author: NABERS, Chief Justice.

text:
    EB INVESTMENTS, L.L.C. v. ATLANTIS DEVELOPMENT, INC., et al.
    1040410.
    Supreme Court of Alabama.
    Nov. 23, 2005.

      Robert F. Vargo, Huntsville, for appellant.
    F. Page Gamble, Birmingham, for appel-lees.
   NABERS, Chief Justice.

EB Investments, L.L.C. (“EB”), appeals from the order of the Madison Circuit Court dismissing with prejudice its action against Atlantis Development, Inc., Javad Ajdarodini, and Bobby Ajdarodini. We affirm in part, reverse in part, and remand.

I. Facts and Procedure

The facts and procedural history of this case are complicated. At the heart of this dispute are two parcels of real property owned by Atlantis Development (“the property”), which are subject to multiple mortgages that have been assigned through a series of transactions to EB.

On September 20, 1996, Atlantis Development acquired the property by warranty deed. On the same day, Atlantis Development, Javad Ajdarodini, and Bobby Ajdar-odini (hereinafter collectively referred to as “Atlantis”) entered into a mortgage and security agreement with Jacobs Bank pursuant to which the property secured a loan of $28,000. Atlantis later executed two additional mortgages on the property with Jacobs Bank to secure loans in the amounts of $148,000 and $12,027.25, creating a total indebtedness secured by the property in the amount of $188,027.25. Subsequently, Jacobs Bank merged with Regions Bank.

On or about March 9, 1997, Atlantis received notice that a previous owner of the property intended to exercise a statutory right of redemption. Until that time, Atlantis had been unaware of the deficiencies in the chain of title of the property, i.e., that the previous owner of the property had purchased it at a foreclosure sale. The statutory right of redemption that allegedly existed was eventually assigned to another entity, John Lary, L.L.C., which sued Atlantis Development and others in the Madison Circuit Court in a separate action, CV-97-563 (“the Lary action”), on March 21, 1997, for the right to redeem the property. The right-of-redemption issue in the Lary action remained pending until November 4, 2004, when the circuit court entered a summary judgment for Atlantis Development and the other defendants in that action and concluded that John Lary, L.L.C., had no right to redeem the property.

Though the Lary action is not before this Court in this appeal, we must discuss it because rulings in that case affect the present dispute between Atlantis and EB. Although we do not have the full record of the Lary action before us, a substantial portion of it, including the rulings pertinent to this dispute, is contained in the record of the instant case.

On July 2, 2003, Regions Bank assigned the three mortgages Atlantis had originally executed with Jacobs Bank to Mississippi Valley Title Insurance Company, who in turn on December 1, 2003, assigned the mortgages to Aquarius Investments, Inc. Soon thereafter, Aquarius Investments, finding Atlantis in default, sought to foreclose on the property.

On December 29, 2003, after three weeks’ notice by publication in the Madison County Record, a newspaper of general circulation published in Madison County, Aquarius Investments conducted a public foreclosure sale, a remedy provided under the terms of the mortgages; at the sale, Aquarius Investments purported to purchase the property for a credit against the indebtedness secured by the senior mortgage. On December 30, 2003, Aquarius Investments assigned the two junior mortgages on the property to EB, who, in turn, having acquired the next priority mortgage against the property, exercised its statutory right of redemption and obtained title to the property. On that same day, EB notified Atlantis that it had obtained title to the property and gave Atlantis 10 days to vacate the premises.

On January 5, 2004, Atlantis acknowledged receipt of EB’s notice to vacate; Atlantis, however, did not vacate. Instead, on January 8, 2004, Atlantis filed a motion for a temporary retraining order (“TRO”) against EB with the circuit court in the Lary action. At that point, EB had not sued Atlantis. Furthermore, EB was never named as a party in the Lary action. The circuit court in the Lary action granted Atlantis’s motion and purported to retroactively void by a TRO the foreclosure sale that had occurred on December 29, 2003, and, as well, declared EB’s vacation notice to Atlantis void.

On January 21, 2004, EB filed in the Madison Circuit Court its initial complaint for ejectment against Atlantis. On that same day, the circuit court in the Lary action issued a preliminary injunction against EB.

In issuing the preliminary injunction, the circuit court in the Lary action once again declared the foreclosure sale and the vacation notice void. The court concluded:

“4. The December 29, 2003 foreclosure sale regarding Lot 2, Block 2, Pavilion Phase 1, and Lot 12, Block 1, Pavilion Phase 2, and Notice to Vacate delivered December 31, 2003, should be deemed void due to:
o “(a) Any transactions regarding the real property involved in this litigation was [sic] strictly prohibited by this court during the August 19,1998, hearing.[ ]
“(b) Notice was not provided to mov-ants regarding the foreclosure sale as required by Section 6-8-66[,] Ala.Code (1975), nor did movants receive any form of actual notice.
“(c) The mortgage under which the foreclosure sale occurred, should this court later determine the 1997 redemption by John Lary, L.L.C. was valid, could itself be deemed null and void. “5. Said sale should be deemed void due to the doctrine of unclean hands, since if allegations in movant’s Cross-Claim against [Ray] McKee[ ] be proven would allow McKee to take advantage of his wrongful conduct in this transaction, in allowing the foreclosure to stand.
“Accordingly it is hereby ORDERED, ADJUDGED AND DECREED,
“A. That the foreclosure sale which occurred on December 29, 2003, is void and of no effect; and
“B. That the vacation notice dated December 30, 2003 is also void and of no effect, and that movants are not required to comply with such notice; and “C. That this Court acknowledges jurisdiction, pursuant to Rule 65(d)(2)[, Ala.R.Civ.P.,] of not only the parties to this action, [the Lary action,] but also [EB] Investments, L.L.C., as being ‘in active participation or concert with’ Defendant Ray McKee, and are, along with the parties to this action hereby enjoined from conducting any further transactions regarding the real property subject to this litigation, to include sending of vacation notices, ejectment proceedings, transfer of interests, foreclosure or any other actions until there has been a final adjudication in this matter as to the rights of the parties, status of redemption and other related matters.”

The record of the case before us indicates that Ray McKee, a defendant in the Lary action, was the registered agent for EB and Aquarius Investments. Those entities appear to have been controlled by McKee’s wife — apparently the ground on which the circuit court in the Lary action based its authority to include EB in the scope of its order.

On January 30, 2004, EB, along with Aquarius Investments, filed a special appearance in the Lary action in order to challenge the TRO and the preliminary injunction the circuit court had entered in that action. EB moved to declare both orders void under Rule 60(b)(4) and (6), Ala.R.Civ.P. While its Rule 60 motion was pending, EB petitioned the Alabama Court of Civil Appeals for a writ of mandamus; that petition was subsequently transferred to this Court. In its petition, EB asked this Court to direct the circuit court in the Lary action to rule on and grant its Rule 60 motion. On April 15, 2004, this Court denied the petition, without an opinion. Ex parte EB Invs., L.L.C. (No. 1030922).

Following this Court’s denial of its petition for a writ of mandamus, EB once again attempted to foreclose on the property occupied by Atlantis. In its TRO and preliminary injunction purporting to void the first foreclosure sale, the circuit court in the Lary action had concluded that Atlantis had not been given sufficient notice of the foreclosure sale under § 6-8-66, Ala.Code 1975; thus, before the second foreclosure sale, EB served Atlantis via certified mail as well as through three weeks’ publication notice. On June 21, 2004, following the three-week notice period, EB conducted another public foreclosure sale at which it purported to purchase the property for a credit against the indebtedness owed by Atlantis. On that same day, EB notified Atlantis that it had foreclosed on the property and once again gave Atlantis 10 days to vacate the premises.

On July 2, 2004, the circuit court issued a new order in the Lary action in which it acknowledged that EB had conducted a foreclosure sale on June 21, 2004. The circuit court concluded that that sale was in direct violation of the preliminary injunction it had entered on January 21, 2004, and the court declared the sale and resulting vacation notice void. Furthermore, the circuit court ordered EB to appear and show cause why it should not be found in contempt of court.

On August 5, 2004, Atlantis filed a motion to dismiss this action. On August 19, 2004, EB filed its second amended complaint, adding a count styled “Relief from Judgment or Order,” asserting a collateral attack on the preliminary injunction issued against EB in the Lary action. On September 15, 2004, Atlantis moved to dismiss EB’s second amended complaint, which we have construed as a motion for failure to state a claim under Rule 12(b)(6), Ala. R.Civ.P.

On October 1, 2004, the circuit court in this case granted Atlantis’s motion to dismiss all counts with prejudice. On October 29, 2004, EB moved the circuit court to alter, amend, or vacate its judgment under Rule 59(e), Ala.R.Civ.P. On November 12, 2004, following the resolution of the right-of-redemption issue in the Lary action by the summary judgment entered on November 4, 2004, EB supplemented its motion to alter, amend, or vacate the judgment. On November 17, 2004, the circuit court denied EB’s motion, and this appeal followed.

II. Standard of Review

The standard of review applicable to an order granting a motion to dismiss is well established:

“ ‘The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.’ ”

Beckerle v. Moore, 909 So.2d 185, 187 (Ala.2005) (alterations added in Beckerle (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993)).

Furthermore, when “[t]he trial court dismisses] ... claims, based on the doctrine of res judicata; the application of that doctrine is a question of law.” Walker v. Blackwell, 800 So.2d 582, 587 (Ala.2001). “ ‘This Court reviews questions of law de novo.’ ” Alabama State Bar v. Quinn, 926 So.2d 1018, 1023 (Ala.2005) (quoting Tipler v. Alabama State Bar, 866 So.2d 1126, 1137 (Ala.2003)).

III. Analysis

We begin our analysis with the allegations in EB’s complaint. Count 1 of the complaint, an action in ejectment, sought to recover possession of the property. In an action in ejectment, “the complaint is sufficient if it alleges that the plaintiff was possessed of the premises or has the legal title thereto, properly designating or describing them, and that the defendant entered thereupon and unlawfully withholds and detains the same.” § 6-6-280(b), Ala. Code 1975.

In its complaint, EB asserts that it is the legal owner of the property, as a result of its foreclosure following the assignment of the mortgage from Aquarius Investments. Moreover, to the extent that the validity of that foreclosure sale is in doubt, EB asserts that it is the legal owner of the property as a result of its status as mortgagee. Additionally, EB adequately describes the property and alleges that Atlantis has wrongfully refused to vacate the premises.

Count 2 of the complaint claims money damages based on an alleged breach of contract. EB alleges that it has acquired, by assignment, the right to payments on the promissory notes executed by Atlantis. EB asserts that Atlantis has defaulted on those promissory notes, and it seeks a judgment for the balance owed on the notes.

Finally, count 3 of the complaint, styled “Relief from Judgment or Order,” seeks to challenge, by collateral attack under Rule 60(b), Ala.R.Civ.P., the preliminary injunction issued in the Lary action on the ground that the injunction is void. Although the typical approach for attacking a judgment under Rule 60(b) is by filing a motion in the court that rendered the judgment, which EB had already done, the rule does provide for collateral attack on a judgment by filing an independent action. Under Rule 60(b), Ala.R.Civ.P., however, the grounds for relief on collateral attack apply only to a “final judgment, order, or proceeding.” “Interlocutory orders and judgments are, therefore, not brought within the restrictive provisions of Rule 60(b), Alabama Rules of Civil Procedure, which provides for relief from final judgments.” Hallman v. Marion Corp., 411 So.2d 130, 132 (Ala.1982). As we discuss below, the preliminary injunction issued in the Lary action is not a final judgment or order. Consequently, count 3 of EB’s complaint does not state a claim upon which relief can be granted, and we affirm the circuit court’s dismissal as to this count.

As to its claims for ejectment and alleging breach of contract, EB’s complaint states claims upon which relief can be granted. If this case involved a typical motion to dismiss, it would be an easy case to resolve. This case cannot be decided, however, without considering the effect of the preliminary injunction issued in the Lary action.

While this Court is compelled to consider the effect of the preliminary injunction issued in the Lary action, we stress that the validity of that order is not properly before this Court; thus we express no opinion on that issue. We simply note that under Rule 4(a)(1)(A), Ala.R.App.P., EB had an appeal as of right, which it did not exercise, from “any interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction, or refusing to dissolve or to modify an injunction.” Therefore, we take the preliminary injunction issued in the Lary action as a fact of this case. With that settled, we focus on the order of the circuit court below dismissing EB’s complaint with prejudice.

In granting Atlantis’s motion to dismiss, the circuit court issued the following order:

“Atlantis Development Co., Inc. [sic], Javad Ajdarodini and Bobby Ajdarodini, designated Defendants in the above-referenced matter, having filed a Motion to Dismiss and after briefing and oral argument by both sides this court finds as follows:
“1. A Preliminary Injunction was entered by Honorable Bobby Aderholt on January 21, 2004, in CV-97-563, pending in Madison County Circuit Court, voiding a foreclosure sale of December 29, 2003 by Aquarius Investments, Inc., who subsequently assigned, on December 30, 2003, to Plaintiff, EB Investments, LLC, regarding the same two lots the subject of the action before this Court.
“2. Further, on or about March 16, 2004, [EB] filed a Petition for Writ of Mandamus with the Court of Civil Appeals, the grounds being that the Temporary Restraining Order and Preliminary Injunction were void. The writ of mandamus was transferred to the Alabama Supreme Court and assigned Case No. 1030922. The Supreme Court, on April 15, 2004, denied [EB’s] Petition for Writ of Mandamus, without'opinion.
“4 [sic]. A subsequent foreclosure was initiated by [EB], and a foreclosure sale occurred on June 21, 2004.
“5. On July 2, 2004, Judge Aderholt entered an order reaffirming the prior preliminary injunction and ruled, based on the same grounds, that the June 21, 2004, foreclosure was also void.
“6. A collateral attack is only proper if a judgment is void. [EB] has already exhausted its appellate remedy by seeking a Writ of Mandamus based on the grounds that the Preliminary Injunction was void, which writ was denied by the Supreme Court. It is
“ORDERED, ADJUDGED AND DECREED, that this action is due to be dismissed, with prejudice, based on the doctrine of res judicata, with costs taxed to [EB].”

(Emphasis added.)

The plain text of the circuit court’s order dismissing EB’s action with prejudice states that it granted the relief “based on the doctrine of res judicata.” The text of the order also indicates that the court determined that EB’s action could not proceed while the preliminary injunction issued against it in the Lary action was in effect. The circuit court’s order is not as clear, however, on precisely how the doctrine of res judicata relates to the preliminary injunction issued in the Lary action in order to support a dismissal of EB’s action with prejudice.

The elements of the doctrine of res judicata are well-settled:

“ ‘ “(1) [T]he question or fact must have been litigated and determined by a court of competent jurisdiction; (2) the final judgment must have been rendered on the merits; (3) the parties, or those in privity with them, must be of such a relationship to the parties in the subsequent action as to entitle them to the benefits and/or burdens of the prior litigation; (4) the same cause of action must be involved in both lawsuits.” ’ ”

Morris v. Cornerstone Propane Partners, L.P., 884 So.2d 796, 797 (Ala.2003) (quoting West v. City of Mobile, 689 So.2d 14, 16 (Ala.1997), quoting in turn Hughes v. Martin, 533 So.2d 188, 190 (Ala.1988)). In this case, there were only two rulings on which the circuit court could have relied in dismissing EB’s ejectment and breach-of-contract claims on the basis of the doctrine of res judicata — this Court’s denial of EB’s petition for the writ of mandamus challenging the preliminary injunction in the Lary action and the preliminary injunction itself. Because the doctrine of res judicata is inapplicable to either of these rulings, we must reverse.

Alabama law is clear: “ ![T]he denial [of a petition for a writ of mandamus] does not operate as a binding decision on the merits.’ ” Ex parte Shelton, 814 So.2d 251, 255 (Ala.2001) (quoting R.E. Grills, Inc. v. Davison, 641 So.2d 225, 229 (Ala.1994)). “[B]eeause of the extraordinary nature of a writ of mandamus, the denial of relief by mandamus does not have res judicata effect.” Cutler v. Orkin Exterminating Co., 770 So.2d 67, 69 (Ala.2000); see also Bedsole v. Goodloe, 912 So.2d 508, 516 n. 4 (Ala.2005) (noting “that ‘without ordering an answer and briefs and without issuing an opinion, [the denial of a petition for the writ of mandamus] cannot have res judicata effect on subsequent proceedings in light of the extraordinary nature of the writ of mandamus’ ” (quoting R.E. Grills, 641 So.2d at 229) (alterations in original)). Therefore, to the extent that the circuit court’s dismissal of EB’s action against Atlantis rested on its conclusion that our denial of EB’s mandamus petition in the Lary action barred EB’s action against Atlantis in this case, it cannot stand.

The only other judgment that could arguably preclude EB’s complaint in this case is the preliminary injunction issued in the Lary action. That injunction, however, cannot bar EB’s action in this case under the doctrine of res judicata because it is neither a final judgment nor was it rendered on the merits of EB’s ejectment and breach-of-contract claims. It is well established that when this Court reviews a preliminary injunction, “we are not reviewing a final judgment on a hearing of the case on its merits.” Howell Pipeline Co. v. Terra Res., Inc., 454 So.2d 1353, 1358 (Ala.1984).

Although the circuit court, in issuing the preliminary injunction in the Lary action, purported to void the foreclosure sale conducted by Aquarius Investments, it did not void EB’s acquisition of the mortgages Atlantis executed on the property. On its face, the preliminary injunction enjoins EB “from conducting any further transactions regarding the real property ... until there has been a final adjudication in [the Lary action] as to the rights of the parties, status of redemption and other related matters.” Thus, by its own terms, the preliminary injunction does not resolve EB’s claims against Atlantis; rather, it seeks to suspend EB’s actions regarding the property until the issues in the Lary action are resolved.

The principle that a mortgagee is entitled to possession of the mortgaged premises following default on the mortgage has been firmly established in Alabama since as early as Coker v. Pearsall, 6 Ala. 542 (1844). Regardless of the effect of the preliminary injunction in the Lary action on the prior foreclosure sale, EB, as mortgagee, has never had its day in court on its right to seek possession of the property and its claim for breach-of-contract damages based on Atlantis’s default on the mortgage. Therefore, the preliminary injunction cannot support the circuit court’s conclusion that EB’s ejectment and breach-of-contract claims in this case are barred by the doctrine of res judicata.

In reaching our conclusion, we have focused on the plain language of the circuit court’s order stating that EB’s action should be dismissed “based on the doctrine of res judicata.” We conclude that this dismissal results from an erroneous application of that legal doctrine. Therefore, we reverse the circuit court’s order dismissing EB’s claims for ejectment and alleging breach of contract.

We understand the predicament the circuit court faced in this case and its desire to resolve this dispute while the Lary action was pending in its own courthouse. In our system, “where two courts have equal and concurrent jurisdiction, the court that first commences the exercise of its jurisdiction in a matter has the preference and is not to be obstructed in the legitimate exercise of its powers by a court of coordinate jurisdiction.” Ex parte State ex rel. Ussery, 285 Ala. 279, 281, 231 So.2d 314, 315 (1970), quoted with approval in Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 481 (Ala.2003). We conclude, however, that the proper remedy in this case, in light of all the circumstances, was not to dismiss EB’s action with prejudice on res judicata grounds. In reaching this decision, we express no opinion on the validity of EB’s claims. Instead, we affirm the principle that every litigant deserves his day in court.

TV. Conclusion

The preliminary injunction issued in the Lary action is not a final judgment or order, and the circuit court’s order insofar as it dismisses EB’s collateral attack on that injunction is affirmed. Because we determine that the circuit court erroneously applied the doctrine of res judicata in granting Atlantis’s motion to dismiss EB’s claims for ejectment and alleging breach of contract, we reverse its order of dismissal as to those claims and remand the case for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

LYONS, WOODALL, SMITH, and PARKER, JJ., concur.

      . Evidently, this ruling disposing of the right-of-redemption issue in the Lary action did not conclude that action. In its brief to this Court, EB states that "[t]he Lary [ajction has been pending since 1997 without any apparent prospect of resolution.” EB’s brief at 3.

      . Although the Lary action and EB's action against Atlantis were both litigated in the Madison Circuit Court, the cases were assigned to different circuit judges.

      . EB asserts that there is no record of a written order resulting from this hearing.

      . Based on the record and the briefs in this case, it appears that Ray McKee, an attorney, was hired by Atlantis to close the real-estate transaction involving the property in this case. Evidently, one of the allegations in the LaL7 action is that McKee failed to inform Atlantis ** “ outstanding right of redemption existed with respect to the property.

      . The record before us does not indicate if the circuit court in the Lary action ever ruled on EB's Rule 60 motion.

      . At some point after the foreclosure sale conducted by Aquarius Investments, that entity was dissolved. On May 25, 2004, all of the shareholders of Aquarius Investments at the time of its dissolution assigned to EB their interests in the senior mortgage on the property (that mortgage securing the $28,000 loan to Atlantis at the time it purchased the property).

      .Ala.Code 1975, § 6-8-66, requires:
      "The publisher or manager of the newspaper must send to the officer or person making the advertisement a copy of each issue of the paper containing it, and a copy of such paper must be sent by mail to the person to whom the notice is directed, if his post office address can be ascertained, by the officer or person making the advertisement, such copy to be furnished by the publisher or manager of the newspaper in addition to the copy of each issue required in this section to be furnished.”
      (Emphasis added.)

      . After obtaining new trial counsel, EB filed an amended complaint in the circuit court on July 2, 2004, in which it added a breach-of-contract claim based on Atlantis's default on the promissory notes secured by the property.

      . Atlantis's motion can also be construed as asserting the affirmative defense of the doctrine of res judicata. For the reasons discussed below, we conclude that that doctrine is inapplicable to this case.

      . With its motion to dismiss, Atlantis attached to its filings the preliminary injunction issued in the Lary action and the Lary court’s order reaffirming the preliminary injunction. If, on a motion to dismiss for failure to state a claim, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56[, Ala.R.Civ.P.,]....” Rule 12(b), Ala. R.Civ.P. "When a party refers to another proceeding or judgment of a court in his pleading before that same court, the court on motion to dismiss may take judicial notice of the entire proceeding.” Lesley v. City of Montgomery, 485 So.2d 1088, 1093 (Ala.1986). Therefore, because the orders issued in the Lary action are matters outside the pleadings in this case, we treat Atlantis’s motion to dismiss as a motion for a summary judgment.

      . Atlantis asserts that the circuit court’s order in this case was not based solely on the conclusion that EB’s claims were barred by the doctrine of res judicata. It argues that the circuit court concluded that a collateral attack is proper only when a judgment is void. Atlantis argues that the court made an independent determination that the preliminary injunction issued in the Lary action was valid, and, thus, EB’s entire complaint was an impermissible collateral attack on that judgment. This argument misses the point that neither the preliminary injunction nor any other order in the Lary action is a final judgment on the merits of the claims asserted in counts 1 and 2 of EB's complaint.


source: Caselaw Access Project

author: PITTMAN, Judge. CRAWLEY, Presiding Judge, MURDOCK, Judge,

license: Public Domain

text:
    Theodore L. McMORROUGH v. Patricia Y. McMORROUGH.
    2040144.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2005.

      Daniel E. Boone, Florence, for appellant.
    Lindsey Mussleman Davis of Holt, Mus-sleman, Holt & Morgan, Florence, for ap-pellee.
   PITTMAN, Judge.

Theodore L. McMorrough (“the former husband”) appeals from a judgment of the Lauderdale Circuit Court Ending him in contempt for failing to follow certain provisions of the trial court’s judgment divorcing him from Patricia Y. McMorrough (“the former wife”).

After 26 years of marriage, the parties were divorced on January 17, 2003. The divorce judgment awarded the former wife the marital residence and ordered her to pay the outstanding indebtedness on that property. The former husband was ordered to pay $750 in monthly child support and $1,000 in monthly periodic alimony; additionally, the former husband was ordered to pay the former wife a lump sum of $90,000 as alimony in gross. The former husband appealed, asserting errors in the trial court’s division of property, awards of alimony and attorney fees, and entry of the divorce judgment based on the former husband’s adultery; however, this court affirmed the trial court’s judgment without opinion on November 21, 2003. See McMorrough v. McMorrough, (No. 2020631) 898 So.2d 926 (Ala.Civ.App.2003) (table).

On January 20, 2004, the former wife filed a motion for a Ending of contempt in which she asserted that the former husband had failed to make the court-ordered periodic-alimony payments and had failed to pay her the $90,000 alimony-in-gross award. The former husband filed an answer in which he denied being in contempt of court and asserted that he was unable to make those court-ordered payments to the former wife.

The trial court conducted an ore tenus proceeding on November 8, 2004, and entered a judgment the same day. In that judgment, the trial court found the former husband to be in contempt as to each occasion that he had failed to make his monthly alimony payment (a total of 31 times) and also found him in contempt of court for failing to pay the alimony in gross set forth in the divorce judgment. The trial court sentenced the former husband to 5 days of incarceration for each of the 32 separate acts of contempt, or a total amount of 160 days; that sentence was suspended for two years contingent upon the former husband’s compliance with the terms of the divorce judgment and service of 30 of the 160 days in the Lauderdale County Work Release Center. The former husband filed a notice of appeal the day after the contempt judgment was entered.

The former husband challenges the trial court’s judgment holding him in contempt of court and asserts that he is unable to pay the court-ordered amounts to the former wife; he challenges only the liability aspect of the contempt judgment, not the sentence. When a trial court bases its decision on ore tenus evidence, its judgment is presumed to be correct and will not be reversed on appeal absent a finding of a plain and palpable abuse of discretion. See Somers v. McCoy, 111 So.2d 141, 142 (Ala.Civ.App.2000), and Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995). The determination of whether a party is in contempt of court rests entirely within the sound discretion of the trial court, and, “ ‘absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm.’ ” Gordon v. Gordon, 804 So.2d 241, 243 (Ala.Civ.App.2001) (quoting Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994)); see also Stamm v. Stamm, 922 So.2d 920 (Ala.Civ.App.2004).

Moreover, the purpose of civil contempt is to effectuate compliance with court orders, not to punish the contemnor. Watts v. Watts, 706 So.2d 749, 751 (Ala.Civ.App.1997). The former husband admitted that he had never paid more than $250 per month on the court-ordered $l,000-per-month periodic alimony obligation before stopping payments altogether. Additionally, he admitted that he had been able to pay his living expenses in Florida throughout the time he was delinquent in his alimony payments.

The former husband’s sole argument is that the former wife failed to establish his ability to pay the court-ordered payments, and, therefore, he insists that the trial court could not find him in contempt. He relies primarily on Thomas v. Thomas, 406 So.2d 939 (Ala.Civ.App.1981), and Watts v. Watts, supra, to support his contention that his inability to pay prevented the trial court from holding him in contempt of court. The former husband’s reliance on those two cases is misplaced.

In Thomas, this court reversed a trial court’s judgment that found a nonpaying spouse in contempt. In pertinent part, we held that when a delinquent payor presents evidence of an inability to pay as a defense to a charge of contempt, the burden of proof falls upon the payee to show “beyond a reasonable doubt” that the payor can pay. Thomas, 406 So.2d at 942. However, the facts in this case indicate that the former wife did present evidence from which the trial court could have concluded that the former husband was contumaciously refusing to pay the court-ordered periodic-alimony and alimony-in-gross awards. The parties’ divorce judgment, offered into evidence by the former wife without objection by the former husband, contains the following language:

“The court finds that the [former] husband has fraudulently disposed of marital assets over the past two years in an effort to avoid an equitable division of property with the [former] wife.”

Although the former husband challenged the correctness of that portion of the divorce judgment, which was the basis of the alimony-in-gross award, in the previous appeal, this court affirmed the divorce judgment as to that issue. “ ‘Under the doctrine of the “law of the case,” whatever is once established between the same parties in the same ease continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.’ ” Stephens v. Stephens, 699 So.2d 194, 196 (Ala.Civ.App.1997) (quoting Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987)). See also Mims v. Mims, 472 So.2d 1063 (Ala.Civ.App.1985) (trial court could incarcerate former husband for consistently failing to pay monthly alimony based, in part, on the previous history of the case). We conclude that the factual finding contained in the divorce judgment and the law-of-the-case doctrine support the trial court’s determination that the former husband was not unable to pay the court-ordered alimony but was merely unwilling to pay that alimony to the former wife.

Watts, the second case cited by the former husband, actually supports the trial court’s finding the former husband in contempt and ordering the incarceration, albeit work-release, of the former husband in this case. In Watts, this court upheld a trial court’s determination that a nonpaying spouse was in contempt of court and was to be incarcerated until his arrearage was satisfied. This court concluded that the trial court’s findings of fact based on conflicting testimony and evidence in that case as to obligor’s ability to pay was sufficient to support the judgment. Watts, 706 So.2d at 751-52. The facts are not dissimilar in that the divorce judgment in this case included a factual finding that the former husband had secreted marital assets in order to prevent an equitable property division upon divorce; the former husband’s disposal of assets prompted the trial court’s alimony-in-gross award. Additionally, the former wife, who had not worked outside the home during the parties’ 26-year marriage, was awarded monthly periodic alimony in the amount of $1,000 in the divorce judgment.

Although the divorce judgment did not specifically note that the former husband had become unemployed shortly before the divorce trial, the testimony in the contempt proceeding indicates that the former husband stopped working as an airplane mechanic (his former occupation) sometime in late 2002 just before the divorce judgment was entered. The former husband testified that following his relocation to Florida after the parties’ divorce, he had worked only occasionally as a building subcontractor in order to bring his child-support obligation current by the time of the contempt hearing. He testified that he had paid only $250 each month toward the $l,000~per-month periodic-alimony obligation for the first 17 months following the divorce and that he had paid nothing to satisfy the periodic-alimony obligation after that time. The former husband stated that after he completed his last subcontracting job seven months before the contempt hearing, he had been unable to find other similar work opportunities. Although the former husband also testified that he was in the process of preparing to take the Florida insurance-board examination in order to open an insurance business there, the trial court also heard the former husband testify that he had received a lawsuit settlement in the amount of at least $300,000, that he had completely spent that money, and that he had paid the former wife no portion of that settlement. Additionally, the former husband’s testimony established that he had been able to meet his personal monthly obligations during the time that he had lived in Florida, which corresponded to the same time that he claimed to have been unable to make monthly alimony payments due to an inability to pay.

Taken in its entirety, the former husband’s testimony could be considered by the trial court as evidence of underemployment and/or an ability to pay for purposes of determining whether his noncompliance with the divorce judgment was contumacious conduct. Although the former husband claimed an inability to pay, he offered no substantive evidence of that inability such that the burden referenced by Judge Crawley in his dissent would have shifted to the former wife. As noted in Watts, “This court is not allowed to substitute its judgment for that of the trial court when the trial court’s decision is supported by reasonable inferences that can be derived from the ore tenus evidence presented.” 706 So.2d at 751. Under the circumstances of this case, we conclude that the trial court did not abuse its discretion in finding the former husband in contempt and in ordering his incarceration. Based on the evidence presented at trial, we conclude that the trial court could have reasonably determined that the former husband had access to, or could earn, money with which to purge himself of contempt.

Alabama law is well established that a trial court has the power to enforce its judgment and to enter such orders as may be necessary to render a judgment effective. See, e.g., Atchison v. Atchison, 646 So.2d 72, 73 (Ala.Civ.App.1994), and Patchett v. Patchett, 469 So.2d 642, 644 (Ala.Civ.App.1985). The fact that the former husband was ordered to be incarcerated in a local work-release facility (and to have his wages earned there divided between the former wife, the court, and himself) indicates that the trial court was apprised as to just how obstreperous the former husband had been. See, e.g., Mims, supra. The sentence seems particularly well-crafted to encourage the former husband to fulfill his court-ordered obligations in the future, on pain of true incarceration. All of those factors militate in favor of this court’s affirmance of the contempt judgment.

Based on the foregoing facts and authorities, the trial court’s judgment is due to be affirmed. In addition, the former wife’s request for an appellate attorney fee is granted in the amount of $1,000.

AFFIRMED.

THOMPSON, J., concurs.

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

CRAWLEY, P.J., dissents, with writing, which MURDOCK, J., joins.

MURDOCK, J., dissents, with writing.

CRAWLEY, Presiding Judge,

dissenting.

I dissent from the affirmance of the trial court’s finding that the former husband is in contempt because the former wife failed to establish beyond a reasonable doubt that the former husband had the present ability to pay.

“The standard of review in a civil contempt case was clarified by this court in Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994), as follows:
“ ‘[Wjhether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm.’ ”

Boykin v. Boykin, 659 So.2d 664, 666 (Ala.Civ.App.1995). An inability to pay is an affirmative defense to a charge of contempt. Thomas v. Thomas, 406 So.2d 939, 942 (Ala.Civ.App.1981). When the defendant presents evidence of an inability to pay, then the burden of production shifts to the complainant; the complainant must prove beyond a reasonable doubt that the defendant has the ability to pay. Watts v. Watts, 706 So.2d 749, 751 (Ala.Civ.App.1997).

The main opinion states that “[a]lthough the former husband claimed an inability to pay, he offered no substantive evidence of that inability” and, therefore, the burden to show an ability to pay beyond a reasonable doubt did not shift to the former wife. 930 So.2d at 515. That the former husband produced evidence of his inability to pay is irrefragable. The former husband’s testimony regarding his inability to pay is substantive evidence that is sufficient to shift the burden to the former wife. See Pardue v. Pardue, So.2d 857 (Ala.Civ.App.2005); and King v. King, 620 So.2d 56 (Ala.Civ.App.1993).

The former husband testified that he is currently unemployed. He testified that he had been employed but had been laid off. The former husband testified that he was willing to pay but that he simply did not have the ability to do so. The former husband also testified that while he had been unable to pay the entire amount of his obligations when he was employed, he had, nonetheless, paid what he could afford.

The former wife offered no proof to the trial court of the former husband’s ability to pay. The only proof adduced at trial of the former husband’s ability to pay was the prior divorce judgment of which the trial court took judicial notice. The divorce judgment provides:

“11. Alimony in Gross: The court finds that the [former] husband has fraudulently disposed of marital assets over the past two years in an effort to avoid an equitable division of the property with the [former] wife. Therefore, the [former] husband shall pay to the [former] wife the lump sum of Ninety Thousand Dollars ($90,000), as alimony in gross to the [former] wife. The amount shall be paid within ninety (90) days after this [judgment].”

Arguably, this finding supports the inference that the former husband does not, in fact, have the ability to pay. The trial court found that the former husband “disposed” of the marital assets. Even if the court could impute to the former husband income for the purposes of calculating a distribution of assets, it could not rely on those imputed assets to jail the former husband in a collateral proceeding for contumacious nonpayment because, obviously, the former husband does not have the money; otherwise, there would be no need to impute income to the former husband.

Even if the trial court were to use the finding in the divorce proceeding to demonstrate that the former husband has the ability to pay, it is still insufficient to meet the former wife’s burden of proof. The applicable burden of proof is beyond a reasonable doubt. The finding that the former husband fraudulently disposed of marital assets was made under a preponderance-of-the-evidence standard. Cf. Morrison v. State, 267 Ala. 1, 2, 100 So.2d 744, 745 (1957)(citing the differences in the burden of proof as a reason that “1 “it is generally held that a judgment or opinion in a civil action, or the record of proceedings therein, is not admissible in a subsequent criminal prosecution [employing the beyond-a-reasonable-doubt standard] involving the same matter” ’ ”) (quoting Helms v. State 35 Ala.App. 187, 188, 45 So.2d 170, 171 (1950), quoting in turn 22 C.J.S. Criminal Law § 50); and Loper v. State, 469 So.2d 707, 710-11 (Ala.Crim.App.1985)(“It is hornbook law in Alabama that a judgment in a civil case is not conclusive as res judicata in a criminal case, or vice versa, there being ... different degrees of proof ... required.”).

Regardless, the former wife ultimately failed to adduce sufficient evidence showing beyond a reasonable doubt that the former husband had the ability to pay. Indeed, the only evidence regarding the former husband’s ability to pay was the divorce judgment of which the trial court took judicial notice. This is insufficient to prove beyond a reasonable doubt that the former husband had the ability to pay.

I would reverse the contempt judgment and remand the case to the trial court; therefore, I must dissent.

MURDOCK, J., concurs.

MURDOCK, Judge,

dissenting.

I join Presiding Judge Crawley’s dissenting opinion.

I write separately to note further that, in my opinion, the principle of the law of the case relied upon in the main opinion is inapplicable to the disposition of the factual issues that are presented in the present case.

      . The former wife also contended that the former husband had failed to make his monthly child-support payments, but the parties stipulated at trial that the former husband was current in those payments by the time of trial.


author: STUART, Justice. PARKER, Justice

text:
    Ex parte Theodore L. McMORROUGH. (In re Theodore L. McMorrough v. Patricia Y. McMorrough).
    1041848.
    Supreme Court of Alabama.
    Nov. 18, 2005.
    Daniel E. Boone, Florence, for petitioner.
   STUART, Justice.

WRIT DENIED. NO OPINION.

LYONS, HARWOOD, SMITH, and BOLIN, JJ., concur.

NABERS, C.J., and SEE, WOODALL, and PARKER, JJ., dissent.

PARKER, Justice

(dissenting).

Our judicial system could not function effectively without the power to enforce court orders, and an essential means of such enforcement is the power to punish for contempt those who flout court orders.

However, the contempt power is also capable of abuse. Because it is the court that punishes offenses directed at itself, a person who defends against a contempt citation must do so before one person who plays the roles of judge, jury, victim, and prosecutor all in one. It is vital, therefore, to ensure that individual liberties are carefully protected against this necessary but potentially dangerous power.

Protection of individual liberties against misplaced contempt citations is particularly important in divorce and custody cases in which the trial court’s authority over the parties may last for years. The Alabama judicial system has wisely addressed this by requiring a high standard of proof before a person may be found in contempt for failure to pay alimony or child support. As the Alabama Court of Civil Appeals stated in Falkner v. State ex rel. Falkner, 769 So.2d 933, 935 (Ala.Civ.App.2000):

“ ‘The inability to pay child support or alimony is a defense to contempt. When the accused presents evidence that he is unable to pay the ordered amount, the burden of proof is on the complainant to prove beyond a reasonable doubt that he can comply.’ ”

(Quoting Watts v. Watts, 706 So.2d 749, 751 (Ala.Civ.App.1997).)

In the instant case, Mr. McMorrough was ordered to pay a $90,000 lump-sum alimony settlement to Mrs. McMorrough, as well as $1,000 per month in periodic alimony. He failed to pay the $90,000 lump sum, paid only $250 per month for the first 17 months after the divorce, and ceased making any payment after that.

Mr. McMorrough claims an inability to pay as a defense. He testified that he lost his job as an aircraft mechanic shortly before the divorce. For some time thereafter he worked as a subcontractor for reduced pay, but that job ended in July 2004 and he has been looking for work ever since. He has placed résumés on the Internet and has looked for work as an aircraft mechanic in six different states, without success. As a result, Mr. McMor-rough decided to establish a new career in the insurance industry and has been studying for an exam to become a licensed insurance representative.

All of Mr. McMorrough’s testimony as to his loss of income and his lack of assets stands unrefuted. If any of these claims had been disputed by conflicting testimony or other evidence, as in Watts, supra, the trial judge would have had to resolve that conflict, and the ore tenus rule would require this Court to give substantial deference to the trial judge’s determination, overturning it only if it was clearly erroneous.

Because this testimony stands unrefut-ed, it clearly constitutes substantive evidence of inability to pay. In fact, the evidence of inability to pay in this case is far more substantive than it was in Falk-ner, supra, in which the defendant simply said “I don’t have a job,” and when asked whether she would like the opportunity to get a job and support her child, she did not respond. 769 So.2d at 934. The Court of Civil Appeals, however, found that she had presented evidence of an inability to pay and required the State to prove beyond a reasonable doubt that she was able to pay.

In the instant case, to the extent the trial court ruled that Mr. McMorrough failed to present substantive evidence of an inability to pay, that ruling was clearly erroneous and should be reversed. The burden falls upon the complainant to prove beyond a reasonable doubt that Mr. McMorrough is in fact able to pay. This she has clearly failed to do.

Presiding Judge Crawley’s dissenting opinion to the Court of Civil Appeals’ main opinion in this case quotes the following language in the parties’ divorce judgment:

“ ‘The court finds that the [former] husband has fraudulently disposed of marital assets over the past two years in an effort to avoid an equitable division of the property with the [former] wife. Therefore, the [former] husband shall pay to the [former] wife the lump sum of Ninety Thousand Dollars ($90,000), as alimony in gross to the [former] wife. This amount shall be paid within ninety (90) days after this [judgment].’ ”

The Court of Civil Appeals’ main opinion states that, even though Mr. McMorrough challenged the correctness of the trial court’s finding, that finding remains the “law of the case” and is binding in future proceedings.

However, as Judge Crawley observes in his dissent, the “law of the case” doctrine may not be applied to a divorce proceeding because such a proceeding is a civil matter and subject to a preponderance-of-the-evidence standard, whereas a contempt proceeding is, at least, quasi-criminal and requires proof beyond a reasonable doubt.

Furthermore, the divorce judgment says Mr. McMorrough fraudulently “disposed of’ marital assets; it does not say he concealed them. If he “disposed of’ those assets, then, arguably, he no longer has access to them. The finding in the judgment of divorce that Mr. McMorrough “disposed of’ those assets before the divorce was final is hardly evidence that he is currently able to pay the lump-sum and periodic alimony required by the divorce judgment. If anything, it is evidence to the contrary.

I am well aware that in sometimes acrimonious divorce proceedings and their aftermath, trial judges frequently suspect that parties have more income and assets than the parties are willing to acknowledge and that such suspicion is often correct. But that suspicion hardly rises to the level of proof beyond a reasonable doubt — the standard Alabama law requires where, as in the instant case, the defendant has presented substantive evidence of inability to pay.

Because I believe the requisite standard of proof has not been met in this case, I would grant certiorari review; I therefore dissent.

      . It should be noted that the term "dispose of" used by the trial court in the divorce judgment precludes the interpretation that Mr. McMorrough hid any money from an employment settlement he received before his divorce. By definition, to “dispose of” something is to get rid of it altogether, not to conceal it while maintaining access.

        The New Oxford American Dictionary (2d ed.2005) defines to "dispose of” as to "get rid of by throwing away or giving or selling to someone else.” Similarly, The American Heritage Dictionary of the English Language (4th ed.2000) defines "dispose of” as "to transfer or part with, as by giving or selling; to get rid of, throw out; to kill or destroy.” Lastly,
        Black’s Law Dictionary (6th ed.1990) defines the term as "to exercise finally, in any manner, one’s power of control over; to pass into the control of someone else; to alienate, relinquish, part with, or get rid of.... ”
      Common to each of these definitions is the core concept that the thing being "disposed of” is no longer in the possession or control of the one disposing of it. Thus, it is improper to conclude, based on the information available to this Court, that Mr. McMorrough was able but unwilling to pay the ordered alimony.


author: BRYAN, Judge.

text:
    Katrina M. GROGAN and Charlie V. Martin v. Ballard HILLMAN, Jr., and Susanne Hillman.
    2040227.
    Court of Civil Appeals of Alabama.
    Nov. 18, 2005.

      Terry P. Wilson, Montgomery, for appellants.
    Matthew T. Ellis of Parnell & Crum, P.A., Montgomery, for appellees.
   BRYAN, Judge.

Katrina M. Grogan and.Charlie V. Martin (“the plaintiffs”) appeal a judgment finding that they are not the owners of a 3.36-acre tract of unoccupied real property (“the property”) and that Ballard Hillman, Jr., and Susanne Hillman (“the defendants”) own the property.

Pursuant to § 6-6-560 et seq., Ala.Code 1975 (“the Grove Act”), the plaintiffs sued to quiet title to the property. The plaintiffs originally named.as opposing parties Hudson Hillman, the unknown devisees of Hudson Hillman, and the property. The plaintiffs later amended their complaint to add the defendants, who are the grandchildren of Hudson Hillman. In their complaint and amended complaint, the plaintiffs alleged that “[t]he last owner of record of [the] property is Hudson Hill-man by way of warranty deed....”

Summarizing § 6-6-560 of the Grove Act, our supreme court has stated:

“An action to quiet title under the terms of the Grove Act may be commenced when any one of the following situations is shown to exist:
“ ‘(1) When the complainant is in the actual, peaceable possession of the lands.
“ ‘(2) When neither the complainant nor any other person is in the actual possession of the lands and complainant has held color of title to the lands, or interest so claimed, for a period of ten or more consecutive years next preceding the filing of the bill, and has paid taxes on the lands or interest during the whole of such period.
“ ‘(3) When neither the complainant nor any other person is in the actual possession of the lands and complainant, together with those through whom he claims, have held color of title and paid taxes on the lands or interest so claimed for a period of ten or more consecutive years next preceding the filing of the bill.
“ ‘(4) When neither the complainant nor any other person is in the actual possession of the lands and complainant and those through whom he claims have paid taxes during the whole of such period of ten years on the lands or interest claimed, and no other person has paid taxes thereon during any part of said period.’ ”

Shelton v. Wright, 439 So.2d 55, 57 (Ala.1983) (emphasis omitted) (quoting Fitts v. Alexander, 277 Ala. 372, 375, 170 So.2d 808, 810 (1965)). The plaintiffs sued to quiet title to the property under the fourth condition quoted above.

Section 6-6-566(c) of the Grove Act provides the following conditions for establishing conclusive evidence of title:

“(c) Against all persons who have neither paid any taxes upon said lands nor had any possession thereof, or of any part thereof, during the 10 years next preceding the filing of the complaint ... proof of exclusive payment of taxes by the plaintiff or by the plaintiff and those through whom he claims title, during said 10-year period, shall be conclusive evidence of title to said lands in the plaintiff.”

The plaintiffs moved for a summary judgment and submitted evidence indicating that they were the only persons who had paid taxes on the property for the 10 years preceding the filing of the action and that no one was in actual possession of the property during those 10 years. In opposition to the motion for a summary judgment, the defendants submitted evidence establishing that Hudson Hillman, identified in the complaint as the “last owner of record of [the] property,” died intestate in 1946 and was survived by his widow and two sons, Ballard Hillman, Sr., and John L. Hillman. The defendants further submitted evidence establishing that in 1947 Ballard Hillman, Sr., the father of the defendants, acquired all of the interests in all the real property, including the property at issue in this case, that had been owned by Hudson Hillman at the time of his death. The defendants claimed that their father’s interest in the property had passed to them by intestacy.

The trial court entered a judgment finding that the plaintiffs had failed to meet the statutory requirements to quiet title to the property and that the defendants owned the property. In pertinent part, the judgment states:

“It is undisputed that the record titleholder to the Property is Hudson Hill-man. Furthermore, based on the evidence presented, Hudson Hillman died intestate ... and was survived by his widow, Helena Hillman, and sons, [Ballard] Hillman[, Sr.,] and [John L.] Hill-man. Subsequently ... [John L.] Hill-man and his wife conveyed the Property to Ballard 0. Hillman[, Sr.], who later died leaving two surviving children, namely, [the defendants]. Thus, [the defendants] are the record titleholders of the Property.
“The Plaintiffs have admitted and the evidence clearly shows that the Plaintiffs have never had any type of possession of the property, nor have the Plaintiffs produced any evidence denoting a conveyance of the Property to them to establish that they have color of title. Therefore, based on the evidence presented in this case, the Court finds that the Defendants hold superior record title to the Property. Thus, since the Plaintiffs have maintained that they have not occupied the Property, the Defendants have been in constructive possession of the Property.”

The plaintiffs appealed to the supreme court, and, pursuant to § 12-2-7(6), Ala. Code 1975, the supreme court transferred the appeal to this court.

“We review questions of statutory construction and interpretation de novo, giving no deference to the trial court’s conclusions.” Pitts v. Gangi, 896 So.2d 433, 434 (Ala.2004).

On appeal, the plaintiffs argue that the trial court erred because, the plaintiffs say, they produced conclusive evidence establishing their title to the property under § 6 — 6—566(c) of the Grove Act. The plaintiffs argue that they were the only persons who paid taxes on the property for the 10 years preceding the filing of their action. Furthermore, they argue that the defendants neither paid taxes on the property nor exercised “any possession” of the property or any part thereof during the preceding 10 years. The dispositive issue is whether the defendants’ title interest in the property constitutes “any possession” under § 6-6-566(c) and therefore defeats the plaintiffs’ attempt to establish conclusive evidence of title under § 6-6-566(c). The defendants argue that “any possession” under § 6-6-566(c) should be construed to include “constructive possession,” which the defendants claim to have by virtue of their record title to the property. The plaintiffs, on the other hand, argue that “any possession” can only mean “actual possession,” which the defendants did not have.

“The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.”

IMED Corp. v. Systems Engineering Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). In ascertaining legislative intent, this court looks to the entire act instead of isolated phrases or clauses. Lambert v. Wilcox County Comm’n, 623 So.2d 727, 729 (Ala.1993).

Although the legislature did not define what “any possession” means under the Grove Act, there appears to be a distinction between the terms “any possession” and “actual possession” as used in the act. Section 6-6-566(a) states that a plaintiff who presents proof of “actual, peaceable possession” of lands can establish conclusive evidence of title under certain circumstances. (Emphasis added.) Section 6-6-560 uses the terms “actual, peaceable possession” and “actual possession.” (Emphasis added.) Having already used the terms “actual possession” and “actual, peaceable possession” in the act, the legislature, had it intended “any possession” to mean “actual possession,” could have simply said “actual possession.” The modifier “any” in “any possession,” used in its natural and plain sense, suggests a definition broader than mere “actual possession.”

Our supreme court has defined various definitions of the word “possession” in the context of whether one is an “owner in possession,” and therefore has a right of redemption of property sold at a tax sale, under § 40-10-83, Ala.Code 1975:

“Possession may be ‘actual,’ ‘constructive,’ ‘scrambling,’ or ‘peaceable.’ Actual possession is possession in fact and exists when the property is in the immediate occupancy of the owner or the owner’s agent. Shannon v. Long, 180 Ala. 128, 60 So. 273 (1912). Constructive possession is possession incident to legal title accompanied by a right to immediate possession. Id. See Giardina v. Williams, 512 So.2d 1312 (Ala.1987). Scrambling possession is disputed or contested possession concerning the actual fact of possession itself. Hinds v. Slack, 293 Ala. 25, 299 So.2d 717 (1974); see Tanner v. Case, 273 Ala. 432, 142 So.2d 688 (1962). Peaceable possession may be either actual or constructive, but such possession is so clear that no one denies it. George E. Wood Lumber Co. v. Williams, 157 Ala. 73, 47 So. 202 (1908).”

State Dep’t of Revenue v. Price-Williams, 594 So.2d 48, 52 (Ala.1992). Given its natural and plain meaning, the term “any possession” includes “constructive possession.” The trial court’s finding that the defendants’ constructive possession of the property precluded the plaintiffs from establishing conclusive evidence of title under § 6-6-566(e) is therefore not in error.

The plaintiffs argue that Moorer v. Macon, 273 Ala. 66, 134 So.2d 181 (1960), stands for the proposition that “any possession” under § 6-6-566(c) does not include “constructive possession.” The ap-pellee in Moorer held title to a disputed lot in a quiet-title action brought under the Grove Act. The appellee “had not, in her own person, done any act of possession on the disputed lot in many years.” 273 Ala. at 69, 134 So.2d at 183-84. Our supreme court held that because the appellee’s husband had regularly gathered pecans from the disputed lot for several years before the filing of the action, the appellee had shown the requisite “any possession” under § 1123, Title 7, Code 1940, the predecessor of § G-G-fiGGie). 273 Ala. at 73, 134 So.2d at 187. The plaintiffs argue that because the supreme court’s analysis in Moorer focused on whether the appellee’s husband had exercised some sort of physical possession of the disputed lot, “any possession” under the act could not include “constructive possession.” However, the existence of actual possession in Moorer rendered the issue whether constructive possession also existed moot. Therefore, Moorer does not implicitly hold that “any possession” under § 6-6-566(c) does not include “constructive possession.”

The plaintiffs also argue that the trial court’s judgment should be reversed because, they say, the defendants have record title to only one acre of the 3.36 acres of the property. In their complaint and amended complaint, the plaintiffs alleged that Hudson Hillman is the last record owner of the property. The defendants claim to have inherited the property by intestacy. The plaintiffs argue that an examination of Hudson Hillman’s title reveals that he actually owned only one acre of the property. This apparent discrepancy was never raised in an argument to the trial court. “This Court cannot consider arguments raised for the first time on appeal.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992).

AFFIRMED.

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

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

      . These two provisions are virtually identical.