989). Under the newer and more popular PBGC method,

“the present value of all possible future payments must be calculated by using the mortality and interest rates found in a quarterly survey conducted by annuity writing insurance companies. The present values of each possible payment are added together with the expenses incurred by the plan administrator, called loading expenses. This method is more popular because the interest rates used provide a more accurate reflection of the rates used in the financial market. Therefore, the replacement cost of the annuities that will be needed to fund the future benefit payments are easier to ascertain. This helps reduce the speculation involved in the present value calculation.”

49 S.D.L.Rev. at 153 (footnotes omitted); see also 3 William M. Troyan et al., Valuation & Distribution of Marital Property § 45.23 (1987); Bishop v. Bishop, 113 N.C.App. 725, 440 S.E.2d 591 (1994) (detailing five steps in PBGC method). Some companies issue pension valuation reports using the PBGC method for minimal cost. See Wiggins v. Walsh, (No. HA 671-2, July 29, 1991) (Va.Cir.Ct.1991) (not reported) (noting “LAWData, Inc.” offered to appraise pension benefits for $100).

In McAlpine and its progeny, the party who sought a division of the retirement benefits failed to present any evidence of the present value of those benefits. Members of this court have expressed a belief that this failure emanates from the mathematical difficulty and undue expense involved in calculating the present value of retirement benefits and presenting evidence of that present value through expert testimony. However, the preceding brief discussion illustrates that those concerns may have been overstated. It appears that the experience of other jurisdictions has yielded simple and inexpensive methods for determining the present value of even defined-benefit pension plans. Those methods of valuation do not conflict with the plain language of § 30-2-51, and, in an appropriate case, I would endorse either method as a valid way to determine present value.

In this particular case, the wife made no attempt to present any evidence of the present value of the retirement benefits accumulated during the marriage despite notice that her failure to do so would result in a denial of any portion of those retirement benefits. Based on the fact that she had available to her simple and inexpensive means to prove present value that conform to the terms of the statute, I cannot agree with the implication in Judge Pittman’s special writing that it would be inequitable to the wife, or any other spouse seeking division of retirement benefits, to continue to apply the statute in accordance with its plain terms. Therefore, I concur in the decision to reverse the alimony and property-division awards.

PITTMAN, Judge,

concurring in part and dissenting in part.

I concur to affirm the trial court’s custody award.

As I have noted previously, the valuation of retirement benefits in divorce cases has become a contentious problem for our courts. See Capone v. Capone, 962 So.2d 835, 842 (Ala.Civ.App.2006) (Pittman, J., concurring in part and dissenting in part). The main opinion holds that that portion of the judgment awarding the wife 45% of the husband’s future military retirement benefits must be reversed and that the trial court may not, on remand, award any of those benefits to the wife.

This court has been grappling with subsection (b) of § 30-2-51, Ala.Code 1975, ever since its enactment by the Alabama Legislature in 1995. The statute authorizes a court granting a divorce to apportion as a marital asset “the present value of any future or current retirement benefits [ ] that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed.” AJa.Code 1975, § 30-2-51(b). The trial court’s discretion to make this type of award is limited by three additional conditions contained in the statute: the parties must have been married for 10 years, the award must reflect only benefits acquired during the marriage, and the award must not exceed 50% of the total amount of divisible benefits.

That statutory authorization works reasonably well when dividing individual retirement accounts or other tax-deferred retirement accounts, such as retirement plans authorized pursuant to 26 U.S.C. § 401 (k), because those accounts typically contain a definite sum of money that can be divided at the time the judgment is entered. However, the difficulty in applying § 30-2-51 (b) is readily apparent any time a trial court must attempt to divide a vested interest in a future benefit stemming from a defined-benefit or a defined-contribution retirement plan between divorcing parties. See generally Wilson v. Wilson, 941 So.2d 967 (Ala.Civ.App.2005); Wilkinson v. Wilkinson, 905 So.2d 1 (Ala.Civ.App.2004); Applegate v. Applegate, 863 So.2d 1123 (Ala.Civ.App.2003); and McAlpine v. McAlpine, 865 So.2d 438 (Ala.Civ.App.2002).

Upon reflection, I have reconsidered my votes to concur in Wilson, Wilkinson, Applegate, and McAlpine, supra. Those decisions, in my view, placed an undue emphasis on requiring proof of the “present value” of the particular retirement benefits at issue. I find no language in the statute expressly requiring the calculation of the present value of an award of retirement benefits; the pertinent statutory requirement is that the award be premised upon retirement moneys acquired during the marriage. The problem with our cases requiring a “present value” calculation is that the value of a participant’s assets in, or a participant’s future income from, a defined-benefit or defined-contribution retirement plan cannot always be easily reduced to a sum certain at the time the divorce complaint is filed. At best, rough estimates can be mathematically derived based upon evidence of a participant’s present salary and from retirement projections based upon assumptions regarding continued payment of that salary using the compensation tables — if any exist — of the particular retirement plan. At worst, a trial court’s calculations could require hours of actuarial and accounting testimony in order to support the equity of a potential retirement-benefits division.

I believe the intent of the legislature was clear when it created the conditions under which vested retirement benefits could be divided between divorcing parties as a marital asset. In my view, if the conditions contained in § 30-2-51(b) have been satisfied, a trial court may, in its discretion, award a specific percentage of vested retirement benefits that have been accumulated during the parties’ marriage. The retirement-plan administrator may then be left to make the necessary calculations as to what specific amount is to be sent to the noncovered spouse at the time that the spouse enrolled in the plan actually begins to draw benefits.

In my view, the trial court received sufficient evidence to support an award to the wife of a portion of the husband’s retirement benefits. Rather than reversing that award and instructing the trial court to award those benefits to the husband, I would reverse the award, remand the action only for a determination of benefits acquired during the marriage, and direct an award to the wife of not more than 50% of those benefits. To the extent that the main opinion does not allow the wife any portion of the husband’s retirement benefits because of her failure to adduce evidence at trial of the “present value” of those benefits, I respectfully dissent.

      . In this case, the record indicates that the husband had served in the military for 16 years and 8 months at the time he filed his divorce complaint. Commissioned officers vest in an Army retirement only after completing 20 years of service. See 10 U.S.C. § 3911. Although the wife provided evidence indicating that the parties had been married from December 1986 until the time of trial in February 2005, the evidence indicates that the husband did not have a vested military retirement even by the time of trial. However, because the husband has not contended that his future retirement benefits are not divisible on the basis that they are not "vested” under § 30-2-51(b), we do not address the divisibility of those benefits.

      . Like the main opinion, I do not reach the question whether § 30-2-51 permits division of nonvested benefits.


author: THOMAS, Judge.

text:
    TALLADEGA COUNTY DEPARTMENT OF HUMAN RESOURCES v. M.E.P. and F.C.P.
    2060202.
    Court of Civil Appeals of Alabama.
    June 1, 2007.

      Troy King, atty. gen., and Sharon E. Ficquette and Lynn S. Merrill, asst, attys. gen., Department of Human Resources.
    Morris L. Shaw, Jr., Childersburg, for appellee M.E.P.
    Jeb Fannin, Talladega, for appellee F.C.P.
   THOMAS, Judge.

M.E.P. (“the father”) and F.C.P. (“the mother”) are the parents of three children, A.M.P., M.T.P., and C.L.P. On December 3, 2004, the parents were' arrested at a drug raid, incarcerated in the Talladega County jail, and charged with possession of methamphetamine. The Talladega County Department of Human Resources (“DHR”) took custody of two of the children that day based upon emergency dependency petitions. The third child was in Georgia with an aunt at the time; the aunt returned the child to Alabama at DHR’s request. All three children were found dependent and placed in DHR’s custody.

DHR moved to terminate the parents’ parental rights in November 2005. After a trial in October 2006, the trial court entered a judgment declining to terminate the parents’ parental rights on the basis that DHR had not presented clear and convincing evidence that the parents’ circumstances were unlikely to change in the foreseeable future and stating that, in the court’s opinion, termination of the parents’ rights at the present time was not in the best interest of the children. After its postjudgment motion was denied, DHR appealed, arguing that the trial court had erred by not terminating the parental rights of both parents.

“In order to terminate parental rights, the trial court must find by clear and convincing evidence that the child is dependent and that an alternative less drastic than termination of parental rights is not available. Ala.Code 1975, §§ 12-15-65(e), 26-18-1 to 26-18-10; Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). ‘The trial court’s decision in proceedings to terminate parental rights is presumed to be correct when the decision is based upon ore tenus evidence, and such a decision based upon such evidence will be set aside only if the record shows it to be plainly and palpably wrong.’ Ex parte State Dep’t of Human Res., 624 So.2d 589, 593 (Ala.1993). ‘This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility.’ Ex parte Fann, 810 So.2d 631, 633 (Ala.2001). However, the party seeking to terminate parental rights has -the burden to present clear and convincing evidence showing that the parent is not capable or is. unwilling to discharge his or her parental responsibilities and that there are no viable alternatives to terminating parental rights. Ex parte Ogle, 516 So.2d 243, 247 (Ala.1987); see also K.W. v. J.G., 856 So.2d 859, 874 (Ala.Civ.App.2003) (holding that the party seeking to terminate the parental rights of another bears the burden of proving that termination of those rights is the appropriate remedy).
“When deciding whether to terminate parental rights, ‘the primary focus of a court ... is to protect the welfare of children and at the same time to protect the rights of their parents.’ Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). Thus, ‘a court should terminate parental rights only in the most egregious of circumstances.’ Id. Beasley set forth a two-pronged test that must be applied in terminating an individual's parental rights. First, unless the petitioner is a parent of the child, the court must make a ‘finding of dependency.’ 564 So.2d at 954. For a finding of dependency, the court must consider whether there are grounds for terminating the parental rights, including but not limited to the grounds specified in § 26-18-7. 564 So.2d at 954. After making a finding of dependency, the court must ensure that ‘all viable alternatives to a termination of parental rights have been considered.’ 564 So.2d at 954.
“ ‘Once the court has complied with this two-prong test — that is, once it has determined that the petitioner has met the statutory burden of proof and that, having considered and rejected other alternatives, a termination of parental rights is in the best interest of the child — it can order the termination of parental rights.’
564 So.2d at 954-55.”

Ex parte T.V., 971 So.2d 1, 4-5 (Ala.2007) (footnote omitted).

The statutory grounds upon which a juvenile court may terminate parental rights are set out in Ala.Code 1975, § 26-18-7. In part, the statute provides that termination of parental rights is an option when “the parents of [the] child are unable or unwilling to discharge their responsibilities to and for the child ... and such conduct or condition is unlikely to change in the foreseeable future.” Ala.Code 1975, § 26-18-7(a). Subsections 26-18-7(a)(1)-(6) and (b)(1)-(4) list factors a juvenile court must consider in making the difficult decision to terminate parental rights. Among those factors are a parent’s “[cjonviction of and imprisonment for a felony,” § 26-18-7(a)(4), that “reasonable efforts by [DHR] ... leading toward the rehabilitation of the parents have failed,” § 26-18-7(a)(6), and, when the child is no longer in the custody of the parents, the “[l]ack of effort by the parent[s] to adjust [their] circumstances to meet the needs of the child in accordance with agreements reached ... with [DHR],” § 26-18-7(b)(4). In addition, the court may consider a parent’s “excessive use of ... controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.” § 26-18-7(a)(2).

At trial, DHR presented the testimony of Ashley Cooper, the DHR caseworker assigned to the family. Cooper testified that she had offered services to the parents to no avail. According to Cooper, DHR offered supervised visitation, transportation, drug assessment, psychological evaluations, and counseling to the parents. Cooper noted that the parents lived in Georgia for a part of the time the children were in DHR’s care; she did not specify exactly when the parents resided in Georgia. The father, who was present for the termination trial, testified that he and the mother moved to Georgia for a three-month period beginning in March 2005.

Cooper said that she explained to the mother what was required to secure the return of the children upon the mother’s release from jail in January 2005; she did not mention any conversation with the father. However, Cooper did testify that the parents had attended Individualized Service Plan (“ISP”) meetings, at which the services being offered by DHR were discussed. Cooper indicated that DHR had attempted to set up drug assessments for the parents; she said that the father had met once with Patsy Isabell, the DHR drug counselor, but that the mother had not. However, the mother, who was present at the termination trial, testified that she had met once with Isabell in August 2005, approximately one month before she was incarcerated for a second time in September 2005. The father testified that Cooper had not tried to set up the drug assessment or mention other services until the month before his second arrest in November or December 2005. Cooper did not further explain what counseling DHR had sought to offer the parents or what psychological evaluations the parents had failed to complete, nor did she name any counselors or psychologists to whom the parents were referred.

Cooper testified that she had contacted all four relatives the parents had provided as potential resources. Although all four expressed a desire to take custody of the children, Cooper said that only one had taken the initiative to file a petition for custody. The relative that had done so, T.A., the father’s sister, withdrew her petition in September 2006.

As noted above, the mother was incarcerated through the month of December 2004. The mother made bond and was released in January 2005. She visited with the children at that time. The mother attended 14 of the 18 scheduled visitations with the children. The mother was also subjected to random drug tests at certain visitations; although the mother’s first drug test was negative, the mother tested positive for methamphétamine on four occasions: once in May 2005, twice in August 2005, and once in September 2005. The mother also tested positive for marijuana on one of those occasions and she tested positive for amphetamine on two others. She missed at least three requested drug tests that DHR had scheduled in June and July 2005.

The father was released from jail in March 2005 after spending three months in jail. He tested positive for methamphetamine on both of the drug tests that he took in August and September 2005; he also tested positive for cocaine on both tests and positive for marijuana on the September test. The father, like the mother, missed three drug tests in June and July 2005; in addition, he missed a drug test in May 2005. Although it is clear from a reading of the record that the father missed many scheduled visitations, the actual number of visits the father attended is not clear. The father did say that he was working at the time of many scheduled visitations and that he needed to work in order to pay the attorney fees, fines, and court costs arising from his December 2004 arrest.

The mother was arrested on a second drug charge in August or September 2005 arising from her possession of two “pills” in Calhoun County. Ultimately, she was sentenced to five years in prison on the possession-of-methamphetamine charge arising in Talladega County and to two years in prison on the possession charges arising out of each of the two pills she possessed in Calhoun County. The father was again arrested for possession of methamphetamine in November or December 2005. He was ultimately sentenced to 10 years in prison on the methamphetamine charges arising in Talladega County and to 2 years in prison on the methamphetamine charges arising in Calhoun County.

The mother was incarcerated in the Calhoun County jail until April 2006, when she was transferred to Julia Tutwiler Prison (“Tutwiler”). The mother did not attend any drug-rehabilitation programs while she was incarcerated at Tutwiler. The mother was transferred to a work-release facility in Birmingham in September 2006, where the mother had just begun working as a housekeeper in a motel shortly before the termination trial. The mother indicated that the housekeeping job would be available to her after her release and that the motel would allow her to transfer to a location closer to where she lived; according to the mother, she planned to try to find an inexpensive trailer to rent or to move to Georgia to live with one of the father’s sisters upon her release. The mother was scheduled to be released on May 18, 2007.

The father was incarcerated in Draper Correctional Facility (“Draper”). While at Draper, the father completed the SAP program, a drug-treatment program offered by the Department of Corrections. The father also completed an anger-management course, a self-concept class, and three other self-improvement classes offered at Draper. The father explained that he had enrolled in the SAP program and the other classes because he had realized that he was addicted to methamphetamine and that he needed help to overcome the addiction; he stated that being in prison had actually made him a better person. In addition to his taking advantage of the drug-rehabilitation and self-improvement classes at Draper, the father had begun working toward his auto-body-repair certificate. He explained that he would be able to transfer his credits toward this certificate to a trade school or junior college upon his release so that he could complete his education. The father testified that he would be eligible for parole consideration in August 2007. The father was scheduled to be released on December 15, 2008.

DHR argues on appeal that the trial court abused its discretion when it determined that DHR had not presented clear and convincing evidence that the parents’ condition was not likely to change in the foreseeable future and that termination of the parents’ parental rights was not in the children’s best interest. As DHR points out, this court has often stated that there is a point at which the child’s need for permanency and stability will overcome the parent’s rights to rehabilitation by DHR. M.W. v. Houston County Dep’t of Human Res., 773 So.2d 484, 487 (Ala.Civ.App.2000). The point at which the child’s needs overcome the parent’s right to be rehabilitated must be determined based on the facts of each individual case.

DHR notes that, even if the mother were released in May 2007, she would first need to find (or continue, if the housekeeping job were transferable) stable employment and establish a suitable residence; DHR correctly observes that it could not place the children with her without first having her demonstrate the ability to provide for both herself and the children. The mother never worked before her incarceration, and she has never had to provide for herself, let alone a family of four. Even if the father were able to secure release from prison in August 2007 and join the mother, he, too, would have to prove his ability to find and maintain stable employment, secure a suitable residence for the family, and provide sufficient income for the family.

The largest hurdle, by far, is the parents’ admitted addictions to methamphetamine, a highly addictive drug. Although the father has completed drug rehabilitation in prison, his ability to remain drug free has not been tested outside of prison. The mother,- unlike the father, has not completed drug rehabilitation, and she, too, has not shown an ability to remain drug free outside of the prison environment. The mother admitted at trial that she came to visits with the children while on methamphetamine despite the fact that she knew she could be tested by DHR. Neither parent was able to remain drug free, even while the custody of their children hung in the balance and they faced charges stemming from their possession of methamphetamine. In fact, the parents made no effort to overcome their addiction at all in 2005. Thus, even if the parents are released in the summer of 2007, the children will remain in foster care for at least several months, and more likely close to a year, before the parents could possibly be permitted to resume custody. The children deserve to have a stable custody arrangement before 2008, having spent, at present, approximately two and one-half years in foster care.

Although we agree that the parents might well have demonstrated that they have some ability, and a desire, to change upon their respective releases from prison, we cannot agree with the trial court’s conclusion that DHR failed to present clear and convincing evidence that the condition resulting in the parents’ inability to care for their children would not change in the foreseeable future. The father’s release date is uncertain, and the mother’s ability to secure and maintain employment and a suitable residence while remaining drug free is untested. Likewise, we cannot agree that DHR did not establish that termination of the parental rights of both parents was not in the best interest of these children, who deserve a permanent placement instead of continued foster placement for a year or more while awaiting their parents’ possible, but not certain, rehabilitation.

REVERSED AND REMANDED.

PITTMAN and BRYAN, JJ., concur.

THOMPSON, P.J., and MOORE, J„ dissent, without writing.


text:
    SINGER ASSET FINANCE COMPANY, L.L.C. v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY.
    2060157.
    Court of Civil Appeals of Alabama.
    June 1, 2007.

      Dayna R. Burnett and Charles N. Parnell III of Parnell & Crum, P.A., Montgomery, for appellant.
    Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellee.
   THOMAS, Judge.

On December 29, 2005, Singer Asset Finance Company, L.L.C. (“Singer”), sued Connecticut General Life Insurance Company (“CGLIC”), alleging breach-of-contract, conversion, and negligence claims. CGLIC answered and filed motions, pursuant to Rule 12(b)(6), Ala. R. Civ. P., to dismiss Singer’s claims. The trial court granted CGLIC’s motions and dismissed Singer’s claims; with respect to the negligence claim, the trial court awarded CGLIC an attorney fee and costs pursuant to the Alabama Litigation Accountability Act (“ALAA”), § 12-19-270 et seq., Ala. Code 1975.

Singer appeals, arguing that the dismissal of its claims against CGLIC was erroneous because, it says, it can prove a set of circumstances that would entitle it to relief under each claim. Singer further argues that the trial court’s order awarding CGLIC an attorney fee and costs was erroneous.

We are also releasing today an opinion in another appeal by Singer; in that appeal, Singer sought review of a summary judgment against it on Singer’s claim against the estate of Richard H. Rutherford. See Singer Asset Fin. Co. v. Estate of Rutherford, [Ms. 2050500, June 1, 2007] — So.2d - (Ala.Civ.App.2007). The facts underlying both appeals are essentially the same and are undisputed.

Richard H. Rutherford was injured in an Atlantic City, New Jersey, casino. In settlement of his claim against the casino, he agreed in 1985 to a structured settlement with North River Insurance Company (“North River”), the casino’s insurer. The settlement agreement provided, among other things, that Rutherford would receive five periodic payments according to the following schedule:

$15,000.00 payable on April 1,1990;
$15,000.00 payable on April 1, 1995;
$20,000.00 payable on April 1, 2000;
$85,000.00 payable on April 1, 2005; and
$50,000.00 payable on April 1, 2010.

In accordance with the settlement agreement, North River purchased a guaranteed investment annuity contract from CGLIC in order to fund its obligation to make the periodic payments to Rutherford. North River paid CGLIC a lump-sum payment, and in return, CGLIC obligated itself to North River to make the annuity payments to the payee, Rutherford, according to the terms of the settlement agreement between North River and Rutherford.

According to the settlement agreement between Rutherford and North River— and as provided in the annuity contract between CGLIC and North River — if Rutherford died before the final proceeds of the settlement were disbursed, then CGLIC was to pay the commuted value of any remaining proceeds to Rutherford’s named beneficiary or to Rutherford’s estate. The named beneficiary of the annuity contract was Rutherford’s wife, Sue. Sue Rutherford died in 1996.

On April 30, 1998, Rutherford assigned his right to receive two of the periodic payments to Mutual BanCorp in return for an immediate cash payment of $23,421. The assigned payments were the April 1, 2000, payment for $20,000, and the April 1, 2005, payment for $35,000. On the same day, Mutual BanCorp provided written notice of the assignment and a change of the payee’s address to CGLIC and North River. On May 11, 1998, Mutual BanCorp assigned to Singer its right to receive the two periodic payments. CGLIC made the April 1, 2000, payment of $20,000 to Singer. Before the April 1, 2005, payment became due, however, Rutherford died on May 24, 2002.

On April 2, 2003, almost a year after Rutherford’s death, Roy F. King, Jr., was appointed as the administrator of Rutherford’s estate (King is hereinafter referred to as “the administrator”). Singer alleges that it did not have knowledge of Rutherford’s death or of the probate of Rutherford’s estate until approximately November 9, 2004. Some time after November 9, 2004, Singer also learned that CGLIC had previously made a single lump-sum payment of $46,704.65 — representing the commuted value of the remaining annuity payments — to the estate. On November 12, 2003, the administrator paid substantially all of the assets of the estate to Rutherford’s son and sole heir, Christopher Rutherford.

I. Standard of Review

When a complaint is dismissed pursuant to Rule 12(b)(6), the following standards apply:

“ ‘ “On appeal, a dismissal is not entitled to a presumption of correctness. 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 or her] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he or she] may possibly prevail. 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.” ’ ”

Culver v. Lang, 935 So.2d 475, 477 (Ala.Civ.App.2006) (quoting Marks v. Tenbrunsel, 910 So.2d 1255, 1258 (Ala.2005)) (internal citations omitted). The annuity contract between CGLIC and North River was attached to Singer’s complaint, along with copies of the settlement agreement between North River and Rutherford, the “Notice of Assignment” from Mutual Ban-Corp to both CGLIC and North River, and a letter from CGLIC in response to Mutual BanCorp’s “Notice of Assignment.” Therefore, those documents became part of Singer’s pleadings pursuant to Rule 10(c), Ala. R. Civ. P.

II. Breach of Contract

As the only payee named in the annuity contract between CGLIC and North River, Rutherford was the third-party beneficiary of the annuity contract. Singer argues that, as the assignee of Rutherford’s assignee, it stepped into Rutherford’s shoes and became the third-party beneficiary of the annuity contract insofar as it obligated CGLIC to pay Rutherford $35,000 on April 1, 2005.

“ ‘[I]t has long been the rule in Alabama that one who seeks recovery as a third-party beneficiary of a contract must establish that the contract was intended for his direct, as opposed to his incidental, benefit.’ Mills v. Welk, 470 So.2d 1226, 1228 (Ala.1985). ‘To recover under a third-party beneficiary theory, the complainant must show: 1) that the contracting parties intended, at the time the contract was created, to bestow a direct benefit upon a third party; 2) that the complainant was the intended beneficiary of the contract; and 3) that the contract was breached.’ Sheetz, Aiken & Aiken, Inc. v. Spann, Hall, Ritchie, Inc., 512 So.2d 99, 101-02 (Ala.1987).”

McGowan v. Chrysler Corp., 631 So.2d 842, 848 (Ala.1993).

CGLIC argues that because Rutherford did not have the right to alter the payee of the contract, he therefore had no right to obligate CGLIC to make any of the payments due under the annuity contract to his assignee. This argument assumes that because the third-party beneficiary could not change the named payee, then the third-party beneficiary could not assign its own right to receive payment so long as it was the named payee. It was this right to receive payment that Rutherford assigned, as a third-party beneficiary, not the right to alter the terms of the agreement. Mutual BanCorp — the original assignee — did not request that the payee be changed, it requested only that the payment address be changed, and that North River and CGLIC be on notice that Rutherford had assigned his right to receive the payments. Although Rutherford had no right to change the terms of the annuity contract, including the right to change the payee, there is no language in the annuity contract that prevented Rutherford from assigning whatever interests or rights he had under the contract, i.e., the right to receive the payments from CGLIC, so long as he was named as the payee.

When a party assigns its rights under a contract to an assignee, the as-signee steps into the shoes of the assignor and possesses all the rights the assignor originally possessed, but nothing more. Green Tree Fin. Corp. v. Channell, 825 So.2d 90, 95 (Ala.2002); and Broadwell v. Imms, 14 Ala.App. 437, 441, 70 So. 294, 295 (1915). See also Ocwen Loan Servicing, LLC v. Washington, 939 So.2d 6 (Ala.2006); Brookwood Med. Ctr. v. Celtic Life Ins. Co., 637 So.2d 1385 (Ala.Civ.App.1994).

In Georgia Power Co. v. Partin, 727 So.2d 2 (Ala.1998), the Alabama Supreme Court repeated the rule that a third-party beneficiary may not claim the benefits of a contract without being bound by the limitations of the contract:

“It is a well-established principle of Alabama law that a contract made for the benefit of a third person may, at his election, be accepted and enforced by him. Michie v. Bradshaw, 227 Ala. 302, 149 So. 809 (1933). However, ‘[i]f he claims the benefits [of the contract], he also assumes the burdens.’ Michie, 227 Ala. at 308, 149 So. at 814. See, also, Ex parte Dyess, 709 So.2d 447 (Ala.1997) (nonsignatory plaintiff claiming the benefit of a contract as a third-party beneficiary is subject to arbitration agreement within that contract). ‘The law is clear that a third party beneficiary is bound by the terms and conditions of the contract that it attempts to invoke. “The beneficiary cannot accept the benefits and avoid the burdens or limitations of a contract.” ’ Interpool Ltd. v. Through Transport Mut. Ins. Ass’n Ltd., 635 F.Supp. 1503, 1505 (S.D.Fla.1985), quoting Trans-Bay Engineers & Builders, Inc. v. Hills, 551 F.2d 370, 378 (D.C.Cir.1976). See, also, Dunn Constr. Co. v. Sugar Beach Condominium Ass’n, Inc., 760 F.Supp. 1479 (S.D.Ala.1991); Lee v. Grandcor Medical Systems, Inc., 702 F.Supp. 252, 255 (D.Colo.1988) (‘A third party beneficiary must accept a contract’s burdens along with its benefits.’).”

727 So.2d at 5. Regarding periodic payments, the annuity contract states:

“PAYMENT PROVISIONS
“We[, CGLIC,] agree to make the payments set forth in the Schedule. These payments will be made to the Payee named in the Schedule [i.e., Rutherford], if he is living on the date that the payment is due. If not, we will pay the Beneficiary named in the Schedule. If the Beneficiary dies before all payments have been made, we will pay the estate of the last surviving Payee. If you[, North River,] have not chosen a Beneficiary, then we will pay you, the Owner.
“If there is no Payee or Beneficiary alive, we will pay any remaining guaranteed payments in a lump sum. The amount of the lump sum will be the present value of the remaining payments, figured at the rate of interest on which the premium was based. Except as set forth above, neither you, nor any Payee or Beneficiary, shall have the right to demand payment in a lump sum of the present value of future payments.”

(Emphasis added.)

Singer, the assignee, has no greater rights than Rutherford, the assignor, had under the contract. See Green Tree, supra. According to the express terms of the annuity contract, the scheduled payments were to be made to Rutherford, the payee. If Rutherford died, however, and the beneficiary was no longer living, then a lump-sum commuted payment of any remaining amounts due under the schedule agreed to in the annuity contract was to be made to Rutherford’s estate. Consequently, Rutherford’s right to receive payments under the annuity contract no longer existed after his death.

Under the annuity contract, Rutherford was the payee; Rutherford’s wife was the beneficiary. Rutherford’s wife predeceased him. Thus, after Rutherford’s death in 2002, there was no payee or beneficiary alive and CGLIC performed its obligation under the express terms of the annuity contract by making a lump-sum payment to Rutherford’s estate.

Rutherford might have obligated himself to ensure payment to Singer of the April 1, 2000, payment (which had already been paid to Singer), and the April 1, 2005, payment of $35,000, but that obligation was personal to Rutherford and was not an obligation of CGLIC under its annuity contract with North River. We do not hold that Singer has no right to the money in question. Instead, we hold that if Singer, as Rutherford’s assignee, has a right to the scheduled payment of $35,000 that was due to be paid to Rutherford on April 1, 2005— or a right to some discounted final lump-sum portion of that payment — that right arises against some entity other than CGLIC.

Because CGLIC performed its obligations under the annuity contract with North River, Singer can prove no set of facts under which it would be entitled to recover against CGLIC on its breach-of-contract claim. The trial court correctly dismissed the breach-of-contract claim.

III. Conversion

“To constitute conversion, there must be a wrongful taking or a wrongful detention or interference, or an illegal assumption of ownership, or an illegal use or misuse of another’s property.... Conversion requires ‘a wrongful exercise of dominion over property in exclusion or defiance of a plaintiffs rights, where said plaintiff has ... the immediate right to possession.’ Empiregas of Gadsden, Inc. v. Geary, 431 So.2d 1258, 1260 (Ala.1983).
“Generally, an action will not lie for the conversion of cash. However, if the cash at issue is ‘specific money capable of identification,’ claims of conversion may be appropriate.”

Covington v. Exxon Co., U.S.A., 551 So.2d 935, 938 (Ala.1989).

Singer contends that CGLIC wrongly interfered with property that belonged to Singer by virtue of Singer’s being the assignee of Rutherford’s right to receive a payment of $35,000 on April 1, 2005. Specifically, Singer argues that CGLIC converted $35,000 that, Singer says, CGLIC was obligated to pay Singer under the terms of the assignment contracts between Rutherford and Mutual BanCorp, and then between Mutual Ban-corp and Singer. That argument overlooks the fact that CGLIC was not a party to the assignment contracts. As we have previously determined, CGLIC fully performed its obligations under the contract to which it was a party — the annuity contract with North River — by paying a commuted value of the undisbursed proceeds of the annuity to Rutherford’s estate.

Therefore, Singer can prove no set of facts under which CGLIC’s payment to the estate was “wrongful.” Because we hold that CGLIC’s actions were not “wrongful,” we do not discuss whether an action for conversion of a cash payment would lie in this particular case. The trial court correctly dismissed Singer’s conversion claim.

IV. Negligence

The statutory limitations period for filing a negligence action is two years. § 6-2-38, Ala.Code 1975; Boyce v. Cass-ese, 941 So.2d 932 (Ala.2006). The statute of limitations begins to run from the time the plaintiffs cause of action accrues, and there is no “discovery rule” for negligence claims that would toll the running of the statute of limitations from the time the cause of action was “discovered” by the plaintiff. See id.; Henson v. Celtic Life Ins. Co., 621 So.2d 1268, 1274 (Ala.1993); and Desouza v. Lauderdale, 928 So.2d 1035 (Ala.Civ.App.2005).

Singer does not argue that its negligence claim accrued less than two years before the filing of its complaint against CGLIC. Nor does it argue that a discovery rule should apply to its negligence claim. Rather, citing Russell Petroleum Corp. v. Environ Products, Inc., 333 F.Supp.2d 1228 (M.D.Ala.2004), Singer argues for the first time on appeal that a fraudulent concealment by CGLIC prevented Singer from learning of its negligence claim against CGLIC, and, therefore, Singer says, that fraudulent concealment tolled the running of the statute of limitations. Id. (citing Ex parte Floyd, 796 So.2d 303, 307 (Ala.2001)).

This court does not consider issues raised for the first time on appeal. Somers v. McCoy, 777 So.2d 141, 143 (Ala.Civ.App.2000) (citing Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992); and S.W.M. v. D.W.M., 723 So.2d 1271 (Ala.Civ.App.1998)). Our review “is restricted to those arguments considered by the trial court.” Somers, 777 So.2d at 143 (citing Lyons v. Porter, 539 So.2d 298 (Ala.Civ.App.1988)). Because there is no indication in the record that Singer raised the issue of fraudulent concealment in its complaint or its amended complaint, in its response to CGLIC’s motion to dismiss, or in its postjudgment motions, this court will not consider the issue now. The trial court correctly dismissed Singer s negligence claim.

V. Attorney Fees

Singer argues that the trial court’s award of “reasonable attorney’s fees” and costs to CGLIC on the negligence claim was erroneous. Pursuant to the ALAA, § 12-19-272(c), Ala.Code 1975, the trial court found that Singer brought its negligence claim “without substantial justification,” and it awarded CGLIC $2,598.48 for attorney fees and costs.

The trial court specifically held that Singer had sufficient facts and evidence before it so that Singer knew, or should have known, that the negligence claim was barred by the statute of limitations, and that the claim was, therefore, asserted “without substantial justification” pursuant to the ALAA. According to the ALAA, a trial court’s award of attorney fees and costs under § 12-19-272(c) is within the trial court’s sound discretion. § 12-19-273, Ala.Code 1975; Williams v. Capps Trailer Sales, Inc., 607 So.2d 1272 (Ala.Civ.App.1992). However, when a trial court finds that an action, claim, or defense was asserted “without substantial justification” because it was groundless in law, as opposed to groundless in fact, the trial court’s determination will be reviewed by the appellate courts without a presumption of correctness. Shealy v. Golden, 959 So.2d 1098 (Ala.2006); Morrow v. Gibson, 827 So.2d 756 (Ala.2002). The trial court’s determination that Singer’s negligence claim was time-barred was a legal conclusion, and therefore the presumption of correctness will not apply to our review of the trial court’s determination. See Morrow, supra.

Even without affording the trial court’s determination a presumption of correctness, we hold that, pursuant to § 12-19-273, Ala.Code 1975, the trial court acted within its discretion in awarding the attorney fees and costs to CGLIC. A review of the record supports the trial court’s determination that Singer knew, or should have known, that the negligence claim was time-barred and that it was, therefore, brought “without substantial justification.”

A cause of action for negligence accrues as soon as the plaintiff is entitled to maintain the cause of action. Koch v. State Farm Fire & Cas. Co., 565 So.2d 226 (Ala.1990). Singer’s negligence cause of action accrued, if at all, on November 12, 2003, when CGLIC paid the commuted death benefit to the estate; however, Singer did not file its complaint until December 29, 2005. Therefore, Singer should have realized that its negligence action was time-barred. Singer did not plead or argue any exception to the statute of limitations. See Williams, supra.

VI. Conclusion

For the aforementioned reasons, the judgment of the Jefferson Circuit Court dismissing Singer’s claims against CGLIC and awarding attorney fees and costs to CGLIC pursuant to the ALAA is hereby affirmed.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.

      . Singer’s original complaint alleged only a claim of negligence against CGLIC, but it included other claims against other defendants. Singer subsequently amended its complaint to include claims of breach of contract and conversion against CGLIC. The trial court dismissed all of Singer's claims against CGLIC and made the order final pursuant to Rule 54(b), Ala. R. Civ. P. Therefore, this appeal deals only with Singer's claims against CGLIC.

      . The record includes a copy of a letter written by Rutherford on April 30, 1998, to North River and CGLIC, requesting that the named beneficiary under the annuity contract be changed from his wife, Sue Rutherford, then deceased, to his estate. The record does not reflect whether this letter was sent to or received by either CGLIC or North River. However, regardless of whether the letter was sent or received, or whether CGLIC or North River agreed to change the named beneficiary from Sue Rutherford to the Rutherford estate, the contract itself required that the lump-sum payment be made to the Rutherford estate.


author: PITTMAN, Judge.

text:
    Richard W. CASEY v. J. Vincent McCONNELL.
    2060324 and 2060518.
    Court of Civil Appeals of Alabama.
    June 1, 2007.

      Carson I. Nicholson, Fairhope; and Peter F. Burns of Burns, Cunningham & Mackey, P.C., Mobile, for appellant.
    Stephen P. Johnson and J. Byron Brac-kin III of Brackin, McGriff & Johnson, P.C., Foley, for appellee.
   PITTMAN, Judge.

Richard W. Casey appeals from a summary judgment entered by the Baldwin Circuit Court in favor of J. Vincent McConnell on Casey’s claims against McConnell (case no. 2060324) and from a subsequent postjudgment order reserving jurisdiction as to McConnell’s counterclaim seeking attorney fees and costs from Casey under the Alabama Litigation Accountability Act, Ala.Code 1975, § 12-19-270 et seq. (“the ALAA”), and directing the entry of a final judgment as to the adjudication of Casey’s claims (case no. 2060518). We dismiss one appeal (case no. 2060518); as to the other appeal (case no. 2060324), we affirm in part and reverse in part.

The facts of this case are virtually undisputed. Casey, a married man who was approximately 65 years old at the time of trial, had had a history of health problems including heart disease and hepatitis C. After suffering two heart attacks, Casey began an exercise regimen at Eternally Transformed Fitness Enterprises (“ETFE”), a fitness facility owned and operated by McConnell. Casey’s wife also began an exercise program at ETFE.

Mariette Pielage, a massage therapist, performed therapeutic massages for clients (including Casey) at ETFE. Pielage and McConnell developed an intimate relationship, and Pielage began residing with McConnell in his home. McConnell and Pielage were eventually engaged to be married, and Pielage became pregnant in December 2004. In May 2005, Pielage, who is a citizen of the Netherlands, returned there to renew her work visa, and McConnell provided her with a prepaid airline ticket for her return to the United States. Shortly thereafter, McConnell sent e-mail messages to Pielage expressing concerns regarding their impending marriage. In approximately late May or early June 2005, McConnell terminated their marriage engagement and canceled Piel-age’s prepaid airline ticket.

Pielage had developed a friendship with Casey and his wife through their interactions at ETFE, and after McConnell had canceled her airline ticket and terminated their relationship, Pielage contacted Casey’s wife seeking assistance. Pielage obtained another airline ticket and returned to the United States in July 2005. Upon her arrival in the United States, Pielage resided with Casey and his wife in their home for approximately a month before leasing and moving into a cottage. After Pielage had moved into the cottage, Casey continued to assist her financially so that she could afford her rental payments.

After McConnell terminated his engagement to Pielage, McConnell intimated, in conversations with ETFE patrons, that Pielage had had a sexual relationship with Casey. Julie Beazley, a patron of ETFE who had undergone physical training with McConnell, stated in an affidavit that McConnell had told her in June 2005 that “Pielage gave very long massages to another client of his [i.e., Casey] and that [McConnell] didn’t know what was going on up there.” Furthermore, Karen Wilson, another patron of ETFE who had received massage therapy from Pielage, stated in an affidavit that McConnell had had a private conversation with her in July 2005 at her place of business in which he had explained that he wanted her to know “his side of the story” regarding his relationship with Pielage and had stated that “Pielage used to give [Casey] two-hour massages and that for all he knew [Casey] could be the father of the child.”

Casey filed a complaint in July 2005 seeking an award of damages pursuant to § 6-5-181, Ala.Code 1975, alleging that McConnell had made false statements to third parties indicating that he had had sexual intercourse with Pielage and that he had fathered a child with Pielage and asserting those defamatory statements had placed him in a false light with the public. In September 2005, McConnell filed an answer denying those allegations and a counterclaim seeking an award of attorney fees and costs under the ALAA. In January 2006, Casey suffered another heart attack; he later amended his complaint to add claims of slander per quod and invasion of privacy and to allege that he had suffered his most recent heart attack as a result of McConnell’s statements.

McConnell filed a motion for a summary judgment; Casey filed a response to McConnell’s summary-judgment motion. On November 20, 2006, the trial court granted McConnell’s motion for a summary judgment as to Casey’s claims without expressly ruling on his counterclaim seeking attorney fees and costs under the ALAA or reserving jurisdiction to do so. Casey appealed from that judgment. On December 5, 2006, McConnell filed a motion to alter, amend, or vacate the judgment in which he requested that the trial court reserve jurisdiction as to McConnell’s ALAA counterclaim and direct the entry of a final judgment, pursuant to Rule 54(b), Ala. R. Civ. P., as to the summary judgment entered on Casey’s claims. On January 5, 2007, the trial court granted McConnell’s postjudgment motion and issued an order that directed the entry of a final judgment as to Casey’s claims and that reserved jurisdiction to rule upon McConnell’s ALAA claim at a later date. Casey again appealed. The Alabama Supreme Court transferred the appeals to this court pursuant to § 12-2-7(6), Ala. Code 1975. Because the first appeal was, as a matter of law, held in abeyance pending the trial court’s ruling on the post-judgment motion, see Rule 4(a)(5), Ala. R.App. P., the second appeal is duplicative and due to be dismissed. See Jones v. Lanthrip, 765 So.2d 682 (Ala.Civ.App.2000).

This court’s review of a summary judgment is well settled.

“In reviewing the disposition of a motion for a summary judgment, we utilize the same standard as the trial court in determining ‘whether the evidence before [it] made out a genuine issue of material fact’ and whether the movant was ‘entitled to a judgment as a matter of law.’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).”

Warren v. Birmingham Bd. of Educ., 739 So.2d 1125, 1132 (Ala.Civ.App.1999). “When a party opposing a properly supported motion for summary judgment offers no substantial evidence to contradict that presented by the movant, the trial court must consider that evidence uncon-troverted, with no genuine issue of material fact existing.” Shows v. Donnell Trucking Co., 631 So.2d 1010, 1013 (Ala.1994) (citing Voyager Guar. Ins. Co. v. Brown, 631 So.2d 848 (Ala.1993)). “Mere conclu-sory allegations or speculation that fact issues exist will not defeat a properly supported summary judgment motion, and bare argument or conjecture does not satisfy the nonmoving party’s burden to offer substantial evidence to defeat the motion.” Blackburn v. State Farm Auto. Ins. Co., 652 So.2d 1140, 1142 (Ala.1994).

On appeal, Casey contends that the trial court lost jurisdiction to hear McConnell’s counterclaim seeking an award of attorney fees and costs pursuant to the ALAA because, he argues, the trial court did not reserve jurisdiction to consider that claim when it entered the summary judgment.

The ALAA provides that the court must award attorney fees and costs as a part of its judgment on the merits of the case; it does not create a new or separate cause of action that can be brought after a case is litigated and given a final adjudication on the merits. Ala. Code 1975, § 12-19-270; Gonzalez, LLC v. DiVincenti, 844 So.2d 1196, 1201 (Ala.2002). The language of the ALAA allows the trial court to consider the outcome of proceedings when making its determination as to whether a party’s action was without substantial justification. Ala.Code 1975, § 12-19-273(7); Gonzalez, 844 So.2d at 1201; and Meek v. Diversified Prods. Corp., 575 So.2d 1100, 1103 (Ala.1991). Thus, the trial court can hold a separate hearing on an ALAA claim after the entry of a final judgment on the merits provided that the trial court specifically reserves jurisdiction to hear the ALAA claim. Gonzalez, 844 So.2d at 1201. Otherwise, a judgment that does not reserve jurisdiction to hear the ALAA claim at a later date puts an end to all controversies at issue, including the ALAA claim. Gonzalez, 844 So.2d at 1201-02; see also Baker v. Williams Bros., Inc., 601 So.2d 110, 112 (Ala.Civ.App.1992).

Although, it is well settled that a trial court has no jurisdiction to modify or amend a final order sua sponte more than 30 days after the judgment has been entered, except to correct clerical errors, see George v. Sims, 888 So.2d 1224, 1226-27 (Ala.2004), a trial court has jurisdiction to alter, amend, or vacate a judgment pursuant to a motion filed under Rule 59(e), Ala. R. Civ. P.

In this case, the trial court granted McConnell’s motion for a summary judgment on November 20, 2006, but did not expressly rule on McConnell’s counterclaim seeking attorney fees and costs under the ALAA. Although the silence of that judgment as to the ALAA counterclaim would, under Alabama precedents, be interpreted as an implicit denial of that counterclaim, McConnell timely filed a motion to alter, amend, or vacate the judgment pursuant to Rule 59(e), Ala. R. Civ. P., on December 5, 2006—well before 30 days had elapsed. The trial court granted McConnell’s postjudgment motion and issued an order that, in essence, vacated the judgment as to the ALAA claim and directed the entry of a final judgment as to Casey’s claims. Thus, we conclude that the trial court properly reserved jurisdiction to adjudicate McConnell’s ALAA claim.

Casey also argues that the trial court erred in entering a summary judgment in favor of McConnell as to all of Casey’s claims. We will consider separately the propriety of that judgment as to three particular claims of error that Casey has asserted on appeal.

Casey’s complaint alleged that McConnell’s statements constituted slander per se pursuant to § 6-5-181, Ala.Code 1975; that statute makes actionable statements that falsely impute to a woman “a want of chastity” without proof of special damages. McConnell’s summary-judgment motion asserted that § 6-5-181 had been ruled unconstitutional in Butler v. Town of Argo, 871 So.2d 1, 17 (Ala.2003). Casey’s response to McConnell’s summary-judgment motion conceded that a slander per se claim, as it pertains to a want of chastity, would be unconstitutional.

The law is well settled that “[a] party may not predicate an argument for reversal on ‘invited error,’ that is, ‘error into which he has led or lulled the trial court.’ ” Atkins v. Lee, 603 So.2d 937, 945 (Ala.1992) (quoting Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971)). The doctrine of invited error “provides that a party may not complain of error into which he has led the court.” Ex parte King, 643 So.2d 1364, 1366 (Ala.1993). In other words, “[a] party cannot win a reversal on an error that party has invited the trial court to commit.” Neal v. Neal, 856 So.2d 766, 784 (Ala.2002). See also Liberty Nat’l Life Ins. Co. v. Beasley, 466 So.2d 935, 937 (Ala.1985); and State Farm Mut. Auto. Ins. Co. v. Humphres, 293 Ala. 413, 418, 304 So.2d 573, 577 (1974).

Consequently, Casey’s concession in his response to McConnell’s summary-judgment motion that a slander per se claim under § 6-5-181 is unconstitutional bars his argument on appeal that the trial court erred in entering the summary judgment in favor of McConnell as to that claim. Because any error committed by the trial court in entering the summary judgment as to the slander per se claim was invited by Casey, we may not properly reverse the judgment as to that claim.

Casey further contends that the summary judgment should not have been entered in favor of McConnell as to Casey’s claim of slander per quod because, he argues, it was undisputed that he suffered special damages, i.e., a heart attack.

Casey did not specifically document or assert any monetary loss in his pleadings or in his answers to discovery. Casey admitted in his deposition that he could not produce any evidence, e.g., a medical bill or a document showing a monetary payment, as to which he was seeking compensation. Furthermore, Casey did not produce any evidence, other than his own testimony, that linked the occurrence of his heart attack to McConnell’s statements.

To establish a prima facie case of defamation, of which slander is a branch, “ ‘the plaintiff must show that the defendant was at least negligent ... in publishing a false and defamatory statement to another concerning the plaintiff.’ ” Warren, 739 So.2d at 1132 (quoting Nelson v. Lapeyrouse Grain Corp., 534 So.2d 1085, 1091 (Ala.1988)). Even when the statement is not actionable per se, as Casey conceded, a plaintiff may maintain “ ‘ “an action for slander [per quod] founded on oral malicious defamation subjecting the plaintiff to disgrace, ridicule, odium, or contempt” ’ ” if that plaintiff alleges and proves “ ‘ “special damages.” ’ ” Butler v. Town of Argo, 871 So.2d at 17 (quoting Ceravolo v. Brown, 364 So.2d 1155, 1157 (Ala.1978), quoting in turn Marion v. Davis, 217 Ala. 16, 18, 114 So. 357, 359 (1927)). “ ‘Special damages are the material harms that are the intended result or natural consequence of the slanderous statement, and the general rule is that they are limited to “material loss capable of being measured in money.” ’ ” Butler, 871 So.2d at 18 (quoting Shook v. St Bede Sch., 74 F.Supp.2d 1172, 1180 (M.D.Ala.1999))(internal citations omitted).

Accordingly, Casey had to produce substantial evidence indicating that he had suffered a material harm, capable of being measured in money damages, as a consequence of McConnell’s statements. See Butler, supra. Casey did not meet that burden. Casey did not produce any evidence showing that he had sustained a monetary loss as a result of McConnell’s statements, and Casey did not adduce substantial evidence indicating that his heart attack was caused by McConnell’s statements. Casey’s conjecture concerning the origins of his third heart attack could not alone defeat McConnell’s motion for a summary judgment. See Blackburn v. State Farm Auto. Ins. Co., 652 So.2d at 1142. Thus, because Casey failed to produce substantial evidence of special damages — a material element of his slander per quod claim — the trial court properly granted McConnell’s summary-judgment motion as to that claim.

Casey additionally argues that the trial court erred in entering a summary judgment in favor of McConnell as to Casey’s claim of invasion of privacy because, he says, McConnell did not meet his burden to establish that he was entitled to a judgment as a matter of law.

“Alabama has long recognized that a wrongful intrusion into one’s private activities constitutes the tort of invasion of privacy.” Butler, 871 So.2d at 12. It is generally accepted that invasion of privacy can be independently established by four limited and distinct wrongs, including: “ ‘(1) intruding into the plaintiffs physical solitude or seclusion; (2) giving publicity to private information about the plaintiff that violates ordinary decency; (3) putting the plaintiff in a false, but not necessarily defamatory, position in the public eye; or (4) appropriating some element of the plaintiffs personality for a commercial use.’ ” Ex parte Birmingham News, Inc., 778 So.2d 814, 818 (Ala.2000) (quoting Johnston v. Fuller, 706 So.2d 700, 701 (Ala.1997)).

In Carter v. Innisfree Hotel, Inc., 661 So.2d 1174 (Ala.1995), the Alabama Supreme Court explained how an individual may commit the tort of invasion of privacy by intruding into another’s physical solitude or seclusion — the first branch of invasion of privacy enumerated in Butler:

“One may invade another’s privacy through either an intrusion upon a physical space, such as a trespass, or by an invasion of one’s ‘emotional sanctum’; the law prohibits a wrongful intrusion into either of these areas of privacy. Phillips [v. Smalley Maint. Servs., Inc., 435 So.2d 705, 708 (Ala.1983) ]. In defining the invasion of privacy tort, the Phillips Court quoted comment b to Restatement (Second) of Torts § 652B (1977):
“ ‘The invasion may be physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiffs room in a hotel or insists over the plaintiffs objection in entering his home. It may also be use of the defendant’s senses, with or without mechanical aids, to oversee or overhear the plaintiffs private affairs, as by looking into his upstairs window with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns....’”

661 So.2d at 1178 (emphasis added). Moreover, in Butler, the Alabama Supreme Court noted what must be established to prove a “false light” claim — the third branch of invasion of privacy enumerated in Butler:

“Applying Restatement (Second) of Torts § 652E (1977) and the following comments, this Court has adopted the following definition for ‘false light’ invasion of privacy:
“ ‘ “One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
“ ‘ “(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
“ ‘ “(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.” ’
“Schifano v. Greene County Greyhound Park, Inc., 624 So.2d 178, 180 (Ala.1993) (emphasis omitted) (quoting Restatement (Second) of Torts § 652E (1977)). A false-light claim does not require that the information made public be private; instead, the information made public must be false. See Restatement (Second) of Torts § 652E cmt. a. (1977).
“Additionally, it is integral to a false-light claim that the untrue information be publicly communicated. Comment a. to § 652E states, ‘The rule stated here is, however, limited to the situation in which the plaintiff is given publicity. On what constitutes publicity and the publicity of application to a simple disclosure, see § 652D, Comment a., which is applicable to the rule stated here.’ ”

871 So.2d at 12-13.

McConnell’s sole argument in his submissions to the trial court seeking a summary judgment as to Casey’s claim of invasion of privacy was based on a wholly different branch of that tort than that asserted by Casey in his amended complaint. Casey alleged in his amended complaint that “[McConnell had] intentionally and maliciously intruded into [Casey’s] emotional sanctum by spreading false gossip and rumors regarding Casey’s relationship with [Pielage]” (emphasis added). However, McConnell’s sole argument seeking summary judgment as to Casey’s claim of invasion of privacy asserted that Casey had not established that McConnell “placed [Casey] in a false light in the public eye” (emphasis added).

The evidence necessary to prove that McConnell committed the tort of invasion of privacy by intrusion upon seclusion is different from the evidence needed to establish a “false-light” claim. By addressing a branch of invasion of privacy differing from that relied on by Casey in his amended complaint, McConnell did not make a prima facie showing that there was no genuine issue of material fact and that he was entitled to a judgment as a matter of law on that claim so as to shift the burden of production to Casey.

McConnell asserts for the first time on appeal that Casey did not adduce substantial evidence of the elements of an intrusion-upon-seclusion claim. In most instances, this court will affirm the trial court on any valid ground regardless of whether the ground was considered or rejected by the trial court. However, we may not do so when due-process constraints require some notice at the trial level of the basis that would otherwise support the affirmance, “such as ... where a summary-judgment movant has not asserted before the trial court a failure of the nonmovant’s evidence on an element of a claim ... and therefore has not shifted the burden of producing substantial evidence in support of that element.” Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003).

Therefore, to the extent that the trial court entered its summary judgment in favor of McConnell as to Casey’s invasion-of-privacy claim based upon a claimed intrusion upon seclusion, that judgment is reversed. In all other respects, the judgment of the trial court is affirmed. The cause is remanded for further proceedings consistent with this opinion.

2060324 — AFFIRMED IN PART; REVERSED JN PART; AND REMANDED.

2060518 — APPEAL DISMISSED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

      . Notwithstanding Casey’s argument to the contrary, McConnell did, in fact, dispute that Casey suffered special damages. McConnell slated in his summary-judgment motion that Casey had "failed to quantify the damages frona the alleged acts in any way and [had] failed to specifically state money damages in any pleadings or discovery in this action.” See Butler v. Town of Argo, 871 So.2d at 17.