author: PER CURIAM. CRAWLEY, Presiding Judge,

text:
    Charles Scott KELLEY v. Sabrina Renee Patton KELLEY Sabrina Renee Patton Kelley v. Charles Scott Kelley Kelley Foods of Alabama, Inc., Charles E. Kelley, Dwight W. Kelley, Jerry W. Kelley, and Edwin B. Kelley, attempted intervenors v. In re Marriage of Charles Scott Kelley and Sabrina Renee Patton Kelley.
    2040581, 2040586.
    Court of Civil Appeals of Alabama.
    Sept. 22, 2006.
    Rehearing Denied Dec. 1, 2006.
    M. Chad Tindol of Marsh, Cotter & Tindol, LLP, Enterprise, for appellants Kelley Foods and other Kelley Shareholders.

      Sharon G. Yates, Montgomery; Terry L. Butts, Elba; and L. Merrill Shirley, Elba, for Charles Scott Kelley.
    John A. Henig, Jr., and J. David Martin of Copeland, Franco, Screws & Gill, P.A., Montgomery; and Lee A. Mclver, Montgomery, for appellee/cross-appellant Sabrina Renee Patton Kelley.
   PER CURIAM.

In case number 2040581, Charles Scott Kelley (“the husband”) appeals a divorce judgment insofar as it required him either to transfer 300 shares of stock in Kelley Foods of Alabama, Inc. (“Kelley Foods”), to Sabrina Renee Patton Kelley (“the wife”) or to pay $350,000 to the wife within 60 days. Also in case number 2040581, the wife cross-appeals the divorce judgment insofar as it awarded the husband his entire retirement account instead of awarding her one-half of the account. We reverse the divorce judgment insofar as it divided the parties’ marital property and made an award of periodic alimony, and we remand the case to the trial court for the trial court to address the issues of the division of the parties’ marital property and the award of periodic alimony in light of this opinion.

In case number 2040586, Charles E. Kelley, Dwight W. Kelley, Jerry W. Kelley, and Edwin B. Kelley (collectively “the other shareholders”) and Kelley Foods appeal the denial of their motion for leave to intervene in the husband’s and the wife’s divorce action. We affirm the denial of that motion.

On June 16, 2003, the husband sued the wife for a divorce on the grounds of incompatibility and irretrievable breakdown of the marriage. The wife answered the husband’s complaint and counterclaimed for a divorce on the ground that the husband had allegedly engaged in domestic violence.

The husband owned 789 shares of stock in Kelley Foods, a closely held corporation. The husband’s 789 shares represented approximately 15% of the outstanding shares of Kelley Foods. The other shareholders owned all of the other outstanding shares of Kelley Foods. The husband used marital assets to buy the 789 shares, and he conceded that the 789 shares were marital assets.

In 2001, the husband, the wife, the other shareholders, and the spouses of the other shareholders signed a buy-sell agreement that governed the transfer of shares of stock in Kelley Foods. In pertinent part, the buy-sell agreement stated:

“RECITALS:
“C. Kelley Foods and [the husband and the other shareholders] wish to restrict ownership of the [stock in Kelley Foods] to [the husband and the other shareholders] and to persons with whom [the husband and the other shareholders] may comfortably and easily deal; and
“D. [The husband and the other shareholders] believe that they shall be able to deal easily and comfortably with each other and that it is in their best interests and in Kelley Foods’ best interests that all corporate activities be controlled by persons who deal comfortably with each other; and
“E. [The husband, the other shareholders,] and Kelley Foods, to accomplish these objectives, wish to arrange for certain restrictions on the Transfer (defined below) of the [husband’s and the other shareholders’] shares of the Stock to persons other than [the husband and the other shareholders].
“AGREEMENTS:
“SECTION 1
“Stock Transfers
“1.4 Involuntary Lifetime Transfers. Purchase Options. Any Shareholder who has any information that would reasonably lead him, her, or it to expect that an Involuntary Lifetime Transfer (defined below) is foreseeable must promptly send a notice to Kelley Foods and to the other Shareholders and be deemed to have offered to sell to Kelley Foods and to the other Shareholders his, her, or its shares of the Stock otherwise to be Transferred, at the Agreement Price and on the Agreement Terms. Such notice shall include a statement of the type of proposed Transfer, the name, address (both home and office), and business or occupation of the person to whom such shares of the Stock would be Transferred, and any other facts that are or would reasonably be deemed material to the proposed Transfer.
“1.4.1. Kelley Foods shall have sixty (60) days from such notice in which to elect to buy all, or any, of the Offered Stock.
“1.4.2. If Kelley Foods shall not elect to buy all of the Offered Stock within the option period, the other Shareholders shall have sixty (60) days from the expiration of the option period in which to elect to buy. The other Shareholders may elect to buy all or any of such shares of the Offered Stock in proportion to their respective ownership of the Stock (excluding the Offered Stock) or in such other proportion as they shall agree upon.
“1.4.3. If Kelley Foods and the other Shareholders do not, in the aggregate, agree to buy all of the Offered Stock within the option period, such Involuntary Lifetime Transfer may be completed with respect to the unpurchased shares....
“SECTION 2
“Agreement Price
“The Agreement Price shall be the value of the Offered Stock as determined by formula provided in Section 2.1 on the last day of the fiscal year most recently ended prior to the date of any deemed offer. In the case of a transfer constituting a gift, the Agreement Price shall be the price set forth in 2.1.
“SECTION 9
“Definitions
“ ‘Agreement Price.’ The ‘Agreement Price’ is the price at which, pursuant to the terms of this Agreement, a Shareholder must offer to sell all or any of his or her shares of the Stock.
“9.17. ‘Transfer,’ Etc. A ‘Transfer’ is any sale, pledge, [e]ncumbrance, gift, bequest, or other transfer of any shares of the Stock, whether or not for value and whether or not made to another party to this Agreement.
“9.17.1 An ‘Involuntary Lifetime Transfer’ is any Transfer made on account of a court order or otherwise by operation of law, including any Transfer incident to any divorce or marital property settlement or any Transfer pursuant to applicable community property, quasi-eommunity property or similar state law.”

(Emphasis added.)

Following a trial at which it heard evidence ore tenus, the trial court entered a divorce judgment on January 14, 2005. The divorce judgment did not state any express fact findings. In pertinent part, the divorce judgment: (1) ordered the parties to sell the marital home, which had an equity of approximately $95,000, and to divide the net proceeds from the sale equally; (2) ordered the husband to pay the wife periodic alimony in the amount of $500 per month until the marital home was sold and, upon the sale of the home, to pay her periodic alimony in the amount of $1,250 per month; (3) awarded the wife 300 shares of stock in Kelley Foods and awarded the husband the remaining 489 shares, but gave the husband the option of paying the wife $350,000 (the “agreement price” of 300 shares under the buy-sell agreement) in lieu of the 300 shares; (4) awarded the wife $29,700 of the parties’ cash and awarded the husband $24,300 of the parties’ cash; (5) awarded the wife her retirement account, which had a value of $12,379, and awarded the husband his retirement account, which had a value of $185,777.64; (6) awarded the wife other personal property with a value of $50,625 and awarded the husband other personal property with a value of $27,300; and (7) ordered the husband to pay a $145,000 debt he had incurred to purchase the Kelley Foods stock.

Following the entry of the divorce judgment, both the husband and the wife filed postjudgment motions. On February 14, 2005, Kelley Foods and the other shareholders moved the trial court for leave to intervene. Immediately after entering the divorce judgment, the trial judge who had heard the evidence at the January 13, 2005, trial left office. After his successor in office recused himself, another trial judge denied all pending motions. Thereafter, the husband, the wife, Kelley Foods, and the other shareholders all timely appealed to this court.

On appeal, the husband first argues that the trial court erred by making an in-kind award to the wife of shares of stock in Kelley Foods because: (1) Kelley Foods is a closely held corporation; and (2) the husband and the other shareholders had sought in the buy-sell agreement to limit the transfer of stock in Kelley Foods to the husband and the other shareholders. Second, he argues that the trial court erred by ordering that, if the husband elected to pay the wife cash in lieu of the 300 shares of stock in Kelley Foods that the trial court had awarded her, he would have to pay her the agreement price of the 300 shares because, he says, his two expert witnesses gave undisputed testimony indicating that the agreement price did not represent the actual value of the 300 shares. Third, the husband argues that the trial court’s division of marital property was inequitable because, he says, it will result in his having only $652.11 per month to live on.

With respect to the husband’s first argument, we conclude that the trial court did not err in making an in-kind award of the 300 shares to the wife. The buy-sell agreement contemplates that in-kind awards of stock in Kelley Foods may be made, and it provides that, if an in-kind award of shares owned by the husband is made to the wife in a divorce judgment, Kelley Foods and the other shareholders shall have a right to purchase the shares before they are transferred to the wife. The wife would then receive the purchase price paid by Kelley Foods or the other shareholders in lieu of the in-kind award of the stock.

Although we conclude that the trial court did not err in making an in-kind award of stock to the wife, we conclude that the trial court did err in failing to order that Kelley Foods and the other shareholders be accorded their right to purchase the shares awarded to the wife as provided in the buy-sell agreement. Furthermore, the trial court’s error in failing to order that Kelley Foods and the other shareholders be accorded their right to purchase the shares awarded to the wife as provided in the buy-sell agreement requires that we reverse the trial court’s division of the parties’ marital property in its entirety. Moreover, because the award of periodic alimony is interrelated with the division of marital property, we also reverse the trial court’s award of periodic alimony, see, e.g., Chambers v. Chambers, 823 So.2d 709, 716.(Ala.Civ.App.2001), and remand the case so that the trial court may consider the interrelated issues of the division of the parties’ marital property and the award of periodic alimony together in light of this opinion. Because we are remanding this case to the trial court to reconsider the division of the parties’ martial property and the award of periodic alimony, we pretermit discussion of the husband’s second and third arguments on appeal as well as the wife’s argument on cross-appeal regarding the division of the husband’s retirement account.

In case number 2040586, Kelley Foods and the other shareholders argue that the trial court erred in denying their motion for leave to intervene because, they say, the trial court’s awarding the wife 300 shares of stock in Kelley Foods impaired their rights under the buy-sell agreement. Rule 24(a)(2), Ala. R. Civ. P., states:

“(a) Intervention of Right. Upon timely application, anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

(Emphasis added.) Both in the trial court and on appeal, the husband, who is both a shareholder of Kelley Foods and a party to the buy-sell agreement, opposed the trial court’s making an in-kind award of stock in Kelley Foods to the wife. Consequently, the interests of Kelley Foods and the other shareholders were adequately represented by the husband. Therefore, the trial court did not err in denying the motion for leave to intervene filed by Kelley Foods and the other shareholders.

In case number 2040581, we reverse the divorce judgment insofar as it divided the parties’ marital property and awarded the wife periodic alimony, and we remand the case so that the trial court may consider the interrelated issues of the division of the parties’ marital property and the award of periodic alimony together in light of this opinion. In case number 2040586, we affirm the denial of the motion for leave to intervene filed by Kelley Foods and the other shareholders.

2040581 — REVERSED AND REMANDED WITH INSTRUCTIONS.

2040586 — AFFIRMED.

THOMPSON and BRYAN, JJ., concur.

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

CRAWLEY, P.J., concurs in part and dissents in part, with writing.

PITTMAN, J., recuses himself.

CRAWLEY, Presiding Judge,

concurring in part and dissenting in part.

I concur with the main opinion insofar as it affirms the trial court’s denial of Kelley Foods and the other shareholder’s motion to intervene in case number 2040586.

I dissent from the main opinion insofar as it reverses the trial court’s judgment as to the division of the parties’ marital property and the award of periodic alimony and remands the case to the trial court on the basis that the trial court failed to provide that the award to the wife of the 300 shares of stock in Kelley Foods was subject to the provisions of the buy-sell agreement. Simply put, I think a reversal is unnecessary. The trial court’s judgment does not mandate that the husband give the wife shares of stock in Kelley Foods; in fact, the judgment gives the husband the option of paying money to the wife in lieu of giving her the stocks. Furthermore, the husband is bound by his own agreement to offer to sell the stock to Kelley Foods or the other shareholders. The trial court’s judgment does not change that fact. Finally, it appears that Kelley Foods and the other shareholders have remedies available to them in the event the husband elects to not first offer to sell the stock in accordance with the provisions of the buy-sell agreement. See Boyle v. Boyle, 194 W.Va. 124, 459 S.E.2d 401 (1995)(stating that one reason supporting the denial of a motion to intervene in a divorce case by the holder of an option to buy stock was the existence of other adequate methods to protect his interests, such as several other pending lawsuits).

      . Although the trial court’s in-kind award of stock in Kelley Foods to the wife was not error, we note that the wife would probably be better served by an award of other marital property or periodic alimony in lieu of the stock because of the disadvantages that would result from being an unwelcome minority stockholder in a closely-held corporation.


source: Caselaw Access Project

author: CRAWLEY, Presiding Judge.

license: Public Domain

text:
    James F. KEETON v. Susan G. KEETON.
    2050126.
    Court of Civil Appeals of Alabama.
    Sept. 29, 2006.
    Certiorari Denied Dec. 8, 2006 Alabama Supreme Court 1060089.

      Patricia Clem and Jack Shores of The Shores Law Firm, Birmingham, for appellant.
    Charles R. Stephens, Jasper, for appel-lee.
   CRAWLEY, Presiding Judge.

James F. Keeton (“the husband”) appeals from a divorce judgment divorcing him from Susan G. Keeton (“the wife”). We dismiss the appeal as being untimely filed.

Although neither party addresses this court’s jurisdiction over this appeal, we may take notice of a lack of jurisdiction ex mero motu. See Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568-69 (Ala.Civ.App.2003). The trial court entered a judgment divorcing the parties on April 19, 2005. The husband filed a timely post-judgment motion on May 17, 2005. After an August 2, 2005, hearing on that motion was continued, the parties purported to extend the 90-day period for the trial court to rule on the husband’s post-judgment motion pursuant to Rule 59.1, Ala. R. Civ. P., by each filing a separate consent to that effect; one party filed a consent on August 17, 2005, and the other party filed one on August 29, 2005. The 90-day period for ruling on the husband’s postjudgment motion expired on August 15, 2005. Because no consent to extend the 90-day period for ruling on the husband’s postjudgment motion appears of record before the expiration of the 90-day period, the parties’ purported consent to extend the time for ruling failed to extend the 90-day period, and, therefore, the husband’s postjudgment motion was denied by operation of law on August 15, 2005. Byrd v. Petelinski 757 So.2d 400 (Ala.2000); Scheilz v. Scheilz, 579 So.2d 674, 675 (Ala.Civ.App.1991). An appeal must be filed within 42 days of the denial of a post-judgment motion. Newman v. Newman, 773 So.2d 481, 483 (Ala.Civ.App.1999). The husband did not file his notice of appeal until October 3, 2005, which was more than 42 days after his postjudgment motion was denied by operation of law. The husband’s notice of appeal is untimely, and, therefore, we must dismiss the appeal.

APPEAL DISMISSED.

THOMPSON, PITTMAN, MURDOCK, and BRYAN, JJ., concur.


author: CRAWLEY, Presiding Judge. THOMPSON,

text:
    PATTANS VENTURES, INC., d/b/a Pattan Title & Pawn v. Darryl WILLIAMS.
    2040648.
    Court of Civil Appeals of Alabama.
    Dec. 1, 2006.

      Jeffrey L. Ingram of Galese & Ingram, P.C., Birmingham, for appellant.

      Bill Thomason and Clay J. Thomason of Thomason, Maples & Allsup, LLC, Bessemer, for appellee.
   On Application for Rehearing

CRAWLEY, Presiding Judge.

This court’s opinion issued on June 2, 2006, is withdrawn, and the following is substituted therefor.

Darryl Williams (“the pledgor”) sued Pattans Ventures, Inc., doing business as Pattan Title & Pawn (“the pawnshop”), Nathaniel Ellis, Alabama Auto Adjusters, and several fictitiously named parties, alleging that his vehicle was wrongfully repossessed and sold and claiming as grounds for relief breach of contract, conversion, and unjust enrichment. The trial court entered a judgment; however, based upon a postjudgment motion filed by the pawnshop, the trial court amended its judgment. The trial court’s amended judgment determined that the pledgor’s claims of conversion of his vehicle and breach of contract against the pawnshop were meritorious, entered a judgment against the pawnshop on the conversion and breach-of-contract claims, and assessed damages in the amount of $39,000. The trial court ruled in favor of Nathaniel Ellis on the pledgor’s claims against him. The pledgor’s claims against Alabama Auto Adjusters were dismissed without prejudice. The pledgor never substituted additional defendants for the fictitiously named parties in the complaint. Thus, the trial court’s judgment is a final judgment. The pawnshop has timely appealed.

I. Factual Background

The trial court’s judgment determined that the pledgor had purchased the vehicle in question, a 2001 BMW sport-utility vehicle, in April 2001, for the amount of $47,981.98. The Alabama Department of Revenue (“the department”) issued the pledgor the certificate of title to the vehicle in May 2001.

On December 13, 2001, the pledgor pawned the title to the vehicle to the pawnshop for the amount of $700. At that time, the pledgor also executed a pawn ticket for that amount; however, as is customary for this type of transaction, the pledgor kept physical possession of the vehicle. In order to redeem the title to the vehicle, the pledgor was required to pay $875 within 30 days of the date of the issuance of the pawn ticket. The pawn ticket, signed by a representative of the pawnshop and by the pledgor, provides the following relevant contract terms:

“This pawn is for one month. The pawnshop charge is deemed earned, due and owing as of the date of the pawn transaction and a like sum shall be deemed earned due and owing on the same day of the succeeding month. ‘Any personal property pledged to a pawnbroker within this state is subject to sale or disposal when there has been no payment made on the account for a period of 30 days post maturity date of the original contract, and no further notice is necessary.’ Pledgor shall present this ticket when redeeming the pledged goods. Pawnbroker agrees to return the pledged goods to the pledgor upon payment of the amount loaned plus pawnshop charge and any other lawful charges.
“Any person identified as pledgor or as authorized representative of the pledgor and presenting a pawn ticket to the pawnbroker shall be entitled to redeem or repurchase goods described on the ticket. In the event pledged goods are lost or damaged while in the possession of the pawnbroker, it shall be the responsibility of the pawnbroker to replace the lost or damaged goods with like kinds of merchandise and proof of replacement shall be a defense to any prosecution. For the purpose of the provision, ‘lost’ includes pledged goods that have been destroyed or have disappeared due to willful neglect that results in the pledged goods being unavailable for return to the pledgor.”

(Emphasis added.)

Also on December 13, 2001, the pledgor executed a document styled “Bill of Sale of Motor Vehicle Pawned,” which purported to evidence the sale of the vehicle to the pawnshop, with the sale to become effective if the pledgor failed to pay the $875 within 30 days.

Additionally, the pledgor executed a power of attorney, appointing Gabe Ellis, a representative of the pawnshop, as his attorney in fact for the purpose of applying for a new certificate of title and, among other things, placing a lien on the vehicle. The signature on the power-of-attorney document was not that of Gabe Ellis, however, but of James Bearden, an agent of the pawnshop. Other documents obtained from the department indicate that another power-of-attorney document was completed, apparently by the pawnshop, wherein Bearden was purportedly appointed to be the pledgor’s attorney in fact. However, the trial court determined that the pled-gor’s purported signature on that document was an obvious forgery.

A January 25, 2002, application for a certificate of title to the vehicle filed with the department, which identified the pawnshop as a lienholder on the vehicle, was signed by Bearden, pursuant to the forged power-of-attorney document. In February 2002, the department issued a new certificate of title to the vehicle, indicating that the pawnshop was the first lienholder. That lien was released by Nathaniel Ellis, a representative of the pawnshop, on November 15, 2002, when the pawnshop took possession of the vehicle. The title document indicates that the vehicle was sold by the pawnshop on November 15, 2002, and that the title was subsequently reassigned in turn to three separate automobile dealers.

Nathaniel Ellis testified that the keys to the vehicle are with the vehicle and that he did not know the whereabouts of the vehicle. Nathaniel Ellis also testified that, at the time the pledgor pawned the title to the vehicle, he explained to the pledgor that the pawn ticket had to be redeemed within 30 days and that, if it was not redeemed within 30 days, the pledgor would have an additional 30 days to redeem it, but that, on the 61st day, title would pass to the pawnshop. Nathaniel Ellis claimed that the pledgor did not make or attempt to make any payments to the pawnshop.

The pledgor testified that he attempted to pay his pawn ticket 4 days before the 30-day pawn-transaction period expired. The pledgor stated that, despite the fact that he had enough cash to redeem his certificate of title, Nathaniel Ellis told him that he could not locate the certificate of title. According to the pledgor, Nathaniel Ellis added that, if the pledgor would pay the interest on the pawn ticket, the pawnshop would extend the time to pay the principal amount by another 30 days. The pledgor testified that he declined to pay only the interest and indicated that he was ready, willing, and able to pay the full amount of the pawn ticket upon Nathaniel Ellis’s returning the certificate of title to him.

Two weeks later, the pledgor testified, he again attempted to tender full payment of the pawn ticket. The pledgor stated that Nathaniel Ellis told him again that he could not locate the certificate of title but that the pledgor could pay the interest on the pawn ticket to extend the transaction for 30 days. The pledgor stated that he again refused the alternative of paying only the interest and demanded return of the certificate of title in return for his full payment. The pledgor testified that he periodically spoke with Nathaniel Ellis by telephone between January 13, 2002, and up to February 13, 2002, but that the situation remained the same — Nathaniel Ellis claimed that he could not locate the certificate of title but offered to extend the transaction for 30 days if the pledgor would pay the interest due. The pledgor testified that he declined the offer each time. At the time the pawnshop took possession of the vehicle, about eight months after the pawn ticket had matured, the vehicle was valued at $39,000.

The trial court determined that the pawnshop had violated the Alabama Pawnshop Act, § 5-19A-1 et seq., Ala.Code 1975 (“the Act”), by selling the vehicle without waiting 30 days from the date it took physical possession of the vehicle. Specifically, the trial court stated:

“In construing the statute in order to determine the intent of the Legislature in the application of the provisions with regard to the pawn of automobile titles, the Court has considered Ala.Code § 5-19A-10(b)(1975), which addresses pled-gor rights to redeem with regard to pledged tangible property, in para mate-ria with Ala.Code § 5-19A-5(c) (1975), which addresses a pawnshop owners obligation to hold all purchased goods, including automobiles, for 21 days prior to disposing of them by sale or otherwise, as indicative of a legislative intent that a pledgor, having surrendered an item of personal property to a pawnbroker, should have a period of time after he has lost possession to redeem the property, thereby regaining possession of the property and satisfying his obligation to the pawnbroker.
“[The pawnshop], in disposing of [the pledgor’s] vehicle by sale on the same date upon which [the pawnshop] came into possession of the tangible property, which was the subject of the pawn transaction is violative of the letter, if not the spirit of Ala.Code § 5-19A-10(b) (1975). The Court therefore finds that the resale of [the pledgor’s] vehicle prior to the expiration of 30 days from the date that the said vehicle came into the possession of [the pawnshop] following the maturity date of the pawn transaction was in violation of the Alabama Pawnshop Act, was an interference with [the pledgor’s] right to redeem and therefore supports [the pledgor’s] claim for conversion against [the pawnshop] and breach of the pawn contract between [the pledgor] and [the pawnshop].”

The trial court concluded by stating that it was “reasonably satisfied of the truthfulness of [the pledgor’s] claim for conversion of his motor vehicle and breach of contract,” and it entered a “judgment for [the pledgor] and against [the pawnshop] for the conversion of [the pledgor’s] said automobile and assessed] [the pledgor’s] damages at the value of the said vehicle at the time of its taking, $39,000.00.”

II. Discussion

The pawnshop argues in its brief to this court that the trial court erred as a matter of law in determining that the legislature intended § 5-19A-5(c), Ala.Code 1975, when read in conjunction with § 5-19A-10(b), Ala.Code 1975, to require a pawnshop to hold a pledgor’s vehicle for 30 days after it takes possession of the vehicle, even if more than 30 days have passed following the maturation of the pawn ticket. In short, the pawnshop asserts that it already owned the vehicle in this case by operation of law when it took possession of the vehicle and, thus, that it could not be liable for conversion or breach of contract.

The pledgor argues that the 30-day period in which he could redeem his vehicle began to run from the time the pawnshop took possession of the vehicle, not — as the pawnshop claims — from the time the pawn ticket matured.

Neither the trial court’s judgment nor the parties on appeal address in significant detail what consequences could flow from the pawnshop’s not providing the pledgor with the certificate of title when he offered to pay the required $875 before the end of the initial 30-day period during which he could redeem the vehicle pursuant to the terms of the pawn ticket. Ultimately we must remand this case for the trial court to reexamine the evidence and make further factual findings — findings that were previously unnecessary for the trial court to make under its construction of the Act.

In this case the trial court made factual findings based upon the oral testimony at trial. However, the trial court did not specifically make a factual finding as to whether the pledgor actually made an offer of payment to the pawnshop before the expiration of the time he had to redeem his pawn ticket. Generally, when a trial court receives evidence ore tenus and makes no specific findings of fact, we must assume that the trial judge made those findings necessary to support the judgment. Diggs v. Diggs, 910 So.2d 1274, 1275 (Ala.Civ.App.2005). Furthermore, we must view the evidence in a light most favorable to the prevailing party. Id. As noted above, however, in this case the result the trial court reached did not require a finding that the pledgor had made an offer to redeem his pawn ticket. Rather the trial court based its judgment upon a construction of several sections of the Act and focused upon what consequences result under those sections from the pawnshop’s taking possession of the pledgor’s vehicle and then reselling it the same day.

The portions of the Act relied upon by the trial court in determining that the pawnshop did not have a right to sell the pledgor’s vehicle are § 5-19A-5(c) and § 5-19A-10(b). Section 5-19A-5(c), Ala. Code 1975, provides:

“All goods purchased by the pawnbroker except for automobiles, trucks, and similar vehicles shall be maintained on the premises by the pawnbroker for at least fifteen business days before the goods may be offered for resale. Automobiles, trucks, and similar vehicles shall be maintained on the premises for 21 calendar days.”

Section 5-19A-10(b), Ala.Code 1975, provides:

“Pledged goods not redeemed on or before the maturity date if fixed and set out in the pawn ticket issued in connection with any transaction shall be held by the pawnbroker for 30 days following that date and may be redeemed or repurchased by the pledgor or seller within the period by the payment of the originally agreed redemption price, and by the payment of an additional pawnshop charge equal to the original pawnshop charge.”

In short, the trial court construed those sections of the Act together to conclude that the pledgor had a right to recover the value of the vehicle from the pawnshop because the pawnshop had violated the Act by selling the vehicle on the same day it took possession of the vehicle. Contrary to the trial court, we agree with the pawnshop concerning one argument: that the 30-day period in which the pledgor could redeem his vehicle began not on the day the pawnshop took possession of the vehicle, but on the day the pawn ticket matured.

Importantly, the mere violation of a statute by a party does not per se mean that a legal remedy is available to another party who is purportedly injured by that violation. See, e.g., Fox v. Bartholf, 374 So.2d 294, 295-96 (Ala.1979)(stating that the elements of negligence per se based upon the violation of a statute requires (1) a determination that the statute was enacted to protect a class of persons that includes the litigant seeking to assert the applicability of the statute, (2) that the injury was of the type contemplated by the statute, (3) that the party charged with negligent conduct must have violated the statute, and (4) that the trier of fact must determine that the statutory violation proximately caused the injury).

As our supreme court has previously stated:

“The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute. Gholston v. State, 620 So.2d 719 (Ala.1993). Absent a clearly expressed legislative intent to the contrary, the language of the statute is conclusive. Words must be given their natural, ordinary, commonly understood meaning, and where plain language is used, the court is bound to interpret that language to mean exactly what it says. IMED Corp. v. Systems Engineering Associates Corp., 602 So.2d 344 (Ala.1992).”

Ex parte State Dep’t of Revenue, 683 So.2d 980, 983 (Ala.1996). However, when the meaning of a statute is not clear on its face, the court must determine the meaning of the statute by finding the intent of the legislature. Tate v. Teague, 431 So.2d 1222, 1225 (Ala.1983). “Under the rules of statutory construction, we must consider the statute as a whole and must construe the statute reasonably so as to harmonize the provisions of the statute.” McRae v. Security Pac. Hous. Servs., Inc., 628 So.2d 429, 432 (Ala.1993). “The reason and necessity for a statute are relevant to its interpretation.” Id. at 431 (citing Ex parte Birmingham Bd. of Educ., 601 So.2d 93 (Ala.1992)).

In this case the violation of § 5-19A-5(c), Ala.Code 1975, which requires a vehicle to be maintained on the premises of a pawnshop for 21 days, does not clearly indicate that the original owner of the vehicle has a remedy for the failure to comply with that requirement or, if the owner does have a remedy, that it would include recovering the complete value of the vehicle from the pawnshop. In this case the trial court did not rely on a factual finding that the pledgor made an offer to pay the pawnshop before the expiration of the pawn ticket. Instead the trial court construed the Act in such a manner as to provide the pledgor a remedy for its violation, despite the fact that the pledgor had not in fact paid to redeem the vehicle (although he may have offered to do so). The pawnshop merely took possession of a vehicle that legally belonged to it. See § 5-19A-6, Ala.Code 1975 (providing that “[pjledged goods not redeemed within 30 days following the originally fixed maturity date shall be forfeited to the pawnbroker and absolute right, title, and interest in and to the goods shall vest in the pawnbroker”).

The Act, when examined in its entirety, does not indicate that the pledgor has any remedy for the violation of § 5-19A-5(c). Several other sections of the Act indicate that the legislature intended for the Supervisor of the Bureau of Loans of the State Banking Department to have the power to enforce the Act. Those sections provide:

“(a) In addition to any other penalty which may be applicable, any licensee who willfully violates this chapter or who willfully makes a false entry in any record specifically required by this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fíne not in excess of $1,000.00 per violation or false entry.
“(b) Compliance with this chapter shall be enforced by the supervisor who may exercise any authority conferred by law.
“(c) When the supervisor has reasonable cause to believe that a person is violating this chapter, the supervisor, in addition to and without prejudice to the authority provided elsewhere in this chapter, may enter an order requiring the person to stop or to refrain from the violation. The supervisor may sue in any circuit court of the state having jurisdiction and venue to enjoin the person from engaging in, continuing the violation, or from doing any act in furtherance of the violation. In an action, the court may enter an order or judgment awarding a preliminary or permanent injunction.”

§ 5-19A-17, Ala.Code 1975 (emphasis added).

“(a) The supervisor may, after notice and hearing, suspend or revoke any license upon a finding that:
“(1) The licensee, either knowingly or without the exercise of due care to prevent the same, has violated this chapter.”

§ 5-19A-13, Ala.Code 1975.

The view that, under the circumstances presented here, the pledgor does not have a private remedy for the violation of § 5-19A-5(c) of the Act is consistent with Ex parte Coleman, 861 So.2d 1080 (Ala.2003). In that case our supreme court determined that the pawnshop in that case had taken possession of the pawned vehicle within the 30-day period following the maturity date of the pawn ticket. Ex parte Coleman, 861 So.2d at 1085. The court calculated the last day on which the pledgor in that case could redeem his vehicle as being the 30th day following the maturity date of the pawn ticket. By doing so, our supreme court implicitly held that the pawnshop was not required first to take possession of the vehicle and then to give the pledgor a 30-day grace period in which to redeem the vehicle. Thus, the argument that the pawnshop in this case did not provide the pledgor with a 30-day grace period in which to redeem his vehicle is unconvincing, particularly when the pawnshop took possession of the vehicle in November 2002, at least 8 months after the maturity date of the pawn ticket and 7 months after the end of the grace period following the maturation of the pawn ticket.

Finally, in response to Judge Thompson’s writing concurring in the result only, we note that the parties made sufficient arguments to the trial court regarding the construction of the Act to preserve this issue for appeal. Furthermore, in the pawnshop’s brief to this court, it makes several arguments based upon § 5-19A-5, Ala.Code 1975. In our view, this matter has adequately been presented to this court.

III. Conclusion

Therefore, we conclude that although the pawnshop did violate the Act by selling the vehicle the same day it took possession of it, a legal remedy does not exist in favor of the pledgor for that violation. Instead, it appears that our legislature intended that the Supervisor of the Bureau of Loans of the State Banking Department possess the power to enforce compliance with § 5-19A-5(c), AIa.Code 1975. In light of our analysis, we reverse the judgment of the trial court concerning its construction of the Act. By doing so, we do not mean to indicate which party should ultimately prevail in this case; however, we note that the pledgor has stated potentially valid breach-of-contract and conversion claims. Therefore, we remand this case to the trial court so that it may reconsider the evidence and determine whether the pledgor in fact attempted to tender the required payment to the pawnshop either before the expiration of the pawn ticket or before the grace period had elapsed.

APPLICATION GRANTED; OPINION OF JUNE 2, 2006, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

THOMPSON,

concurring in the result only.

I do not agree, at least at this time, with that part of the main opinion concluding that § 5-19A-5, Ala.Code 1975, does not afford the pledgor a remedy. I believe that such decisions should be made by this court only when litigants with a stake in the outcome of the decision have advocated their positions on the issue to the trial court and to this court. In this case, the parties did not make arguments pertaining to that issue either before this court or before the trial court. I also disagree with the main opinion’s rationale for that conclusion, specifically, its construction of our supreme court’s opinion in Ex parte Coleman, 861 So.2d 1080 (Ala.2003). For these and other reasons, I concur in the result only.

PITTMAN, J., concurs.

      . It is clear from our review of the record that the pledgor’s unjust-enrichment claim was implicitly denied by the trial court. See generally 66 Am.Jur.2d Restitution and Implied Contracts § 24 (2001) (''[A]n action for unjust enrichment cannot lie in the face of an express contract.”).

      . We note that in Floyd v. Title Exchange & Pawn of Anniston, Inc., 620 So.2d 576 (Ala.1993), and subsequently in Blackmon v. Downey, 624 So.2d 1374 (Ala.1993), our supreme court held that a certificate of title to an automobile is "tangible personal property” within the meaning of the Act. Blackmon, 624 So.2d at 1376. Thus, this type of transaction involves a "pledged good” as defined in the Act, § 5-19A-2 (6), Ala.Code 1975, and is properly covered under the Act, not under Alabama's Small Loan Act. Floyd, 620 So.2d at 579.

      . We also note that the fact that the pledgor’s signature was forged on the power-of-attorney document, which was used to formally establish the pawnshop as a lienholder on the vehicle, does not — under the arguments presented in this case — affect the pawnshop's right to take possession of the vehicle. See Harkness v. EZ Pawn Alabama, Inc., 724 So.2d 32, 33 (Ala.Civ.App.1998)(noting that a secured party's rights over the collateral as against the debtor are unaffected by failure to perfect the security interest).


author: BRYAN, Judge.

text:
    ALLEN REVIVAL CENTER OF FAITH, INC., and Frederick Allen v. WILSON AVENUE BAPTIST CHURCH, INC., Clifton Enlers, and Dorothy Enlers.
    2050521.
    Court of Civil Appeals of Alabama.
    Dec. 1, 2006.

      Marcus E. McCrory, Mobile, for appellants.
    Ray M. Thompson, Mobile, for appellee Wilson Avenue Baptist Church, Inc.
    L.D. Holt, Bay Minette, for appellees Clifton Enlers and Dorothy Enlers.
   BRYAN, Judge.

The plaintiffs Allen Revival Center of Faith, Inc. (“Allen Revival”), and Frederick Allen appeal a summary judgment in favor of the defendant Wilson Avenue Baptist Church, Inc. (“Wilson Avenue”), a partial summary judgment in favor of the defendants Clifton Enlers and Dorothy Enlers (“the Enlerses”) with respect to Allen Revival and Frederick Allen’s claim against the Enlerses seeking to redeem a parcel of real property from foreclosure, and an order dismissing Allen Revival and Frederick Allen’s claims of conversion, detinue, trespass, and wrongful eviction and abuse of process against the Enlerses. Because we lack jurisdiction, we dismiss the appeal with respect to the summary judgment in favor of Wilson Avenue and the partial summary judgment in favor of the Enlerses. We affirm the order dismissing Allen Revival and Frederick Allen’s claims of conversion, detinue, trespass, and wrongful eviction and abuse of process against the Enlerses.

In 1995, Allen Revival purchased a parcel of real property (“the property”) in Mobile County from Wilson Avenue. Wilson Avenue financed a portion of the purchase price, and Allen Revival executed a promissory note evidencing its obligation to pay that portion of the purchase price. Wilson Avenue conveyed the property to Allen Revival by vendor’s lien deed; the vendor’s lien retained by Wilson Avenue in the deed secured the payment of the promissory note by Allen Revival. The deed contained a power of sale authorizing Wilson Avenue to foreclose Allen Revival’s interest in the property if Allen Revival defaulted in the payment of the promissory note or in performing any of the obligations imposed upon it by the vendor’s lien deed. The power of sale required Wilson Avenue to give Allen Revival 30 days’ notice of the foreclosure sale.

Following a default in payment of the promissory note by Allen Revival, Wilson Avenue, in 2002, gave Allen Revival 21 days’ notice that it would foreclose Allen Revival’s interest in the property by selling the property at a foreclosure sale on July 25, 2002. At the foreclosure sale on July 25, Wilson Avenue purchased the property. On July 30, 2002, Wilson Avenue conveyed the property to the Enlers-es. In August 2002, the Enlerses took possession of the property.

In January 2003, Allen Revival and Frederick Allen sued Wilson Avenue and the Enlerses. Allen Revival and Frederick Allen alleged two claims against Wilson Avenue. Both claims alleged that the foreclosure was wrongful because Wilson Avenue did not give Allen Revival 30 days’ notice of the foreclosure sale as required by the vendor’s lien deed. One of the claims sought an award of damages, while the other sought an order setting aside the foreclosure.

Allen Revival and Frederick Allen alleged five claims against the Enlerses. The first claim alleged that Allen Revival was entitled to redeem the property and sought an order requiring the redemption. The second claim alleged that, when the Enlerses took possession of the property in August 2002, they also took possession of some of Allen Revival and Frederick Allen’s personal property that was located on the property and thereby converted it. As relief for that alleged conversion, the second claim sought an award of damages. The third claim sought to recover possession of that personal property under a theory of detinue. The fourth claim alleged that, when the Enlerses took possession of the property in August 2002, they did so by forcibly entering the property while Allen Revival and Frederick Allen were still in possession and by physically removing Allen Revival and Frederick Allen from the property. According to the fourth claim, the Enlerses’ forcible entry and physical removal of Allen Revival and Frederick Allen constituted a trespass for which the Enlerses were liable for damages. Finally, the fifth claim alleged that the manner in which the Enlerses had evicted Allen Revival and Frederick Allen from the property was wrongful and constituted an abuse of process. As relief, the fifth claim sought an award of damages.

Wilson Avenue and the Enlerses answered Allen Revival and Frederick Allen’s complaint, and Wilson Avenue asserted a counterclaim against Allen Revival and Frederick Allen in which Wilson Avenue sought a judgment declaring that the foreclosure was valid. In addition, Wilson Avenue asserted a cross-claim against the Enlerses, and the Enlerses asserted a cross-claim against Wilson Avenue. Wilson Avenue’s cross-claim against the En-lerses sought to reform the warranty regarding title in the deed by which Wilson Avenue had conveyed the property to the Enlerses to except Allen Revival’s right to redeem the property from that warranty. The Enlerses’ cross-claim against Wilson Avenue sought an award of damages in the event the conveyance of the property to the Enlerses was set aside.

On February 11, 2005, Wilson Avenue moved for a summary judgment with respect to the issues whether the foreclosure was valid and whether Allen Revival and Frederick Allen were entitled to redeem the property. Wilson Avenue asserted that it was entitled to a summary judgment with respect to the issue whether the foreclosure was valid because, Wilson Avenue said, § 35-10-8, Ala.Code 1975, authorized it to sell the property at a foreclosure sale upon giving Allen Revival only 21 days’ notice of the foreclosure sale despite the provision in the power of sale in the vendor’s lien deed requiring it to give 30 days’ notice. Wilson Avenue asserted that it was entitled to a summary judgment with respect to the issue whether Allen Revival was entitled to redeem the property because, Wilson Avenue said, Allen Revival had not exercised its right to redeem within a year after the foreclosure sale as required § 6 — 5—248(b), Ala.Code 1975.

Following a hearing regarding Wilson Avenue’s summary-judgment motion on May 6, 2005, the trial court, on July 26, 2005, entered a written order (“the July 26 order”) with respect to Wilson Avenue’s summary-judgment motion. The July 26 order granted the summary-judgment motion with respect to the issue whether the foreclosure was valid, denied the summary-judgment motion with respect to the issue whether Allen Revival was entitled to redeem the property, and certified the summary judgment with respect to the issue whether the foreclosure was valid (“the summary judgment”) as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Allen Revival and Frederick Allen neither filed a postjudgment motion with respect to the July 26 order nor filed a notice of appeal within 42 days after the entry of the July 26 order.

On July 13, 2005, the Enlerses filed a third-party complaint against Title Assurance Company (“Title Assurance”), the company that closed the sale of the property from Wilson Avenue to the Enlerses, and Commonwealth Land Title Insurance Company (“Commonwealth”), the company that insured the Enlerses’ title to the property. The Enlerses sought to recover damages against Title Assurance and Commonwealth for failing to disclose that Allen Revival and Frederick Allen held a right of redemption when the Enlerses purchased the property from Wilson Avenue.

On July 19, 2005, Wilson Avenue moved the trial court to dismiss the Enlerses’ cross-claim against Wilson Avenue on the ground that that cross-claim presupposed that the foreclosure would be held invalid and the trial court, in ruling on Wilson Avenue’s summary-judgment motion, had held the foreclosure to be valid. On July 23, 2005, the trial court granted Wilson Avenue’s motion to dismiss the Enlerses’ cross-claim.

On September 12, 2005, the trial court granted counsel for Allen Revival and Frederick Allen leave to withdraw from representing them. New counsel appeared on behalf of Allen Revival and Frederick Allen on October 24, 2005.

On October 7, 2005, the trial court held a hearing on two motions that had been filed by the Enlerses. One of those motions sought an order compelling Allen Revival and Frederick Allen to respond to the Enlerses’ pending discovery requests. The trial court granted that motion and ordered Allen Revival and Frederick Allen to respond to the Enlerses’ pending discovery requests by 5:00 p.m. on October 12, 2005.

The other motion the trial court heard on October 7, 2005, was the Enlerses’ motion for a partial summary judgment with respect to Allen Revival and Frederick Allen’s claim seeking to redeem the property. As one of the grounds of their motion for a partial summary judgment, the Enlerses asserted that Allen Revival and Frederick Allen had forfeited their right to redeem the property by failing to vacate the property within 10 days after the En-lerses delivered a written demand for possession of the property, and they supported their motion with affidavits tending to prove that ground. Allen Revival and Frederick Allen did not submit any evidence in opposition to the Enlerses’ motion for a partial summary judgment. On October 12, 2005, the trial court entered a written order (“the October 12 order”) granting the Enlerses’ motion for a partial summary judgment and certifying that partial summary judgment (“the partial summary judgment”) as a final judgment pursuant to Rule 54(b). Allen Revival and Frederick Allen neither filed a post-judgment motion with respect to the October 12 order nor filed a notice of appeal within 42 days after the entry of the October 12 order.

On November 3, 2005, the trial court heard another motion filed by the Enlers-es. That motion sought an order dismissing Allen Revival and Frederick Allen’s claims of conversion, detinue, trespass, and wrongful eviction and abuse of process against the Enlerses on the ground that Allen Revival and Frederick Allen had not responded to the Enlerses’ pending discovery requests. The trial court granted that motion on November 3.

On November 21, 2005, the trial court, upon the Enlerses’ motion, dismissed, without prejudice, the Enlerses’ third-party claims against Title Assurance and Commonwealth. On December 16, 2005, the trial court, ex mero motu, dismissed any remaining claims that had not been previously adjudicated.

On December 27, 2005, Allen Revival and Frederick Allen filed a notice of appeal to the supreme court. No other parties appealed or cross-appealed. The supreme court, pursuant to § 12-2-7(6), Ala. Code 1975, transferred Allen Revival and Frederick Allen’s appeal to this court.

As a threshold matter, Wilson Avenue and the Enlerses challenge this court’s jurisdiction to review the summary judgment and the partial summary judgment. They argue that this court does not have jurisdiction because the summary judgment and the partial summary judgment were final judgments and Allen Revival and Frederick Allen did not file notices of appeal within 42 days after the entry of the summary judgment and the partial summary judgment as required by Rule 4(a)(1), Ala. R.App. P.

In response, Allen Revival and Frederick Allen argue that this court does have jurisdiction to review the summary judgment and the partial summary judgment because, they say, the summary judgment and the partial summary judgment were not final judgments because, they say, the trial court’s certifications of the summary judgment and the partial summary judgment as final judgments were not valid for two reasons. First, they argue, the certifications were not valid because the trial court did not state the reasons why it found there was no just reason to delay certifying the summary judgment and the partial summary judgment as final judgments. However, the trial court was not required to state its reasons. See Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 753, 756 (Ala.2000). Although this court, in Brown v. Whitaker Contracting Corp., 681 So.2d 226 (Ala.Civ.App.1996), held that a trial court, in addition to making a finding that there is no just reason to delay certifying the interlocutory judgment as a final judgment, must also state the reasons why it finds there is no just reason to delay the certification, the supreme court, in Schneider National Carriers, Inc. v. Tinney, stated:

“Rule 54(b) does not require a trial court to list the factors it considered in finding that there is no just reason for delay. To the extent that Brown [v. Whitaker Contracting Corp.] conflicts with Rule 54(b), Brown [v. Whitaker Contracting Corp.] is overruled....”

776 So.2d at 756 n. 3.

Second, Allen Revival and Frederick Allen argue that the trial court’s certifications of the summary judgment and the partial summary judgment as final judgments were not valid because the claims adjudicated by the summary judgment and the partial summary judgment were so intertwined with one or more of the claims that remained unadjudicated after the trial court entered the summary judgment and the partial summary judgment that certifying the summary judgment and the partial summary judgment as final judgments created a risk of inconsistent results with respect to one or more of the remaining unadjudicated claims. Although the supreme court has set aside a certification of an interlocutory judgment as final if the judgment adjudicated a claim that was “ ‘so closely intertwined’ ” with a remaining unadjudicated claim “that there existed an unreasonable risk of inconsistent results should the disposition of the one become final before the other was resolved,” Hillman v. Yarbrough, 936 So.2d 1056, 1061 (Ala.2006), the certifications of the summary judgment and the partial summary judgment as final judgments in the case now before us did not create a risk of such inconsistent results.

The summary judgment, which ruled that the foreclosure was valid, adjudicated Allen Revival and Frederick Allen’s claims against Wilson Avenue and Wilson Avenue’s counterclaim against Allen Revival and Frederick Allen because the disposi-tive issue in those claims and that counterclaim was whether the foreclosure was valid. None of the claims remaining unadjudicated after those claims and that counterclaim were adjudicated by the summary judgment required an adjudication regarding the validity of the foreclosure. Therefore, the claims adjudicated by the summary judgment were not so intertwined with the remaining unadjudi-cated claims that the certification of the summary judgment as a final judgment created a risk of an inconsistent result with respect to one or more of the remaining unadjudicated claims.

The partial summary judgment adjudicated Allen Revival and Frederick Allen’s claim against the Enlerses seeking redemption of the property. None of the claims remaining unadjudicated after the adjudication of that claim by the partial summary judgment required a determination regarding whether Allen Revival and Frederick Allen were entitled to redeem the property. Therefore, the claim adjudicated by the partial summary judgment was not so intertwined with the remaining unadjudicated claims that the certification of the partial summary judgment as a final judgment created a risk of an inconsistent result with respect to one or more of the remaining unadjudicated claims. Accordingly, we cannot set aside the trial court’s certifications of the summary judgment and the partial summary judgment as final judgments on the basis of Allen Revival and Frederick Allen’s second argument.

Thus, because Allen Revival and Frederick Allen did not file notices of appeal within 42 days after the entry of the summary judgment and the partial summary judgment, this court does not have jurisdiction to review the summary judgment or the partial summary judgment. See Rule 4(a), Ala. R.App. P., and Gunnizon-Mack v. Alabama State Pers. Bd., 923 So.2d 319, 321 (Ala.Civ.App.2005). Accordingly, we dismiss Allen Revival and Frederick Allen’s appeal insofar as it seeks review of the summary judgment and the partial summary judgment. See Rule 2(a)(1), Ala. R.App. P., and Gunnison-Mack, 923 So.2d at 321.

Allen Revival and Frederick Allen argue that the trial court erred in dismissing their claims of conversion, deti-nue, trespass, and wrongful eviction and abuse of process against the Enlerses because, they say, (1) the record does not establish that they were served with either the Enlerses’ motion to compel or their motion to dismiss those claims; (2) Allen Revival and Frederick Allen did not willfully fail to respond to the Enlerses’ discovery requests; and (3) dismissal of those claims is too harsh of a sanction for Allen Revival and Frederick Allen’s failure to respond to the Enlerses’ discovery requests. However, the record does not indicate that any of these arguments were presented to the trial court either before or after the trial court dismissed the claims of conversion, detinue, trespass, and wrongful eviction and abuse of process. Even if Allen Revival had no notice of the Enlerses’ motion to compel and the En-lerses’ motion to dismiss Allen Revival and Frederick Allen’s claims of conversion, detinue, trespass, and wrongful eviction and abuse of process until after the trial court dismissed those claims, Allen Revival and Frederick Allen had the opportunity after the dismissal to file a motion challenging the dismissal of those claims in the trial court on the basis of the arguments now presented on appeal. See Green v. Taylor, 437 So.2d 1259 (Ala.1983). However, Allen Revival and Frederick Allen elected to appeal the dismissal of those claims without first challenging the dismissal in the trial court on the basis of the arguments they now present on appeal. This court “will not ‘reverse a trial court’s judgment based on arguments not presented to the trial court....’” Yellow Dog Dev. LLC v. Bibb County, 871 So.2d 39, 41 (Ala.2003) (quoting Brown v. Wal-Mart Stores, Inc., 864 So.2d 1100, 1104 (Ala.Civ. App.2002)).

Rule 52(b), Ala. R. Civ. P., does not relieve Allen Revival and Frederick Allen of their obligation to object in the trial court to the dismissal of their claims of conversion, detinue, trespass, and wrongful eviction and abuse of process in order to preserve for our review the issue whether the trial court erred in dismissing those claims. Rule 52(b), by its terms, applies only to findings of fact made by a trial judge following a bench trial. Although in Ex parte James, 764 So.2d 557 (Ala.1999), a plurality of the supreme court was willing to construe an award of attorneys’ fees by a trial judge following a bench trial as tantamount to a finding of fact following a bench trial and, therefore, that it was governed by Rule 52(b), that plurality holding has no application to a dismissal before trial. Moreover, because the opinions in Stephenson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 940 So.2d 307, 308-09 (Ala.Civ.App.2006); Radford v. Radford, 917 So.2d 155 (Ala.Civ.App.2005); and Brown v. Brown, 896 So.2d 573 (Ala.Civ.App.2004), do not state that the appellants in those cases had not objected to the dismissal of their actions in the trial court before appealing to the appellate court, those cases do not constitute precedent for holding that a plaintiff is not obligated to object to the dismissal of his action in the trial court in order to preserve for appellate review the issue whether the trial court erred in dismissing the action. Accordingly, we affirm the trial court’s dismissal of Allen Revival and Frederick Allen’s claims of conversion, detinue, trespass, and wrongful eviction and abuse of process against the Enlerses.

APPEAL DISMISSED IN PART; AFFIRMED IN PART.

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

MURDOCK, J., dissents, without writing.

      . Because the parties do not address the issue whether Frederick Allen had standing to sue Wilson Avenue and the Enlerses, we express no opinion regarding that issue.

      . The dispositive issue regarding Allen Revival and Frederick Allen’s claims against Wilson Avenue and Wilson Avenue’s counterclaim against Allen Revival and Frederick Allen was whether the foreclosure was valid. Allen Revival and Frederick Allen asserted their claim seeking redemption of the property against only the Enlerses. Consequently, the issue whether Allen Revival was entitled to redeem the property was not dispositive of either Allen Revival and Frederick Allen’s claims against Wilson Avenue or Wilson Avenue’s counterclaim against Allen Revival and Frederick Allen.

      . Section 35-10-8 states:
      “Notice of [a foreclosure sale under a power of sale] shall be given in the manner provided in such mortgage or deed of trust or in this Code in the county where the mortgagor resides and the land, or a part thereof, is located; but, if said mortgagor does not reside in the county where the land or any part thereof is located then such notice must be published in the county where the land, or any material part thereof, is located; provided that notice of all sales under powers of sale contained in mortgages and deeds of trust executed after July 1, 1936, where the amount secured is $500.00 or more, shall be given by publication once a week for three successive weeks in some newspaper published in the county in which such land or any portion thereof is situated, and said notice of sale must give the time, place and terms of said sale, together with a description of the property to be sold.’’
      A vendor’s lien is encompassed by the term "mortgage.” See § 6-5-247(2), Ala.Code 1975.

      .Despite its denial of the summary-judgment motion with respect to the issue whether Allen Revival was entitled to redeem the property, the July 26 order, by granting the summary-judgment motion with respect to the issue whether the foreclosure was valid, adjudicated Allen Revival and Frederick Allen’s claims against Wilson Avenue and Wilson Avenue’s counterclaim against Allen Revival and Frederick Allen. See footnote 2, supra. Although the July 26 order entered only a partial summary judgment in favor of Wilson Avenue because it did not adjudicate Wilson Avenue’s cross-claim against the Enlerses, we refer to it as "the summary judgment” for convenience in distinguishing it from the partial summary judgment in favor of the Enlers-es.

      . The pertinent portion of Rule 54(b) states:
      "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment....”

      . As noted above, the original counsel for Allen Revival and Frederick Allen withdrew on September 12, 2005, and new counsel appeared on October 24, 2005. The certificate of service on the Enlerses’ motion to dismiss Allen Revival and Frederick Allen’s claims of conversion, detinue, trespass, and wrongful eviction and abuse of process against the Enlerses indicates that that motion was served on Allen Revival and Frederick Allen's original counsel on October 4, 2005, which was after he had withdrawn. The certificate of service on that motion does not indicate that it was served on Allen Revival or Frederick Allen. Moreover, the record does not contain any indication that that motion was served on new counsel for Allen Revival and Frederick Allen after he appeared on October 24. Furthermore, the record does not indicate whether Allen Revival and Frederick Allen or their new counsel appeared at the hearing regarding that motion on November 3, 2005.

      . In pertinent part, Rule 52(b) provides:
      “When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the court an objection to such findings or has made a motion to amend them or a motion for judgment or a motion for a new trial.”
      (Emphasis added.)


author: BRYAN, Judge. PITTMAN, Judge,

text:
    Michael R. PETERSEN and Rebecca C. Petersen v. WOODLAND HOMES OF HUNTSVILLE, INC., and Michael W. Friday.
    2050637.
    Court of Civil Appeals of Alabama.
    Dec. 1, 2006.

      Melissa D. Endsley of Thomas S. McGrath, P.C., Huntsville, for appellants.
    Benjamin R. Rice and Thomas A. Wheat of Spurrier, Rice & Hall, Huntsville, for appellees.
   BRYAN, Judge.

The plaintiffs, Michael R. Petersen and Rebecca C. Petersen, appeal from a summary judgment in favor of the defendants, Woodland Homes of Huntsville, Inc., and Michael W. Friday, the president of Woodland Homes. We reverse and remand.

In January 2001, the Petersens contracted with Woodland Homes to purchase a recently built house. After the Petersens moved into the house, defective kitchen cabinets in the house were replaced, pursuant to a manufacturer’s warranty. On November 7, 2003, Michael Petersen sued Woodland Homes in the Madison District Court, alleging that Woodland Homes had improperly installed the replacement kitchen cabinets. On March 31, 2004, the district court entered a judgment in favor of Woodland Homes on Petersen’s claim. Petersen subsequently appealed the district court’s judgment to the Madison Circuit Court for a trial de novo, pursuant to § 12-12-71, Ala.Code 1975. That case was docketed in the circuit court as case no. CV-04-968. Petersen’s appeal of the district court’s judgment to the circuit court was pending when the summary judgment against the Petersens in the present case was entered and when the Petersens appealed that judgment.

On September 2, 2005, the Petersens filed a complaint against Woodland Homes, Michael W. Friday, and fictitiously named parties in the Madison Circuit Court, alleging suppression, reckless misrepresentation, fraud, willful deception, innocent misrepresentation, negligence, wantonness, breach of the implied warranty of habitability, breach of the implied warranty of good workmanship, breach of expressed and implied warranties, breach of contract, and deceptive trade practices. The claims alleged by the Petersens were based upon these factual allegations in the complaint:

“7. In or about April, 2005, the [Pet-ersens] discovered water leaking into their home around several windows.
“8. Upon investigation, the [Peter-sens] discovered that the Defendants] failed to install weep holes for the brick lentils above the windows as required by the Standard Building Code.
“9. In addition, the Defendants failed to install adequate flashing around the windows and there is excessive mortar around the top of the windows.
“10. Upon further investigation, it was determined that the exterior house wrap was not properly installed and led to further water intrusion into the residence.”

On September 29, 2005, the defendants filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss the Petersens’ action for failure to state a claim upon which relief can be granted, asserting that the doctrines of res judicata and collateral estop-pel, ie., issue preclusion, barred the Peter-sens’ claims. The defendants attached to their motion to dismiss a motion that had been filed by Michael Petersen in case no. CV-04-968, the appeal from the district court’s judgment. The attached motion, filed on August 17, 2005, was titled “Plaintiffs Motion to Withdraw Plaintiffs Motion for Leave to Amend Complaint” and stated that Petersen was withdrawing his motion to amend his complaint in case no. CV-04-968. The face of that motion indicated that the motion had been granted by the circuit court on August 18, 2005. The defendants also attached to the motion to dismiss a motion that Woodland Homes had filed in case no. CV-04-968, titled “Defendant’s Motion to Strike Plaintiffs Motion for Leave to Amend Complaint and Plaintiffs Amended Complaint.”

On October 20, 2005, the Petersens filed a response to the motion to dismiss, arguing, among other things, that their claims were not barred by the doctrine of res judicata or collateral estoppel. On October 31, 2005, the defendants filed an “amended motion to dismiss, or, in the alternative[,] a motion to compel arbitration.” Although titled as an “amended motion to dismiss,” the motion was only a motion to dismiss insofar as it incorporated the defendants’ September 29, 2005, motion to dismiss; the motion essentially was a motion to compel arbitration.

The circuit court held a hearing on the defendants’ motion to dismiss and the Pet-ersens’ response to that motion on November 4, 2005. On November 8, 2005, the circuit court granted the defendants’ motion to dismiss and entered a judgment in favor of the defendants in the present case. The judgment stated that the circuit court considered “testimony and evidence presented” in ruling on the motion to dismiss, but the judgment did not specify the “testimony and evidence” that was presented to and considered by the circuit court.

On December 6, 2005, the Petersens moved the circuit court to reconsider the dismissal, arguing that their claims were not barred by the doctrine of res judicata or collateral estoppel. The “motion to reconsider” was denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P. The Petersens timely appealed to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

Rule 12(b), Ala. R. Civ. P., states, in pertinent part: “If, on a motion asserting the defense numbered (6) to dismiss for failure ... to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment....” Although the defendants titled their motion as a motion to dismiss, they submitted in support of that motion filings in Michael Petersen’s previously filed action, case no. CV-04-968. Additionally, the circuit court’s judgment indicates that the circuit court considered matters outside the pleadings in ruling on the motion to dismiss. In Hornsby v. Sessions, 703 So.2d 932, 937-38 (Ala.1997), the supreme court stated:

“When matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment, Rule 12(b), Ala. R. Civ. P.; this is the case regardless of what the motion has been called or how it was treated by the trial court, Papastefan v. B & L Constr. Co., 356 So.2d 158 (Ala.1978); Thorne v. Odom, 349 So.2d 1126 (Ala.1977).”

Because the circuit court was presented with, and did not exclude from its consideration, matters outside the pleadings, the defendants’ motion to dismiss was converted into a motion for a summary judgment. Rule 12(b), Ala. R. Civ. P.; Hornsby v. Sessions, supra. Therefore, in reviewing the circuit court’s judgment, we apply the standard of review applicable to summary judgments.

“Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425 (Ala.1999).... In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court. Dobbs, supra.

Bruce v. Cole, 854 So.2d 47, 54 (Ala.2003).

On appeal, the Petersens argue that the circuit court erred in entering a summary judgment because, the Petersens say, their claims were not barred by the doctrine of res judicata or collateral estop-pel. “Res judicata and collateral estoppel are affirmative defenses. Rule 8(c), Ala. R. Civ. P. The party asserting an affirmative defense bears the burden of proving it. Ex parte Ramsay, 829 So.2d 146 (Ala. 2002).” Stewart v. Brinley, 902 So.2d 1, 11 (Ala.2004).

“The essential elements of res judica-ta are (1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions. If those four elements are present, then any claim that was, or that could have been, adjudicated in the prior action is barred from further litigation. Dairyland Ins. Co. v. Jackson, 566 So.2d 723, 725-26 (Ala.1990).”

Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 636 (Ala.1998).

“For the doctrine of collateral estop-pel to apply, the following elements must be established:
“ ‘ “(1) that an issue in a prior action was identical to the issue litigated in the present action; (2) that the issue was actually litigated in the pri- or action; (3) that resolution of the issue was necessary to the prior judgment; and (4) that the same parties are involved in the two actions.”
‘Smith v. Union Bank & Trust Co., 653 So.2d 933, 934 (Ala.1995).
‘"Where these elements are present, the parties are barred from relitigat-ing issues actually litigated in a prior [action].’ ” Smith, 653 So.2d at 934 (quoting Lott v. Toomey, 477 So.2d 316, 319 (Ala.1985)).’
“Biles v. Sullivan, 793 So.2d 708, 712 (Ala.2000). ‘Only issues actually decided in a former action are subject to collateral estoppel.’ Leverette ex rel. Gilmore v. Leverette, 479 So.2d 1229, 1237 (Ala.1985) (emphasis added). The burden is on the party asserting collateral estop-pel to prove that the issue it is seeking to bar was determined in the prior adjudication.”

Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So.2d 507, 520 (Ala.2002).

The defendants argue that the circuit court correctly entered a summary judgment because, they say, the district court’s judgment entered against Michael Petersen operates as res judicata on the Petersens’ claims. Michael Petersen appealed the district court’s judgment to the circuit court for a trial de novo, pursuant to § 12-12-71, Ala.Code 1975. Section 12-12-71, Ala.Code 1975, provides that, with certain exceptions that are not applicable in this case, “all appeals from final judgments of the district court shall be to the circuit court for trial de novo.” “ ‘Alabama cases have consistently held that a trial de novo means an entirely new trial, “as if no trial had ever been had, and just as if it had originated in the circuit court.” Cloverleaf Land Co. v. State, 276 Ala. 443, 163 So.2d 602 (1964).’ ” State v. Reynolds, 887 So.2d 848, 853 (Ala.2004) (quoting Ex parte Palughi 494 So.2d 404, 408 (Ala.1986)). “A trial de novo ... means ‘trying anew the matters involved in the original hearing as if they had not been heard before and as if no decision had been previously entered.’ ” Neal v. First Alabama Bank of Huntsville, N.A., 440 So.2d 1111, 1112 (Ala.Civ.App.1983)(quoting Rudolph v. State, 286 Ala. 189, 190, 238 So.2d 542, 543 (1970))(emphasis omitted).

In Cloverleaf Land Co. v. State, 276 Ala. 443, 445^6, 163 So.2d 602, 605 (1964), our supreme court stated:

“[W]e held in Thompson v. City of Birmingham, 217 Ala. 491, 492, 117 So. 406(2), 407 [(1928)], ‘A trial de novo means a new trial “as if no trial had ever been had, and just as if it had originated in the circuit court,” ’ citing Louisville & N.R.R. Co. v. Lancaster, 121 Ala. 471, 473, 25 So. 733, 735 [ (1899) ], wherein this court said:
“ ‘... The appeal [to be tried de novo], when taken, operates to annul and vacate the entire judgment of the justice of the peace, and not a part only of the judgment. The judgment of the justice cannot upon the, trial in the circuit court be looked to as a matter of evidence or of estoppel.’ ”

In Alabama Power Co. v. Thompson, 250 Ala. 7, 14, 32 So.2d 795, 801 (1947), our supreme court stated that a probate court’s judgment that is being appealed to a circuit court for a trial de novo does not operate as res judicata or collateral estop-pel in a subsequent action. In Thompson, the supreme court stated:

“In this jurisdiction a judgment will operate as res judicata or as estoppel notwithstanding an appeal when the appellate court action is based on a review of the record made below. Corinth Bank & Trust Co. v. Lawler, 218 Ala. 83, 117 So. 620 [ (1928) ]; Collier v. Alexander, 142 Ala. 422, 38 So. 244 [ (1905) ]; Viberg v. State, 138 Ala. 100, 35 So. 53, 100 Am. St. Rep. 22 [ (1903) ].
“But the rule of the cases just above cited is not controlling here because appeals of the kind here involved [a condemnation judgment entered by a probate court] are tried de novo in the appellate court (circuit court)....
“The effect of an appeal triable de novo on the order of condemnation appealed from is said to be as follows in Lewis on Eminent Domain, 3d Ed., § 793, p. 1409: ‘The effect of an appeal where there is a trial de novo in the appellate court is to vacate the decision appealed from until the appeal is disposed of. But if the appeal is dismissed, the decision appealed from is restored to full force and effect.’ ... The same rule is stated generally as to all types of appeals triable de novo in the appellate court in 2 Freeman on Judgments, § 722, p. 1528. See Moss v. Taylor, 73 Utah 277, 273 P. 515 [ (1929) ]; Silent Automatic Sales Corporation v. Stayton, 8 Cir., 45 F.2d 476 [ (1930) ].”

250 Ala. at 12-13, 32 So.2d at 800.

Michael Petersen appealed the district court’s judgment to the circuit court for a trial de novo, and that case had not yet been adjudicated in the circuit court when the circuit court entered a summary judgment on the Petersens’ claims in the present case. Because the circuit court tries de novo the case appealed from the district court’s judgment, the district court’s judgment is not a final judgment for purposes of res judicata. Thompson, supra; and Cloverleaf Land Co., supra. For the doctrine of res judicata to apply, there must exist “a prior judgment on the merits.” Equity Res. Mgmt., 723 So.2d at 636. Because the district court’s judgment does not act as a prior judgment on the merits for purposes of res judicata, that judgment does not operate as res judicata on the Petersens’ claims.

The Petersens’ claims are similarly not barred by the doctrine of collateral estoppel. “ ‘Only issues actually decided in a former action are subject to collateral estoppel.’ ” Lee L. Saad Constr. Co., 851 So.2d at 520 (quoting Leverette ex rel. Gilmore v. Leverette, 479 So.2d 1229, 1237 (Ala.1985)) (emphasis omitted). As noted, Michael Petersen’s appeal of the district court’s judgment to the circuit court for a trial de novo means that the circuit court tries the case “ ‘as if no decision had been previously entered.’ ” Neal, 440 So.2d at 1112 (quoting Rudolph, 286 Ala. at 190, 238 So.2d at 543). Therefore, the district court’s judgment did not, in effect, actually decide any issues and would not serve as a bar to the subsequent litigation of those issues. Thompson, supra; and Cloverleaf Land Co., supra. Moreover, we note that the sole issue in the district court case— whether Woodland Homes improperly installed kitchen cabinets — is not identical to any issue in the Petersens’ action in the present case, which concerns alleged water damage to the Petersens’ house. For the doctrine of collateral estoppel to apply, “ ‘ “an issue in [the] prior action [must be] identical to the issue litigated in the present action.” ’ ” Lee L. Saad Constr. Co., 851 So.2d at 520 (quoting Biles v. Sullivan, 793 So.2d 708, 712 (Ala.2000), quoting in turn Smith v. Union Bank & Trust Co., 653 So.2d 933, 934 (Ala.1995)).

In moving for a summary judgment, the defendants failed to establish that the doctrine of res judicata or collateral estoppel barred the Petersens’ claims. Accordingly, we reverse the summary judgment in favor of the defendants, and we remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

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

PITTMAN, Judge,

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

I am not convinced that the circuit court’s consideration of materials that were filed in Michael Petersen’s de novo appeal, which was pending in the same circuit court, warrants a conclusion that the judgment under review is a summary judgment pursuant to Rule 56(c), Ala. R. Civ. P., and not a judgment of dismissal pursuant to Rule 12(b)(6), Ala. R. Civ. P. When a party, in a motion to dismiss, refers to another pending proceeding in the same court, “that court may and should take judicial notice of the entire prior proceeding insofar as it is relevant to the question of law presented.” Slepian v. Slepian, 355 So.2d 714, 716 (Ala.Civ.App.1977); see also ITT Rayonier, Inc. v. United States, 651 F.2d 343, 345 n. 2 (5th Cir. Unit B July 1981) (indicating that pursuant to Rule 12(b)(6), Fed.R.Civ.P., which is analogous to Rule 12(b)(6), Ala. R. Civ. P., a court may take judicial notice of its own records in other proceedings).

That said, however, the procedural character of the judgment under review is not crucial in this appeal. Rather, the question of law presented — whether principles of res judicata and collateral estoppel bar the Petersens’ action against the defendants — is crucial, and is properly answered in the main opinion. I therefore concur as to that aspect of the main opinion.

CRAWLEY, P.J., and MURDOCK, J., concur.

      . The Petersens later dismissed their claims alleging breach of the implied warranty of habitability, breach of the implied warranty of good workmanship, and breach of expressed and implied warranties.

      . The defendants asserted "collateral estop-pel” and "issue preclusion” as separate grounds for barring the Petersens’ claims. Because the terms "collateral estoppel” and "issue preclusion” describe the same doctrine, see Ex parte Flexible Products Co., 915 So.2d 34, 45 (Ala.2005), we will treat these separately asserted grounds as one and refer to this single ground as “collateral estoppel.”


author: PER CURIAM.

text:
    Paul Alfred BROWN, Appellant, v. STATE of Florida, Appellee.
    No. SC05-1018.
    Supreme Court of Florida.
    April 12, 2007.
    Rehearing Denied June 7, 2007.
    John W. Jennings, Capital Collateral Regional Counsel, Middle Region, Carol C. Rodriguez, Assistant CCRC, Tampa, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, Florida and Robert J. Landry, Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from an order denying a motion to vacate a sentence of death under Florida Rule of Criminal Procedure 3.850. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the reasons that follow, we affirm the trial court’s finding that Paul Alfred Brown is not mentally retarded and affirm its denial of relief.

After confessing to the police, Brown was convicted of first-degree murder, as well as other crimes, in the 1986 murder of seventeen-year-old Pauline Cowell. The judge followed the jury’s recommendation of death, finding that the aggravating factors outweighed the mitigating factors that were presented, and sentenced Brown to death. This Court affirmed his convictions and sentence of death on direct appeal. See Brown v. State, 565 So.2d 304 (Fla.1990), abrogated on other grounds by Jackson v. State, 648 So.2d 85 (Fla.1994). Brown filed a motion for postconviction relief, which was denied. Brown v. State, 755 So.2d 616 (Fla.2000). The Court also denied Brown’s petition for a writ of habe-as corpus. Brown v. Moore, 800 So.2d 223 (Fla.2001).

In September of 2001, Brown filed a successor motion to vacate sentence, asserting that he is mentally retarded based on the definition provided in section 921.137, and hence the penalty of death must be vacated. The trial court held an initial evidentiary hearing in the case, at which time the State and the defendant presented conflicting expert opinions as to whether Brown was mentally retarded. Brown presented Dr. Valerie McClain, and the State presented Dr. Gregory Prichard. The court then appointed its own expert, Dr. Michael Maher, and an additional evi-dentiary hearing was conducted. On April 25, 2005, the lower court entered an order denying relief as follows:

As in Bottoson [v. State, 813 So.2d 31 (Fla.2002) ], three doctors were enlisted to evaluate the mental capacity of Defendant in regard to the instant motion. Drs. Valerie McClain, Gregory Prichard, and Michael Maher each submitted an evaluation on defendant’s mental capacity and testified as to their findings. Drs. Prichard and Maher determined Defendant to be mentally competent, but Dr. McClain found Defendant to be mildly mentally retarded.
The Court has struggled with the determination made by Dr. McClain. Recent testing suggests that Defendant’s IQ is near the mildly mentally retarded range. However, Dr. McClain’s report of Defendant’s adaptive functioning indicates that Defendant would be classified in the severely mentally retarded range. It is this inconsistency in Dr. McClain’s reporting that gives the Court pause.
It seems that Dr. McClain relies very heavily on the language of the rule regarding the onset of mental deficits pri- or to age 18, ignoring the fact that mental deficits must manifest by age 18 and exist presently. Dr. Prichard specifically addresses this point during his testimony. Furthermore, on cross-examination, defense counsel inquired into Dr. Prichard’s reasoning for failing to interview individuals to comment on Defendant’s adaptive functioning prior to age 18. Dr. Prichard explained that due to the fact that Defendant’s present adaptive functioning did not meet the criteria for mental retardation, there was no reason to address the third prong of the test for retardation.
Dr. McClain testified regarding Defendant’s ability to maintain a five-year intimate relationship, “I do believe that was after he was 18.” That Defendant may have been described at an early age as having socialization issues, does not mean that he satisfies the statutory definition of mentally retarded if he is currently able to socialize and adapt at an acceptable level. The mental deficits have to manifest prior to 18 and continue to exist presently, or concurrently with significant subaverage general intellect. Dr. McClain failed to report on Defendant’s current adaptive functioning.
Contrary to Dr. McClain’s assessment, Drs. Prichard and Maher each tested the Defendant and found that the recent IQ scores suggesting a range of mildly mentally retarded were a result of malingering.[n.l] Dr. Prichard believes Defendant to be in the “high end of the borderline range or at the low end of the average range.” According to Drs. Prichard and Maher, it is reasonable to believe that a person in Defendant’s situation has a strong motivation to perform poorly on examinations in order to be declared mentally retarded.
[n.l] Dr. Prichard testified that he did not believe Defendant’s IQ score of 68 represented an accurate reporting. Specifically, Dr. Prichard felt that Defendant was purposely hesitating in giving responses.
Dr. Maher testified that he believed the testing he performed on Defendant did not accurately reflect Defendant’s true intellectual capabilities.
Likewise, the results of the Vineland test administered by Dr. Prichard suggest Defendant is not mentally retarded in terms of adaptive functioning.[n.2] Dr. Prichard commented on the level of support needed by an individual that scores 29 in adaptive functioning — the value attributed by Dr. McClain in her examination:
An adaptive functioning of 29 would correspond to a support level of extensive. It would mean the person would need extensive support, which is characterized by individuals requiring extensive or continuous support and supervision. For example, an individual may attain beginning self-care skills, but may need continuous supervision from someone within the same room or nearby.
[n.2] Dr. Prichard testified that he has administered the Vineland test approximately 800 times. Dr. Prichard’s results from the administration of the Vineland test was accepted by the trial court in Bottoson v. State, 813 So.2d 81 (Fla.2002).
Dr. Prichard’s examination supports the fact that Defendant is clearly capable of caring for himself and places extreme doubt on the validity of Dr. McClain’s assessment, [n.3] Therefore, the Court finds Dr. Prichard’s and Dr. Maher’s analysis to be accurate. Based on Dr. Prichard’s, Dr. Maher’s, and the Court’s observations of the Defendant and on the doctors’ determination that Defendant is not mentally retarded, the Court finds that Defendant is not entitled to the relief requested.
[n.3] Dr. Prichard lists the tasks Defendant has been able to perform and continues to do.

Brown appeals this order.

To establish mental retardation, Brown must demonstrate all three of the following: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. Fla. R.Crim. P. 3.203(b). The trial court determined that based on the three experts’ evaluations, Brown did not come within the definition of mental retardation. When reviewing the trial court’s findings relative to the existence of mental retardation, this Court looks to whether competent, substantial evidence supports the trial court’s findings. See Trotter v. State, 932 So.2d 1045, 1049 (Fla. 2006). This Court does not reweigh the evidence or second-guess the circuit court’s findings as to the credibility of witnesses. Id. at 1050. As stated in Tibbs v. State, 397 So.2d 1120 (Fla.1981):

As a general proposition, an appellate court should not retry a case or reweigh conflicting evidence submitted to a jury or other trier of fact. Rather, the concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the [decision].

Id. at 1123 (footnote omitted).

The testimony presented at the eviden-tiary hearing showed that Brown has seen numerous mental health experts since he was ten years old. Several IQ tests placed Brown in the mildly mentally retarded range, and there were references as to some deficits in his adaptive functioning skills. On the other hand, some of his IQ scores were higher than what a mentally retarded person would have, particularly as to Brown’s performance IQ. Dr. McClain offered one explanation of this disparity, contending that the higher scoring tests were not the proper tests or they were outdated and needed to be adjusted. The other experts disagreed that an adjustment was needed and further asserted that these higher IQ scores established that Brown was capable at times of performing better than one who is mentally retarded. As a result, they concluded that any deficits in Brown’s IQ were not caused by mental retardation but were caused by malingering and mental disorders which appeared on a sporadic basis.

In Cherry v. State, No. SC02-2023, 959 So.2d 702, 2007 WL 1074931 (Fla. Apr. 12, 2007), we held that the statutory definition of mental retardation required a showing that a defendant had an IQ score of 70 or below. Here, the trial court found that there was a question as to the accuracy of the IQ testing and proceeded to the evaluation of the second prong of the statutory definition of mental retardation, i.e., concurrent deficits in adaptive behavior. As to this second prong, the case became a conflict between the opinions of the experts which had to be resolved by the trial judge after weighing the evidence, listening to the expert testimony, and judging overall credibility of each. The trial judge’s order denying relief clearly showed that the court was troubled with the' testimony of Brown’s expert, Dr. McClain, particularly in regard to her report that Brown’s adaptive functioning indicates that he is in the severely mentally retarded range and would need extensive or continuous support. This report was contradictory to the evidence that Brown was engaged in a five-year intimate relationship prior to the crime, that he had his driver’s license and drove a car, and that he was employed in numerous jobs including as a mechanic.

In this appeal, the defendant essentially argues that the trial court should have weighed Dr. McClain’s testimony more heavily and discounted the testimony of Drs. Prichard and Maher based on the testimony of Dr. McClain. However, questions relating to evidentiary weight and credibility of witnesses are reserved to the trial court. See, e.g., Trotter, 932 So.2d at 1050 (“[T]he question of evidentia-ry weight is reserved to the circuit court, and this Court does not reweigh the evidence .... The determination of the credibility of witnesses also is reserved to the trial court.”); Bottoson v. State, 813 So.2d 31, 33 n. 3 (Fla.2002) (“We give deference to the trial court’s credibility evaluation of Dr. Pritchard’s and Dr. Dee’s opinions.”); Porter v. State, 788 So.2d 917, 923 (Fla.2001) (“We recognize and honor the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact.”). In this case, the trial court clearly found that Dr. McClain’s testimony was not as credible as the testimony presented by the other expert witnesses. After all conflicts in the evidence and all reasonable inferences have been resolved in favor of the trial court’s decision, there is competent, substantial evidence to support this decision.

As the record provides competent, substantial evidence supporting the trial court’s findings, we affirm the decision that Brown is not mentally retarded.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, CANTERO, and BELL, JJ„ concur.

QUINCE, J., recused.

      . The motion also requested the trial court to declare a provision of section 921.137, Florida Statutes (2001), unconstitutional since section (8) of the statute stated that it was not to be applicable to defendants who were sentenced to death prior to the effective date of the act. Following Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), we adopted Florida Rule of Criminal Procedure 3.203, which adopted the statutory definition of mental retardation and recognized that Atkins applies to defendants currently on death row. See Phillips v. State, 894 So.2d 28, 39-40 (Fla.2004) (holding that one may file an Atkins claim under rule 3.203 even if section 921.137 did not exist at time of sentencing). This renders moot the claim that the statute is unconstitutional. Moreover, the trial court determined Brown's claim of mental retardation using the statutory definition.

      . Likewise, section 921.137 defines mental retardation as follows:
      [T]he term “mental retardation” means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. The term “significantly subaverage general intellectual functioning,” for the purpose of this section, means performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Agency for Persons with Disabilities. The term “adaptive behavior,” for the purpose of this definition, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community. The Agency for Persons with Disabilities shall adopt rules to specify the standardized intelligence tests as provided in this subsection.
      § 921.137(1), Fla. Stat. (2006) (emphasis added).