author: COBB, Chief Justice.

text:
    Antonio Ben ESPINOZA and Antonio Espinoza d/b/a Jabez Land Co. v. Maxine RUDOLPH.
    1080999.
    Supreme Court of Alabama.
    March 19, 2010.

      Andrew Laplante, Bessemer, for appellants.

      Douglas Corretti and Mary Douglas Hawkins of Corretti, Newsom & Hawkins, Birmingham, for appellee.
   COBB, Chief Justice.

Antonio Ben Espinoza and Antonio Espinoza d/b/a Jabez Land Co. (hereinafter referred to collectively as “Jabez”) appeal from the trial court’s judgment in favor of Maxine Rudolph in the amount of $50,000 in compensatory damages and $25,000 in punitive damages. We affirm.

Facts and Procedural History

Rudolph is the owner of real property on which is located a single-family residence (“the property”). According to Rudolph, the fair market value of the property is $59,000. For more than 10 years, until January 2007, Rudolph resided in the house on the property. From March 2007 until September 2007, Rudolph leased the property to a tenant, but that lease was terminated when the tenant failed to pay rent in accordance with the lease agreement. Rudolph subsequently put the property up for sale and engaged a real-estate agent for the purpose of selling the property. The sales price listed for the property was $54,000.

In April 2008, Rudolph made the acquaintance of Providence Hooper. After learning that Hooper “knew a little something about real estate,” Rudolph asked Hooper to view the property and to let her know what she thought about it. They visited the property together on May 8, 2008. At the trial of this case, Hooper gave the following description of the condi- ■ tion of the property as it was on May 8, 2008:

“The house was what I call a cottage. It had two bedrooms, a living room and somewhat of a den and kitchen and one bathroom. It had beautiful old wood floors. It was the kind of house that a young couple would purchase and do a little work on it, and it was a starter house, and maybe open up some walls, and it would be a very nice house that you could build equity and then move on.... [I]t was a '50s house. There is no perfect house. It was a good house. It was what people in the real estate business would say it has good bones.”

Washington Mutual Bank held a mortgage on the property. Historically, Washington Mutual had paid the property taxes on the property. However, it did not pay the taxes due in 2007, and, on May 20, 2008, the property was sold at a tax sale to Espinoza and Edwin Marks, as agents of TAG-South Property Renewal Company (“TAG-South”).

On approximately May 23, 2008, Jabez rented the residence to Josea Gonzales and Mark Gomez. Gonzales, Gomez, and their families moved into the residence on May 23, 2008. During the entire time they occupied the property, Jabez collected rent from them in the amount of $450 per month.

On May 30, 2008, Espinoza, as agent for TAG-South, filed in the Jefferson County Probate Office a document titled “Notice of Lien Statement of Lien [sic],” which stated:

“TAG-South Property Renewal Co. filed this statement in writing, verified by the oath of Antonio B. Espinoza, with a mailing address of 1116 20th Street South, # 323, Birmingham, Alabama and who has personal knowledge of the facts herein set forth:
“That said TAG-South Property Renewal Co. who is the entity that purchased a tax certificate on the below described property in a tax sale at the Jefferson County Courthouse, claims a lien upon [the property].
“The lien is claimed, separately and severally, as to both the buildings and improvements thereon, and the said land. That said lien is claimed to secure an indebtedness of $9,987.45 ... with interest, from the 22nd day of May 2008,[] for work, repairs, and improvements. The name of the owner and proprietor of the said property is Maxine H. Rudolph and the name under which the property is assessed is Maxine H. Rudolph.”

Around May 27, 2008, Rudolph’s realtor telephoned and asked her if she had leased the property to tenants. Rudolph responded that she had not. The realtor then informed Rudolph that some vehicles were parked on the property and that the realtor’s “for sale” sign was missing from the yard. On June 1, Rudolph went to the property and confirmed that people were living there.

After some investigation, Rudolph learned that the Jefferson County tax collector had sold the property to TAG-South for delinquent taxes in the amount of $234.41. On June 18, 2008, Rudolph obtained a certificate of redemption from the probate office after making a payment of $251.59. Meanwhile, according to Espinoza, on June 5, 2008, TAG-South transferred its interest in the property to Jabez by quitclaim deed.

On June 10, 2008, counsel for Rudolph sent a letter to TAG-South, Marks, and Espinoza, informing them that Rudolph had redeemed the property, demanding that the property be vacated, and threatening litigation in the event the property was not surrendered. A copy of Rudolph’s certificate of redemption was enclosed with the June 10, 2008, letter.

On June 13, 2008, Jabez sent the following letter to Rudolph via her counsel:

“This correspondence is in follow up to your letter dated June 10, 2008. All property rights for [the property] that were obtained as a result of the valid May 2008 tax sale that occurred at the courthouse in Jefferson County Alabama have been assigned to Jabez Land Co.
“You have made several representations in your letter dated June 10, 2008. Those representations are libelous, reprehensibly false and evidence of a reckless disregard for the peace and quiet enjoyment of the tenants residing at [the property]
“Restated, Jabez Land Co. has ownership and equitable rights in the property.... This property has been leased to tenants and demand is hereby made that you immediately cease and desist "with your breach of the peace and trespassing.”

On June 20, 2008, counsel for Rudolph again sent a letter to Marks, Espinoza, and TAG-South demanding possession of the property.

On June 28, 2008, accompanied by Hooper, Rudolph went to Espinoza’s business address and found him there. Rudolph explained to him in person that she had redeemed the property and that she wanted to know who was living in her house. Espinoza invited her to be seated and informed her that he would speak with her shortly. Espinoza then gathered up some papers, went outside the business, got into a vehicle, and drove away. Rudolph telephoned the police and asked to file a report.

Shortly thereafter, just as a police officer arrived to take Rudolph’s report, Espinoza returned. Espinoza spoke to the officer before Rudolph did. He informed the officer that he wanted to file a police report on Rudolph and that he wanted to obtain a restraining order to keep her off the property. Espinoza also told the officer that Rudolph and Hooper were “drama queens,” and he asked to have them arrested. The officer did not arrest them.

On June 24, 2008, counsel for Rudolph sent a letter to Jabez, again stating that the property had been redeemed, requesting the names of the occupants, and demanding that the property be vacated and possession returned to Rudolph.

On June 80, 2008, Jabez sent a letter to Rudolph, stating:

‘You have falsely communicated to my tenants they have no right to be there. You have also continued to harass me and my tenants. I have filed a police report and in follow up to my previous correspondence, this letter serves to again notify you that Jabez Land Co. has ownership and equitable rights in [the property].”

On July 2, 2008, Jabez filed a three-count complaint in the name of “Jabez Land Co.” against Rudolph in the Jefferson Circuit Court, Bessemer Division. In the first count of the complaint, Jabez sought a judgment declaring void Rudolph’s redemption of the property. In the second count of the complaint, Jabez sought to quiet title to the real property or, in the alternative, a judicial sale of the property to enforce the lien filed by TAG-South. In the third count of the complaint, Jabez sought a judgment awarding civil damages against Rudolph for alleged tortious interference with Jabez’s business relations with the tenants.

On July 7, 2008, Rudolph filed an answer. Paragraph 16 of Rudolph’s answer was not separately designated as a counterclaim, but stated:

“[Jabez] is indebted to [Rudolph] in the amount of Five Thousand ... Dollars ... for use and occupancy of [Rudolph’s] property.”

When she filed her answer, Rudolph did not submit the filing fee required for filing a counterclaim. See § 12 — 19—71(a)(8), Ala. Code 1975.

On July 7, 2008, Rudolph also filed a motion to strike Jabez’s complaint on grounds that “Jabez Land Co.,” the named plaintiff, is not a legal entity and is not licensed or qualified to do business in the State of Alabama. In addition, also on July 7, 2008, Rudolph filed a separate “emergency motion” seeking immediate possession of the property and an order directing Jabez to provide her with the names of the tenants residing on the property.

On July 22, 2008, Jabez filed a verified document styled “First Amended Complaint and Answer to Counterclaim.” In it, Jabez reasserted the claims in its original complaint seeking a declaratory judgment, alleging tortious interference with business relations, and seeking to quiet title or, in the alternative, a judicial sale. Further, Jabez added claims against Rudolph alleging tortious interference with a contractual relationship, slander, defamation, and libel. These additional claims were based on allegations that Rudolph had contacted Jabez’s tenants, asserted that she was the rightful owner of the property, and demanded that the tenants vacate the property. In addition, Jabez included an “Answer to Counter-claim of [Rudolph],” in which Jabez denied Rudolph’s allegation that Jabez was indebted to Rudolph in the amount of $5,000 for the use of the property. Jabez also asserted 25 separately numbered affirmative defenses to Rudolph’s counterclaim.

On August 14, 2008, the trial court entered an order denying Rudolph’s motion to strike Jabez’s complaint. On August 15, 2008, Rudolph filed a “Motion for Emergency Hearing” regarding her earlier “emergency motion” seeking immediate possession of the property.

On September 2, 2008, Rudolph filed an “Amended Answer” adding additional defenses and expressly asserting as counterclaims the following causes of action: ejectment, trespass, statutory action in the nature of ejectment, and slander of title. Further, under a theory of unjust enrichment, Rudolph sought to recover mortgage payments she had been making on the property while Jabez’s tenants were occupying it. Rudolph sought punitive damages and compensatory damages in conjunction with her counterclaims. When she filed her “Amended Complaint,” Rudolph did not pay the filing fee required for filing a counterclaim. See § 12-19-71(a)(8), Ala.Code 1975.

On September 12, 2008, the trial court entered an order granting Rudolph’s motion for immediate possession of the property and directing Jabez and the occupants to vacate the property.

On September 23, 2008, Jabez filed a document styled “Notice of Dismissal Without Prejudice and Release of All Claims,” which stated: “Plaintiff Jabez Land Co. hereby dismisses without prejudice and releases all claims in the above action.”

On September 25, 2008, the trial court entered an order stating that Jabez’s notice of dismissal “shall be treated as a motion to dismiss.” Further, the trial court granted the motion but dismissed the action “with prejudice.”

On September 26, 2008, Rudolph filed a motion requesting the trial court to amend or to set aside its order dismissing the action. Rudolph argued that “the case is not due to be dismissed until such time as there has been an adjudication of the issues presented by [Rudolph] in her counterclaim.”

On October 3, 2008, Josea Gonzales was murdered in the residence on the property. That same day, Mark Gomez, his family, and Gonzales’s family vacated the property. According to Espinoza, as he was driving past the property on the day of the murder, he saw that police were at the property and went inside to interpret for them. According to Espinoza, when he went into the house on the day of the murder, “blood was all over the carpet,” “it was pretty bad,” and “the house was in horrible condition.” As part of the investigation into the murder, the police cut out and removed portions of carpeting from the house.

On the night of October 3, 2008, after the police had finished gathering evidence, Rudolph entered the house, where she saw that holes had been cut in the carpet. According to Rudolph, the inside of the house was “filthy.” The back door was open, the kitchen sink and the pipes beneath it were “torn up,” the doors had been removed from the kitchen cabinets, the refrigerator was “messed up,” the eyes on the stove had been burned, the interior walls required painting, and “there were roaches everywhere.” Two of the four sides of the outside of the house, which had been blue, had been almost entirely painted yellow. One corner of one of these two walls was only partially painted yellow, with yellow streaks left by a paint roller that had been drawn across the original blue paint. Two sides of the house were still the original blue color.

On October 23, 2008, Jabez filed a response opposing Rudolph’s motion to amend or set aside the order dismissing the action. The basis of Jabez’s opposition was that Rudolph had not paid the filing fee required for filing a counterclaim.

On October 31, 2008, the trial court held a hearing on Rudolph’s motion to amend or set aside the order dismissing the action. Following the hearing, the trial court entered the following order:

“1. The Order of Dismissal ... is corrected to reflect that [Jabez’s] claims are dismissed without prejudice.
“2. [Rudolph] shall have fourteen (14) days to pay the requisite fee for her counterclaim.
“3. Upon the [payment] of the filing fee by [Rudolph] within said 14 days the Circuit Clerk is directed to change the status of this ease on the Alacourt system from ‘disposed’ to ‘active.’ ”

Rudolph paid the filing fee, and, on February 5, 2009, the case was tried without a jury. At trial, Rudolph testified that the fair market value of the property at the time she listed it with the real-estate agent was $59,000 and that the fair rental value of the property was $600 per month. Rudolph further estimated that the property was worth “maybe” $25,000 after the tenants vacated it. She estimated that the cost of repairing the damage to the house, including replacing the carpet, repairing the kitchen cabinets, repairing the plumbing, and repainting the interior and exteri- or, would be approximately $75,000.

Providence Hooper testified that, when she visited the property with Rudolph in May 2008, she noticed no obvious problems with the plumbing, the appliances were approximately three years old and “clean,” and the exterior of the house looked like it had been painted “fairly recently, maybe [within] a year or two.” There were no obvious problems with water damage or leakage from the roof, the gutters were in good shape, and the kitchen cabinets were “nice white cabinets.” However, Hooper noted that, although the interior walls were “in good shape,” they “maybe needed a little paint on them.” She stated that, if she were to get the house ready to move into for herself, she would remove a wall to “open up the kitchen,” paint the walls, and wax the wood floors.

Espinoza, however, testified that, shortly before purchasing the property on May 20, 2008, he viewed the property and found that the house was not suitable to live in. According to Espinoza, at that time, the property appeared abandoned, drug paraphernalia was strewn about the house, the exterior doors were standing open, sewage had backed up into the house, the roof was damaged, the interior walls and floor had been damaged by water from a roof leak, part of a fence in the yard had been damaged, the gutters needed replacing, some of the windows were broken, and the stove and refrigerator were broken. Espinoza also testified that the wiring in the house was so faulty that “every time you went to plug in something, a spark shot out.” In addition, according to Espinoza, boards and bricks on the exterior of the house were deteriorating and needed replacing. Espinoza testified that he “paid a guy” to make repairs. However, the majority of his testimony was either vague or contradictory with regard to the extent of the repairs, whom he had hired to make the repairs, how much the repairs cost, when he paid for the repairs, and whether he paid for the repairs with cash, check, or a credit card.

Espinoza testified that the lien he filed on behalf of TAG-South on May 30, 2008, for “$9,987.95 ... with interest, from the 22nd day of May 2008,” represented some of the cost of repairs and improvements to the property. He produced a number of receipts from various hardware stores to substantiate this allegation, some of which were marked with dates before May 20, 2008 (some from 2007 and 2006), and others bore dates subsequent to October 3, 2008, the date he relinquished possession of the property. When asked about the discrepancy in the dates on the receipts, Espinoza explained that his “bookkeeping [was] sloppy” and admitted that he could not tell whether the receipts he produced represented expenses related to Rudolph’s property, his own personal or business property, or other houses he had purchased at tax sales.

Before Espinoza left the stand, the trial court questioned Espinoza, resulting in the following exchange:

“The Court: I have a question I’m going to ask you, sir, the same question I asked you back in September, back in my office, and you didn’t answer it.... What made you think you had any claim to this property once you were notified that it had been redeemed?
“[Espinoza]: Okay. If I can correct the mistake I made then, my only claim to the property is that they had owed me for the work that I had put in to the property. I didn’t have a problem with saying, okay, this is your property, if you don’t want to sell it, if you want to keep it, it’s your property, you can take it back. However, I have made your property better than it was before I took over. So it’s only fair that you guys pay me for the work I have done. I don’t work for free. And I apologize that I did not correct that.... At that time, I think I probably should not have assumed that I would automatically be understood.... At that time, I was expecting Ms. Rudolph to say, put me in contact with the person who did it, and I was just going to explain all the problems, or say just pay her, and I was expecting her and I to come to an agreement for reimbursement for my expenses, and then I would have said take your property back if you don’t want to sell it....
“The Court: ... You know, I wasn’t asking that question back in my office to be funny because this is a lawsuit. It’s serious. And I asked you what makes you think that this lady was not entitled to possession of her property. This was back in September.... This all happened — she redeemed it June 18.... And all that time you still have folks in there. You claim a lien and cause to be proven at trial. Okay. But you make a lot of allegations in this lawsuit....
“[Espinoza]: Yes, sir. What I should have explained, and I apologize for just assuming that I would be understood or assuming that the process would be understood, I should have explained that I’m in complete agreement that Ms. Rudolph is entitled to possession of the house, but not until I’m paid what is owed to me, and I apologize I did not make that more clearer [sic].”

On February 16, 2009, the trial court entered the following order:

“This matter came before the Court for trial February 5, 2009.... Sworn testimony and other evidence was presented and the court finds and orders as follows:
“1. [Espinoza] obtained a possessory interest in land via a tax sale, he being the highest bidder for the [property] on May 20, 2008....
“2. [Rudolph] soon thereafter discovered that her mortgage company had not paid her property taxes as was its custom, and redeemed the dwelling on June 18, 200[8].
“3. [Rudolph] notified [Jabez] of the fact that she had redeemed the property immediately after she redeemed the property.
“3 [sic]. Despite this notification [Ja-bez] continued to rent [Rudolph’s] dwelling to tenants without submitting any monies to [Rudolph] and for some reason still unbeknownst to the court filed this frivolous lawsuit on [July 2, 2008]. “4. [Espinoza] testified during the trial but the [C]ourt cannot seriously accept as true anything he testified to. The Court finds that as of the date [Rudolph] obtained the Certificate of Tax Sale the dwelling in question was in good, livable condition and that by the time [Jabez] relinquished possession of the dwelling on October 3, 2008 (i.e., the night one of [Jabez’s] tenants was murdered in the dwelling and the police concluded their investigation) the dwelling was in essentially a trashed condition.
“WHEREFORE, the Court orders as follows:
“1. Judgment is rendered in favor of Maxine Rudolph and she is awarded $50,000.00 compensatory damages and $25,000.00 punitive damages against defendant Antonio B. Espinoza individually and Antonio B. Espinoza doing business as Jabez Land Company.
“2. Costs of this action are taxed against Antonio B. Espinoza individually and Antonio B. Espinoza doing business as Jabez Land Company.
“3. Any requested relief not granted herein shall be deemed denied.”

On March 17, 2009, Jabez filed a motion for a new trial and a motion to alter, amend, or vacate the judgment. On the same day, the trial court entered an order denying the motions.

On April 28, 2009, Jabez filed a notice of appeal to this Court from the trial court’s February 16, 2009, judgment.

Standard of Review

When evidence is presented ore tenus, the trial court is “ ‘unique[ly] positioned] to directly observe the witnesses and to assess their demeanor and credibility.’ ” Ex parte T.V., 971 So.2d 1, 4 (Ala.2007) (quoting Ex parte Fann, 810 So.2d 681, 683 (Ala.2001)). Therefore, a presumption of correctness attaches to a trial court’s factual findings premised on ore tenus evidence. Ex parte J.E., 1 So.3d 1002, 1008 (Ala.2008). When evidence is taken ore tenus and the trial judge makes no express findings of fact, this Court will assume that the trial judge made those findings necessary to support the judgment. Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992) (citing Fitzner Pontiac-Buick-Cadillac, Inc. v. Perkins & Assocs., Inc., 578 So.2d 1061 (Ala.1991)). We will not disturb the findings of the trial court unless those findings are “clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.” Gaston v. Ames 514 So.2d 877, 878 (Ala.1987) (citing Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So.2d 1177 (Ala.1981)). “‘The trial court’s judgment [in cases where evidence is presented ore ten-us] will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’” Transamerica, 608 So.2d at 378 (quoting Clark v. Albertville Nursing Home, Inc., 545 So.2d 9, 13 (Ala.1989), and citing Norman v. Schwartz, 594 So.2d 45 (Ala.1991)); see also Ex parte Perkins, 646 So.2d 46 (Ala.1994).

“However, the ore tenus standard of review has no application to a trial court’s conclusions of law or its application of law to the facts; a trial court’s ruling on a question of law carries no presumption of correctness on appeal.” Ex parte J.E., 1 So.3d at 1008 (citing Perkins, 646 So.2d at 47, and Eubanks v. Hale, 752 So.2d 1113, 1144-45 (Ala.1999)). This Court ‘“review[s] the trial court’s conclusions of law and its application of law to .the facts under the de novo standard of review.’ ” Id. (quoting Washington v. State, 922 So.2d 145,158 (Ala.Crim.App.2005)).

Analysis

I. Rudolph’s Alleged Failure to Move for Leave to Assert Counterclaims

Jabez contends that Rudolph did not assert counterclaims in her original answer. Jabez further contends that, on September 2, 2008, when Rudolph filed an amended answer containing new counterclaims, she did not obtain leave of court to do so. Jabez argues that those additional counterclaims were compulsory and that Rudolph waived them by not asserting them in her original answer or obtaining leave of court to assert them in a subsequent pleading. See Rule 13(a) and (f), Ala. R. Civ. P. Based on these alleged defects, Jabez contends that Rudolph’s counterclaims were not properly before the trial court when it dismissed the action. According to Jabez, the trial court therefore exceeded its discretion by reinstating Rudolph’s counterclaims after dismissing the action.

The record contains no indication that Jabez asserted these arguments before the trial court. Therefore, we will not reverse the judgment of the trial court on the basis of Rule 13(f), Ala. R. Civ. P. White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1057 (Ala.2008) (“It is well known that ‘we cannot reverse the judgment of the trial court based on an argument not made below and urged for the first time on appeal.’ Singleton v. State Farm Fire & Cas. Co., 928 So.2d 280, 285 (Ala.2005).”); Polytec, Inc. v. Utah Foam Prods., Inc., 489 So.2d 683, 686 (Ala.1983) (holding that “any objection for failure to obtain leave of the court [was] waived” because “[n]one of the counterdefendants objected to the counterclaim on this ground” before the trial court).

II. Rudolph’s Initial Failure to Tender the Fee Required When Filing Counterclaim

Jabez argues that, when the trial court dismissed the action upon Jabez’s “Notice of Dismissal,” the trial court had not acquired jurisdiction over Rudolph’s counterclaims because, it argues, she had not paid the filing fee required by § 12-19 — 71(a)(8), Ala.Code 1975. “A court is obligated to vigilantly protect against deciding cases over which it has no jurisdiction. ...” Crutcher v. Williams, 12 So.3d 631, 635 (Ala.2008). The parties may not waive lack of subject-matter jurisdiction, and subject-matter jurisdiction may not be conferred by consent. Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 894 (Ala.2008) (citing Ex parte Davis, 930 So.2d 497, 499-500 (Ala.2005)).

In support of its argument that the trial court did not obtain jurisdiction over Rudolph’s counterclaims until Rudolph paid the requisite filing fee, Jabez relies on cases construing § 12-19-70, Ala.Code 1975. Section 12-19-70(a) provides:

“There shall be a consolidated civil filing fee, known as a docket fee, collected from a plaintiff at the time a complaint is filed in circuit court or in district court.”

(Emphasis added.)

In De-Gas, Inc. v. Midland Resources, 470 So.2d 1218 (Ala.1985), the plaintiffs did not pay the docket fee required by § 12-19-70(a) until nearly two months after they had filed their complaint. The statute of limitations on the action had expired between the time the complaint was filed and the time the plaintiffs paid the docket fee. In considering whether the plaintiffs’ action commenced for statute-of-limitation purposes before the payment of the docket fee, this Court observed that “ § 12-19-70 requires the payment of filing fees ... at the time of filing the complaint ” and that “the defendant in an initial action cannot know of the existence of the suit against him” until the fees are paid and certain judicial action is taken on the complaint. Accordingly, this Court concluded that the payment of the fees required by § 12-19-70 “is a jurisdictional prerequisite to the commencement of an action for statute of limitations purposes.” De-Gas, 470 So.2d at 1222. But cf. Rule 3(a), Ala. R. Civ. P. (“A civil action is commenced by filing a complaint with the court.”).

Section 12-19-71(a)(8), Ala.Code 1975, requires the clerk to collect a filing fee for a counterclaim filed in the circuit court. Jabez argues that, like the docket fee mandated by § 12-19-70, the filing fee for a counterclaim is “jurisdictional.” See DeGas, 470 So.2d at 1222. Jabez suggests that a counterclaim is not truly “filed,” and thus does not become part of the action, until the filing fee required by § 12-19-70 is paid.

Although § 12-19-70 expressly requires that the docket fee must be “collected from [the] plaintiff at the time [the] complaint is filed,” § 12-19-70(a), Ala.Code 1975 (emphasis added), the legislature has not expressly provided that a filing fee must be collected at the time a counterclaim is filed. Cf De-Gas, 470 So.2d at 1220 (“ ‘There shall be a consolidated civil filing fee ... collected from a plaintiff at the time a complaint is filed .... ’ ... It was the obvious intent of the legislature to require that either the payment of this fee or a court-approved verified statement of substantial hardship accompany the complaint at the time of filing.” (quoting § 12-19-70, Ala.Code 1975)). Therefore, when Rudolph delivered the counterclaim to the clerk, the counterclaim was “filed” and became a part of the action over which the trial court had jurisdiction. See Rule 5(e), Ala. R. Civ. P. (“The filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court.... ”); Rubin v. Department of Indus. Relations, 469 So.2d 657 (Ala.Civ. App.1985) (“‘[A] pleading or other paper may be said to have been duly filed when it is delivered to the proper filing officer.’ ” (quoting Covington Bros. Motor Co. v. Robinson, 239 Ala. 226, 194 So. 663 (1940))); cf. Cunningham v. Lavoie, 874 So.2d 1068, 1071-72 (Ala.2003) (distinguishing the statutory fee for filing a claim in the probate court from the docket fee statutorily required to be submitted with complaint in a civil action in the circuit or district court); DeGas, 470 So.2d at 1222 (distinguishing the docket fee submitted with a complaint from the filing fee required in conjunction with the filing of an appeal).

Therefore, the trial court did not err by reinstating Rudolph’s counterclaims on the condition that she pay the filing fee. See Rule 41(a)(2), Ala. R. Civ. P. (“[A]n action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiffs motion to dismiss, the action may be dismissed but the counterclaim shall remain pending for adjudication by the court.”).

III. Validity of Redemption of Property

Jabez argues that the redemption of Rudolph’s property was invalid because, according to Jabez, Rudolph did not redeem her property in strict conformance with § 40-10-122, Ala.Code 1975, which governs the manner of redemption when land is sold at a tax sale to a party other than the State. Section 40-10-122(a) requires the redemptioner to “deposit with the judge of probate ... the amount of money for which the lands were sold, with interest payable at the rate of 12 percent per annum from date of sale.... ” It is undisputed that Rudolph satisfied the redemption requirements of § 40-10-122(a).

Section 40-10-122(c) provides that, with respect to “property [that] contains a residential structure at the time of the [tax] sale,” the redemptioner must pay the purchaser the amounts of “[a]ll insurance premiums paid or owed by the purchaser for casualty loss coverage on the residential structure[,] with interest,” and “the value of all preservation improvements made on the property determined in accordance with this section with interest on the value at 12 percent per annum.” Jabez did not pay insurance premiums on the property. Further, we infer that the trial court determined either that Jabez made no “preservation improvements” or that any such improvements had no value. Fitzner Pontiac-Buick-Cadillac, Inc., 578 So.2d at 1063 (“Because this case was tried ore tenus, this Court will assume that the trial court made the findings that were necessary to support its judgment....”). Such a finding is amply supported by the record. Clark v. Albertville Nursing Home, Inc., 545 So.2d 9, 13 (Ala.1989) (“The trial court’s judgment in [an ore tenus] ease will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.”). Therefore, Rudolph is not required to pay Jabez anything to satisfy the requirements of § 40-10-122(c).

Section 40-10-122(d) provides:

“The proposed redemptioner shall make written demand upon the purchaser of a statement of the value of all permanent or preservation improvements as applicable made on the property since the tax sale. In response to written demand made pursuant to this subsection, within 10 days from the receipt of such demand, the purchaser shall furnish the proposed redemptioner with the amount claimed as the value of such permanent or preservation improvements as applicable; and within 10 days after receipt of such response, the proposed redemp-tioner either shall accept the value so stated by the purchaser or, disagreeing therewith, shall appoint a referee to ascertain the value of such permanent or preservation improvements as applicable. The proposed redemptioner shall in writing (i) notify the purchaser of his or her disagreement as to the value; and (ii) inform the purchaser of the name of the referee appointed by him or her. Within 10 days after the receipt of such notice, the purchaser shall appoint a referee to ascertain the value of the permanent or preservation improvements as applicable and advise the proposed redemptioner of the name of the appointee. Within 10 days after the purchaser has appointed his or her referee, the two referees shall meet and confer upon the award to be made by them. If they cannot agree, the referees shall at once appoint an umpire, and the award by a majority of such body shall be made within 10 days after the appointment of the umpire and shall be final between the parties.”

Jabez argues that the redemption was invalid because Rudolph did not make a written demand for a statement of the value of improvements, and the parties did not resolve their dispute over moneys allegedly due Jabez for improvements according to the process required in § 40-10 — 122(d). Not until his postjudgment motion did Jabez argue that the redemption was invalid because Rudolph had not submitted a written request for an itemization of Jabez’s expenses or because she had otherwise failed to comply with the requirements of § 40 — 10—122(d). “ ‘[A] trial court has the discretion to consider a new legal argument in a post-judgment motion, but is not required to do so.’ ” Special Assets, L.L.C. v. Chase Home Fin., L.L.C., 991 So.2d 668, 678 (Ala.2007) (quoting Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369 (Ala.1988)). There is no indication that the trial court considered the merits of the legal argument raised for the first time in Jabez’s post-judgment motion, and we will not presume that it did. See Special Assets, 991 So.2d at 678. Jabez offers no justification for the delayed presentation of his argument. The trial court did not exceed its discretion in refusing to grant Jabez’s postjudgment motion on the basis of Rudolph’s failure to request an itemization of expenses Jabez incurred to improve the property. See Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1370 (Ala.1988) (“Based on the record before this Court on appeal, we conclude that there was no justification given by Green Tree for failing to raise the argument prior to its post-judgment motion.”).

For these reasons, we will not reverse the trial court’s judgment on the basis of Jabez’s contention that Rudolph failed to comply with § 40-10-122 in redeeming the property.

TV. Damages

Jabez argues that the trial court erred by awarding Rudolph $50,000 in compensatory damages and $25,000 in punitive damages. Having thoroughly considered the evidence as shown in the record in the light most favorable to the trial court’s judgment, see Transamerica, supra, we conclude that the damages awarded by the trial court are supported by the evidence. Yeager v. Lucy, 998 So.2d 460, 463 (Ala.2008) (“ ‘ “[W]here the evidence has been [presented] ore tenus ... [this Court] ... will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.” ’ ” (quoting Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000), quoting in turn Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977))). Accordingly, we affirm the trial court’s decision as to the amount of damages.

Conclusion

The judgment of the trial court is affirmed.

AFFIRMED.

LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

      .On July 2, 2008, Espinoza filed this suit against Maxine Rudolph in the name of "Ja-bez Land Co.” as sole plaintiff. Contrary to the allegations of its complaint and verified amended complaints, "Jabez Land Co.” is not a company qualified to do business in the State of Alabama. According to Espinoza's testimony at the trial in this case, "Jabez Land Co.” is the name of a sole proprietorship by which Espinoza does business. On January 15, 2009, Rudolph amended her counterclaim against Jabez Land Co. to substitute Espinoza as the counterclaim defendant, alleging that Espinoza was the "true defendant” and that "Jabez Land Co.” was "nothing more than a name” under which Espinoza conducted some of his business. On February 16, 2009, the trial court entered a judgment "against Antonio B. Espinoza individually and Antonio B. Espinoza doing business as Jabez Land Company.” On April 28, 2009, Espinoza filed a notice of appeal on behalf of "Jabez Land Co. and Antonio Espinoza.” We have restyled the appeal to reflect the true nature of the parties.

      . In setting forth the facts of this case, we are mindful that, "[ujnder the ore tenus standard of review, we must accept as true the facts found by the trial court if there is substantial evidence to support the trial court’s findings.” Beasley v. Mellon Fin. Servs. Corp., 569 So.2d 389, 393 (Ala.1990). Further, where the record is silent as to the trial court’s findings of fact on a disputed issue, we assume that the trial court made those findings necessary to support the judgment. Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992).

      . In late 2007 and early 2008, Washington Mutual suffered severe financial losses. Thereafter, during a series of national financial crises, Washington Mutual became the largest bank to fail in the history of the United States.

      .At trial, Espinoza testified that Marks is his cousin.

      . TAG-South is another name under which Espinoza conducts business.

      . Although Espinoza’s statement of lien claims a lien from May 22, 2008, the tax sale took place on May 20, 2008.

      . Until October 23, 2008, Espinoza personally signed all pleadings and filings on behalf of the sole plaintiff, Jabez Land Co. Espinoza is not a member of the Alabama State Bar, and. on October 23, 2008, Andrew LaPlante entered an appearance as counsel for Jabez Land Co.

      . Espinoza produced in court, and testified at length about, a number of receipts marked with dates that did not correspond with the period during which he and his tenants possessed the property. However, with one exception, only receipts from the period of Ja-bez’s possession of the property were entered into evidence. The total value of the receipts entered into evidence for that period falls far short of $9,987.95.

      . The record, however, speaks for itself. Rudolph did not designate as a counterclaim that portion of her answer asserting that Ja-bez was indebted to her “in the amount of Five Thousand ... Dollars ... for use and occupancy of [the] property.” However, Ja-bez clearly understood that allegation to be, and treated it as, a counterclaim — as is evident from Jabez’s extensive responsive plead-tog designated as an "Answer to [Rudolph’s] Counterclaim.” See Rule 8(f), Ala. R. Civ. P. ("All pleadings shall be so construed as to do substantial justice.”); cf. Rule 8(c), Ala. R. Civ. P. (“When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.”).

      . Section 12-19-71(a)(8) provides:
      "The filing fees which shall be collected in civil cases shall be:

      (8) Two hundred ninety-seven dollars ($297) for a counterclaim, cross claim, third party complaint, a third party motion, or an action for a declaratory judgment filed in a civil action of the circuit court other than cases filed on the domestic relations docket of the circuit court.”

      . Jabez makes no allegation that the statute of limitations ran before Rudolph paid the filing fee.

      .We note that, when the requirements of § 12-19-71 have not been satisfied, the trial court may stay the time for answering the counterclaim or conducting discovery or litigating the counterclaim until the fee is paid or may make such other orders as are reasonable and necessary to ensure payment. Consequently, a counterclaim defendant is not without incentive to take note of, and timely object to, the nonpayment of the filing fee.


source: Caselaw Access Project

author: COBB, Chief Justice. MURDOCK, Justice

license: Public Domain

text:
    Henry PENICK v. MOST WORSHIPFUL PRINCE HALL GRAND LODGE F & A M OF ALABAMA, INC.
    1071530.
    Supreme Court of Alabama.
    March 19, 2010.

      Henry L. Penick of H.L. Penick & Associates, P.C., Birmingham, for appellant.
    Mark N. Chambless of Chambless Math Carr, P.C., Montgomery, for appellee.
   On Application for Rehearing

COBB, Chief Justice.

This Court’s opinion of November 13, 2009, is withdrawn, and the following is substituted therefor.

Henry Penick, the defendant in an action in the Jefferson Circuit Court seeking specific performance of an agreement to execute a deed in lieu of foreclosure and ejectment, appeals from a summary judgment in favor of the plaintiff, Most Worshipful Prince Hall Grand Lodge F & A M of Alabama, Inc. (“the Lodge”). We affirm in part, reverse in part, and remand.

I. Factual Background and Procedural History

Penick is a member of the Alabama State Bar and practices law in Birmingham. On July 12, 1991, Penick executed two notes evidencing his indebtedness to the Lodge, one in the amount of $50,000 and the other in the amount of $150,000, and a second mortgage on his law-office property securing the notes.

The notes were identical in all respects except for the amount. Paragraph 10 of the notes provided that, if an interest in the property securing the notes was transferred without the Lodge’s prior written consent, the Lodge had a right to “demand immediate payment in full of all sums secured.” If the Lodge exercised this option, the Lodge was to give Penick notice of acceleration providing not less than 30 days for full payment. If Penick failed to fully pay all sums secured by the property within that 30-day period, the Lodge was entitled to “invoke any remedies permitted by this Security Instrument without further demand on [Penick].”

Penick mortgaged his office building in Birmingham as security for the loan. The mortgage contained the following pertinent provisions:

“17. Transfer of the Property; Assumption. If all or any part of the property is sold or transferred by [Pen-ick] without [the Lodge]’s prior written consent, .excluding ... the creation of a lien or encumbrance subordinate to this Mortgage ..., [the Lodge] may, at [the Lodge’s] option, declare all the sums secured by this Mortgage to be immediately due and payable.... If [the Lodge] exercises such option to accelerate, [the Lodge] shall mail [Penick] notice of acceleration.... Such notice shall provide a period of not less than 30 days from the date the notice is mailed within which [Penick] may pay the sums declared due. If [Penick] fails to pay such sums prior to the expiration of such period, [the Lodge] may, without further notice or demand on [Penick], invoke any remedies permitted by paragraph 18 hereof.
“18. Acceleration; Remedies. Except as provided in paragraph 17 hereof, upon [Penick’s] breach of any covenant or agreement of [Penick] in this Mortgage, including the covenants to pay when due any sums secured by this Mortgage, [the Lodge] prior to acceleration shall mail notice to [Penick] as provided in paragraph 14 hereof specifying: (1) the breach; (2) the action required to cure such breach; (3) a date, not less than 30 days from the date the notice is mailed to [Penick], by which such breach must be cured; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Mortgage and sale of the Property. The notice shall further inform [Penick] of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of [Penick] to acceleration and sale. If the breach is not cured on or before the date specified in the notice, [the Lodge] at [the Lodge’s] option may declare all of the sums secured by this Mortgage to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by applicable law.
“19. [Penick’s] Right to Reinstate. Notwithstanding [the Lodge’s] acceleration of the sums secured by this Mortgage, [Penick] shall have the right to have any proceedings begun by [the Lodge] to enforce this Mortgage discontinued at any time prior to the earlier to occur of (i) the fifth day before sale of the Property pursuant to the power of sale contained in this Mortgage or (ii) entry of a judgment enforcing this Mortgage if: (a) [Penick] pays [the Lodge] all sums which would be then due under this Mortgage [and] the Note[s] ... had no acceleration occurred; (b) [Penick] cures all breaches of any other covenants or agreements of [Penick] contained in this Mortgage; (c) [Penick] pays all reasonable expenses incurred by [the Lodge] in enforcing the covenants and agreements of [Penick] contained in this Mortgage and in enforcing [the Lodge’s] remedies as provided in paragraph 18 hereof, including, but not limited to, reasonable attorney’s fees; and (d) [Penick] takes such action as [the Lodge] may reasonably require to assure that the lien of this Mortgage, [the Lodge’s] interest in the Property and [Penick’s] obligation to pay the sums secured by this Mortgage shall continue unimpaired. Upon such payments and cure by [Penick], this Mortgage and the obligation secured thereby shall remain in full force and effect as if no acceleration had occurred.”

By September 2002, Penick had defaulted on the notes. On September 17, 2002, the attorney for the Lodge sent Penick a letter stating that the “account is seriously delinquent” and that the balance on the notes was immediately payable. The letter also stated that unless the entire balance of the debt was paid, the law-office property securing the notes would be offered for public sale. A copy of the mortgage-foreclosure-sale notice, specifying a sale date of October 14, 2002, was enclosed with the letter. The Lodge also filed a foreclosure action against Penick.

The October 14, 2002, sale date was postponed, and on October 16, 2002, Pen-ick and the Lodge entered into a “modification agreement,” which provided that Penick would pay a lump sum of $17,500, would resume monthly payments of $1,800, and would begin making monthly payments of $1,000 toward the arrearage. The modification agreement also provided:

“2. PENICK agrees that all other terms and conditions of the Note and Mortgage which are not expressly modified hereby remain in full force and effect. In the event in [sic] a default in the terms of the Note or Mortgage as modified, PENICK agrees to execute and deliver a Deed in Lieu of Foreclosure on written request of the [Lodge], provided however, that as long as any payment under the terms of the Note and Mortgage as modified is paid within the month in which it comes due, such payment shall not be considered as a default under the terms of the Note and Mortgage as modified. The time of performance of all other covenants and conditions of the Note and Mortgage shall not be affected by this agreement.
“8. PENICK shall pay any past due taxes and insurance on or before October 31, 2002 and maintain taxes and insurance as required by the terms and conditions of the Note and Mortgage.”

(Capitalization in original.)

The record contains an affidavit by Pen-ick. In the affidavit, Penick stated:

“Prior to executing the Modification Agreement, I called Leo Math[, the attorney for the Lodge,] and informed him that I did not want to sign the agreement because I did not want the ... Lodge ‘sneaking up on me’ and demanding a deed in lieu of foreclosure, but instead wanted the ... Lodge to notify me of the amount in default and give me thirty (30) days to cure that amount and to reinstate and, failing that, the ... Lodge could then demand a deed in lieu of foreclosure. I asked that these provisions be incorporated into the Modification Agreement. Mr. Math, as attorney for [the Lodge] told me that it was not necessary to include the notice provisions, rights to cure and reinstatement in the Modification Agreement, because those rights were already in the Notes and Mortgage and the Modification Agreement did not modify those provisions. He pointed my attention to the specific language in the Modification Agreement that says ‘Penick agrees that all other terms and conditions of the Note or Mortgage which are not expressly modified hereby remain in full force and effect.’ He also pointed to the language in Paragraph 2 of the Modification Agreement that says ‘the time of performance of all other covenants and conditions of the Note and Mortgage shall not be affected by this Agreement.’ ”

After Penick executed the modification agreement, the Lodge dismissed its foreclosure action against him.

On August 23, 2006, the Lodge sent Penick a letter that stated:

“This account is seriously delinquent and you are hereby advised that the balance due under the note and mortgage are hereby accelerated pursuant to the terms thereof. Unless the entire balance of the debt, including costs incurred to date, is paid in full to our office, we will foreclose on the property and offer it up for public sale_En-closed is a copy of the Mortgage Foreclosure Sale Notice. No further notices will be sent to you. CONTACT THIS OFFICE WITHIN TEN DAYS OF THE DATE OF THIS LETTER TO OBTAIN THE PAYOFF AMOUNT AND PAY THE OUTSTANDING BALANCE IF FULL.”

(Capitalization in original.)

Penick responded by letter dated September 15, 2006, to one of the Lodge’s attorneys, in which he stated:

“On August 28, 2006, I requested you and [another of the Lodge’s attorneys] to request the Grand Master [of the Lodge] to allow me to cure the default in my loans, pay my loans current and allow me to resume payments. You indicated that you would discuss this matter with the Grand Master and would let me know. Nearly 3 weeks have elapsed, yet I have not received a reply from you ... nor has anyone told me what amount I need to pay to bring my loans current. Please provide me with a written response detailing the amount needed to bring the loans current.
“If the Grand Master is not inclined to let me cure the default, I would like to discuss a plan to pay off the ... loans.... ”

On September 25, 2006, Penick filed a petition in bankruptcy in the United States Bankruptcy Court for the Northern District of Alabama. On October 10, 2006, Penick again wrote one of the attorneys for the Lodge, offering to pay all past-due amounts “in exchange for” the Lodge’s agreement to allow him to resume payments. On October 24, 2006, Penick’s bankruptcy petition was dismissed.

On November 7, 2006, Penick sent the Lodge a letter that stated:

“Since you have not responded to the request I made on October 26, 2006, to bring my loans current,[] I am enclosing a cashier’s check in the amount of $14,000.00, which represents payments due from June 12, 2006 through October 12, 2006.
“Pursuant to a conversation with the Grand Master, I paid the Grand Lodge current on May 10, 2006, by paying the sum of $4,100.00. (Exhibit 1). The payment ... due for May 12, 2006, was paid in two installments on June 9, 2006, and July 7, 2006.”

On November 13, 2006, the attorney for the Lodge wrote Penick and stated:

“Pursuant to paragraph 2 of [the modification] agreement, the Lodge has elected to request a deed in lieu of foreclosure based on your existing and continuing default in payments under that agreement.... Please execute and return a notarized copy of this deed within ten days of the date of this letter.... ”

By correspondence dated November 20, 2006, the Lodge sent Penick a mortgage-foreclosure-sale notice.

By letter dated November 21, 2006, the Lodge informed Penick that it was rejecting Penick’s offer to settle and returning his $14,000 cashier’s check. The Lodge further stated: “We have previously made an offer to settle and provided the figures to pay off the mortgage and attorney fees incurred over the past four years of working on this file.... The balance in full is demanded.”

On December 19, 2006, Penick filed a second petition in bankruptcy in the United States District Court for the Northern District of Alabama. On September 5, 2007, Penick’s second bankruptcy petition was dismissed.

On October 5, 2007, a federal tax lien was filed on the mortgaged property for $61,407.97 in unpaid income taxes for the years 1996, 1997, 2000, 2001, 2002, 2004, and 2005. In 2007, the property was sold at a tax sale for unpaid property taxes.

On November 26, 2007, the Lodge filed a complaint in the Jefferson Circuit Court. The Lodge’s complaint contained two “counts.” Count I sought an order requiring Penick to sign a deed in lieu of foreclosure. Count II was a request for an order of ejectment. On January 2, 2008, Penick filed a motion to dismiss. On April 4, 2008, Penick answered the complaint. In his answer, he asserted without specificity that the Lodge lacked capacity to sue.

On June 12, 2008, the Lodge filed a motion for a summary judgment on both counts of the complaint. Penick opposed the motion. On July 10, 2008, the trial court held a hearing on the motion. At the hearing, Penick stated that it had “probably been” 24 months since he had made a payment on the notes. However, he stated that he had offered to pay the past-due amounts and had tendered a check to bring the loans current, but the Lodge had refused his check. Penick’s statements at the hearing were not made under oath.

On July 29, 2008, the trial court entered an order granting the Lodge’s summary-judgment motion, ordering Penick to execute the deed in lieu of foreclosure, and ordering Penick to vacate the property. In that order, the trial court stated:

“The modification agreement provides that in the event of default under the terms of the note or mortgage as modified, upon written demand, Penick would execute and deliver to [the Lodge] a deed in lieu of foreclosure. [The Lodge] has made written demand on Penick for a deed in lieu of foreclosure but he has refused to do so but he remained in possession of the subject property.
“It is undisputed that the monthly payments due have not been paid on a timely basis and that Penick is in arrears in payments by more than thirty (30) days. A tax lien has been filed against the property. The undisputed facts show that Penick has breached the terms of the original mortgage as well as the terms of the modification agreement. ...
“The modification agreement is not ambiguous .... The plain language of the modified agreement obligates Penick to sign a deed in lieu of foreclosure upon the written demand of the Grand Lodge, if there is a default under the terms of the note and mortgage as modified. There are at least three undisputed matters of default: monthly payments due have not been paid on a timely basis; the payments are in arrears by more than thirty (30) days; and a tax lien has been filed against the property. The [Lodge] has made a written demand for execution and delivery of a deed in lieu of foreclosure and [Penick] has refused to provide the same. [The Lodge] is entitled to a deed in lieu of foreclosure under the terms of the note and mortgage as modified.... ”

On August 5, 2008, Penick filed a notice of appeal from the judgment of the trial court.

II. Standard of Review

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the non-movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038 (Ala.2004).

III. Analysis

A. Standing

The Lodge brought this action under the name of “The Most Worshipful Prince Hall Grand Lodge F & A M of Alabama, Inc.” It is undisputed that the Alabama Secretary of State has no record of a corporation by this name.

The record contains no evidence indicating that the Lodge is a duly formed corporation. Penick contends that the record therefore contains no evidence indicating that the Lodge has standing to bring this action. Penick argues that the trial court should have dismissed this case for lack of jurisdiction. See State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999) (“When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.”); see also Crutcher v. Williams, 12 So.8d 681, 635 (Ala.2008) (“A court is obligated to vigilantly protect against deciding cases over which it has no jurisdiction. ...”); Ex parte Smith, 438 So.2d 766, 768 (Ala.1983) (“Lack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu.” (citing City of Huntsville v. Miller, 271 Ala. 687, 688, 127 So.2d 606, 608 (1958))).

Regardless of whether the Lodge is a corporation, an unincorporated association, or some other kind of entity, it is undisputed that the Lodge lent Penick the money secured by the mortgage. It is undisputed that, as a result of Penick’s failure to pay the loan as he contracted to do, the Lodge has suffered direct financial injury. Thus, regardless of the Lodge’s organizational structure and corporate status, the Lodge seeks redress for an injury to its legally protected contractual rights; therefore, it has standing to bring this action. Rainbow Drive, 740 So.2d at 1027 (“Standing ... turns on “whether the party has been injured in fact and whether the injury is to a legally protected right.’ ” (quoting Romer v. Board of County Comm’rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting))); Smith v. Potts, 293 Ala. 419, 422, 304 So.2d 578, 580 (1974) (“One has standing to bring his complaint into court ‘if his stake in the resolution of that complaint assumes the proportions necessary to ensure that he will vigorously present his case.’” (quoting Harman v. City & County of San Francisco, 7 Cal.3d 150, 159, 101 Cal.Rptr. 880, 886, 496 P.2d 1248, 1254 (1972); citing Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962))).

Penick argues that the Lodge could be a foreign corporation and that there is no evidence in the record to indicate that the Alabama Secretary of State has authorized the Lodge to do business in Alabama. Penick contends that, if the Lodge is a foreign corporation lacking a certificate to do business in Alabama from the Alabama Secretary of State, then it would have no standing to maintain an action in the courts of this State pursuant to § 10-2B-15.02(a), Ala.Code 1975.

A foreign corporation’s failure to obtain authorization to do business in Alabama is a capacity defense and does not per se implicate standing and subject-matter jurisdiction. Archer Western Contractors, Ltd. v. Benise-Dowling & Assocs., Inc., 33 So.3d 1216, 1219 n. 4 (Ala.2009) (“[Section] 10-2B-15.02(a), Ala.Code 1975, does not preclude the courts of this state from exercising jurisdiction over actions brought by unauthorized foreign entities transacting business in Alabama for the purpose of enforcing their contracts.”); Moseley v. Commercial State Bank, 457 So.2d 967 (Ala.1984) (holding that a foreign corporation’s lack of authorization to do business in Alabama is a capacity defense that is waived unless timely asserted by specific negative averment); cf. Rainbow Drive, 740 So.2d at 1028 (“ ‘Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.”’ (quoting National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798,127 L.Ed.2d 99 (1994))); Ex parte Smith, 438 So.2d 766, 768 (Ala.1983) (“Lack of subject matter jurisdiction may not be waived by the parties ....”); and Mobile, Alabama-Pensacola, Florida Bldg. & Constr. Trades Council v. Williams, 346 So.2d 964, 966 (Ala.1977) (Faulkner, J., dissenting) (“There is a difference between capacity to sue and standing to sue.”). Therefore, Penick’s arguments that the Lodge lacks standing to bring this action are without merit.

B. Capacity to Sue

Relying extensively on Shepherd v. Birmingham Trust & Savings Co., 233 Ala. 320, 171 So. 906 (1937), Penick argues that the Lodge had the burden of specifically pleading and proving that it had the capacity to sue. Penick further argues that, under Shepherd, the allegation in the Lodge’s complaint that it was a corporation was insufficient to satisfy what Penick says was its burden to plead and prove its capacity to sue. Accordingly, Penick argues, the trial court should have granted Penick’s motion to dismiss the Lodge’s complaint.

In Shepherd, this Court noted that “[t]he rules of good pleading in equity require that the complainant must plead his character and capacity to sue.” 233 Ala. at 322, 171 So. at 908. The Shepherd Court further held that, if, “construing the averments of the bill most strongly against the pleader, it is uncertain in what capacity the complainant sues, the bill is subject to demurrer.” 233 Ala. at 323, 171 So. at 909. In addition, the Shepherd Court noted: “The name in which the complainant in this case sues ‘does not ex vi termino-rum, import that the’ complainant ‘is a corporation, rather than’ a partnership or ‘an unincorporated organization or association,’ and there is no presumption in its favor that it is one or the other.” 233 Ala. at 323,171 So. at 909. On these principles, and on the obsolete principle that “on, demurrer, the intendment is resolved against the pleader,” the Shepherd Court sustained a demurrer. 233 Ala. at 323,171 So. at 909-10.

However, in 1973, this Court adopted the Alabama Rules of Civil Procedure. Rule 9(a), Ala. R. Civ. P., addresses the capacity to sue and provides:

“It is not necessary to aver the capacity of a party to sue ... or the legal existence of an organized association of persons that is made a party. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue ..., the party desiring to raise the issue shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.”

Further, the Committee Comments on the 1978 Adoption of Rule 9 state:

“Rule 9(a) is based on the premise that capacity is not in issue in most cases, and that it should be raised by specific averment in the few cases where it is in issue rather than pleaded as a matter of course in all cases. Existing Alabama law had required the complaint to show affirmatively that the plaintiff was a legal entity capable of suing or being sued, if that was the fact. Buchman v. Grimes, 261 Ala. 388, 74 So.2d 443 (1954); Shepherd v. Birmingham Trust & Savings Co., 233 Ala. 320, 171 So. 906 (1937). The rule abolishes this requirement .... ”

In short, Rule 9(a) renders obsolete the holding in Shepherd that capacity to sue must be pleaded by specific averment in the complaint. In accordance with Rule 9(a), the burden was on Penick, not the Lodge, to assert the capacity-to-sue issue. Penick has provided no evidence and no legal authority to establish that the Lodge lacks capacity to sue. Accordingly, we will not reverse the judgment of the trial court in declining to dismiss the Lodge’s complaint for lack of capacity to sue.

C. Lack of Specificity of the Complaint

It is undisputed that Penick owns the real property at issue in this action, that Penick mortgaged the property, and that the Lodge holds the second mortgage on the property. It is undisputed that the mortgage originally described that property incorrectly but that a corrected mortgage was subsequently issued accurately describing the property. The record contains copies of both the original and the corrected mortgage documents. Those documents were properly before the trial court on the summary-judgment motion.

However, Penick argues that the trial court should have granted his motion to dismiss the Lodge’s complaint because the mortgage that was attached to the Lodge’s complaint was not the corrected mortgage and the property was not otherwise precisely and accurately described in the complaint. Penick also argues that the summary judgment in favor of the Lodge was improper because, according to Penick, the Lodge did not sufficiently aver in its complaint that it had fulfilled all conditions precedent to foreclosing on the mortgage and that it was willing to do equity. In support of these arguments, Penick relies on Shepherd, supra, which describes specific pleading requirements for complaints in actions on mortgages before the adoption of the Alabama Rules of Civil Procedure.

Penick also relies extensively on the following rule set forth in Chandler v. Bodeker, 219 Ala. 357, 359, 122 So. 435, 436 (1929), another case predating the Alabama Rules of Civil Procedure:

“[A] general allegation of [contract] performance on the part of complainant is insufficient as against demurrer....
“... [T]he bill shall by averments of fact make certain to a common intent that a valid, enforceable contract exists, the terms thereof, and performance by complainant on his part or a sufficient excuse for nonperformance, accompanied with averments showing he is able and willing to perform, and offers so to do.”

The adoption of the Alabama Rules of Civil Procedure rendered obsolete the specific pleading averments needed to overcome a demurrer in a contract action that are described in Shepherd and Chandler, Penick’s extensive reliance on those cases is misplaced. See Rule 56(c)(3), Ala. R. Civ. P. (stating that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law on the issues specifically set forth in the motion”). Therefore, we will not reverse the summary judgment on the authority of Shepherd and Chandler, because of an alleged lack of specificity of the complaint.

D. Construction of the Mortgage, the Notes, and the Modification Agreement

“In interpreting a contract, the ‘ “words of the agreement will be given their ordinary meaning.” ’ Hibbett Sporting Goods, Inc. v. Biernbaum, 391 So.2d 1027, 1029 (Ala.1980) (quoting Flowers v. Flowers, 334 So.2d 856, 857 (Ala.1976)).... ‘If the terms within a contract are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court and, when appropriate, may be decided by a summary judgment. However, if the terms within the contract are ambiguous in any respect, the determination of the true meaning of the contract is a question of fact to be resolved by a jury.’ McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853, 855 (Ala.1991) (citations omitted).”

Reeves Cedarhurst Dev. Corp. v. First Amfed Corp., 607 So.2d 184, 186-87 (Ala.1992).

Paragraph 2 of the modification agreement gives the Lodge the right to demand a deed in lieu of foreclosure in the event of default by Penick. Penick points out that paragraph 2 of the modification agreement also states: “[A]ll other terms and conditions of the Note and Mortgage which are not expressly modified hereby remain in full force and effect.... The time of performance of all other covenants and conditions of the Note and Mortgage shall not be affected by this agreement.” Relying on this language, Penick argues that the modification agreement did not “expressly modify” the provisions relating to notice found in paragraph 10 of the notes and paragraphs 17 and 18 of the original mortgage. Penick contends that, in the event of a default, those provisions required the Lodge to provide Penick a detailed notice of default and of the right to reinstate, and to allow Penick 30 days in which to pay off the balance of the loan in the event of a default by transfer of a superior interest in the mortgaged property to a third party or, in the event of any other default, to cure any default before pursuing any remedies for default. It is undisputed that the Lodge did not follow the procedures outlined in paragraph 10 of the notes or paragraphs 17 and 18 of the original mortgage before demanding a deed in lieu of foreclosure.

However, paragraph 2 of the modification agreement states that, “[i]n the event [of] a default in the terms of the Note or Mortgage as modified, PENICK agrees to execute and deliver a Deed in Lieu of Foreclosure on written request of the [Lodge].” (Capitalization in original.) Thus, paragraph 2 unambiguously and “expressly” grants the Lodge an additional remedy “in the event of a default”: the right to obtain a deed in lieu of foreclosure upon written request. Therefore, the modification agreement “expressly” modified any previous agreement between the parties that the Lodge could pursue no remedy for default unless it first followed certain notice procedures and gave Penick 30 days in which to pay off the loan or cure any default. The trial court did not err in holding that a written request was the only precondition applicable to the Lodge’s right to obtain a deed in lieu of foreclosure in the event of a default by Penick.

Penick argues that the modification agreement should be interpreted in light of Leo Math’s alleged assurances that the notice and right-to-cure provisions of the original mortgage were prerequisites to the Lodge’s right to demand a deed in lieu of foreclosure. Penick argues that parol evidence may be relied upon to resolve latent ambiguities in a contract or matters upon which a contract is silent. However, Penick’s arguments are inapposite because the modification agreement is neither silent nor ambiguous as to the Lodge’s right to obtain a deed in lieu of foreclosure upon written demand in the event of a default.

Penick also argues that, pursuant to paragraph 19 of the original mortgage, he had a right to reinstate the loans after the Lodge made its demand for a deed in lieu of foreclosure. Paragraph 19 provides that, after any default and “[notwithstanding ... acceleration,” Penick could reinstate the loan “at any time prior to the ... entry of a judgment enforcing this Mortgage ... if: (a) [Penick] pays [the Lodge] all sums which would be then due under this Mortgage [and] the Note[s] ... had no acceleration occurred; [and] (b) [Pen-ick] cures all breaches of any other covenants or agreements of [Penick] contained in this Mortgage.... ”

Penick contends that he timely and properly attempted to reinstate the loans by paying the sums necessary to bring the loans current. Penick further argues that he attempted to exercise this right to reinstate the loans by tendering a cashier’s check for an amount that would make the loans current. However, in addition to paying the sums necessary to bring the loans current, paragraph 19 conditions the reinstatement of the loans on Penick’s curing “all breaches of any other covenants and agreements ... contained in [the] Mortgage.” In its summary-judgment order, the trial court found that “there are at least three undisputed matters of default: monthly payments due have not been paid on a timely basis; the payments are in arrears by more than thirty (30) days; and a tax lien has been filed against the property.” (Emphasis added.) Penick wholly fails to address the trial court’s finding that the existence of the tax lien represented a default. Penick does not cite any law, contractual provision, or record evidence to demonstrate that he had a right to reinstate the loans or to refuse to sign the deed in lieu of foreclosure despite his utter failure to cure his tax-related default. “[I]t is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party....” Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994).

E. Judicial Estoppel

Penick argues that the Lodge is judicially estopped from demanding a deed in lieu of foreclosure because the Lodge filed a claim in Penick’s bankruptcy case seeking regular monthly payments. Pen-ick states that, on October 24, 2006, he “dismissed the Chapter 18 petition” and on November 7, 2006, he gave the Lodge a cashier’s check for the full amount of the arrearage, which the Lodge rejected. In support of this argument, Penick quotes Edwards v. McCord, 461 So.2d 1319 (Ala.1984), for the general proposition that “ ‘[t]he law is settled in Alabama that a party who has, with knowledge of the facts, assumed a particular position in a judicial proceeding is estopped from assuming a position inconsistent to the first one to the prejudice of an adverse party.’ 461 So.2d at 1319 (quoting Russell v. Russell, 404 So.2d 662, 665 (Ala.1981)(emphasis added)).

However, Penick cites no evidence or legal authority to establish that the elements of judicial estoppel are met in this case. See Edwards, 461 So.2d at 1320 (“It is essential, in order to invoke the operation of the legal doctrine of estoppel, that the inconsistent position first asserted must have been successfully maintained.”). In particular, Penick makes no attempt to demonstrate that he would be prejudiced if the Lodge sought a remedy inconsistent with the Lodge’s claim for monthly payments in Penick’s bankruptcy action, which apparently was dismissed without adjudication of the Lodge’s claim. See generally Edwards, 461 So.2d at 1320 (“ ‘It may be laid down as a general proposition that, where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.’ ” (quoting Davis v. Wakelee, 156 U.S. 680, 689, 15 S.Ct. 555, 39 L.Ed. 578 (1894))); see also Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003) (“ ‘[I]t is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.’ ” (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994))).

F. Promissory Estoppel

Penick argues that, “if Leo Math knew [that the Lodge was] not going to give the thirty-days right to cure and Pen-ick unknowingly expected the thirty-days right to cure and relied on it, then the Lodge is estopped from asserting the nonexistence of the thirty-day right to cure.” In support of his argument, Penick cites no law other than the following general proposition:

“ ‘An estoppel ... has three important elements. The actor, who usually must have knowledge of the true facts, communicates something in a misleading way, either by words, conduct or silence. The other relies upon that communication. And the other would be harmed materially if the actor is later permitted to assert any claim inconsistent with his earlier conduct.’ ”

Mazer v. Jackson Ins. Agency, 340 So.2d 770, 773 (Ala.1976) (quoting Dobbs, Remedies § 2.3 (1973)).

Penick cites no evidence indicating or legal authority to support his bare assertion that the general proposition cited above applies in this case. For example, he cites no evidence indicating that he relied on Leo Math’s representations regarding the right to cure any default. His unsworn arguments are not evidence. Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 937 So.2d 1018, 1026 (Ala.2006) (“Argument of counsel is not evidence.”); American Nat’l Bank & Trust Co. of Mobile v. Long, 281 Ala. 654, 656, 207 So.2d 129, 132 (1968) (noting that an “unsworn statement of counsel was not evidence”); and Ex parte Russell, 911 So.2d 719, 725 (Ala.Civ.App.2005) (“The unsworn statements, factual assertions, and arguments of counsel are not evidence.” (citing Singley v. Bentley, 782 So.2d 799, 803 (Ala.Civ.App.2000))).

In short, Penick’s promissory-estoppel argument consists of nothing more than bare citations to generic legal principles, and he has made no meaningful attempt to demonstrate that those legal principles apply to the facts of this case. Therefore, Penick’s promissory-estoppel argument is wholly insufficient to sustain a reversal of the trial court’s judgment. Long v. Bryant, 992 So.2d 673, 683 (Ala.2008) (“Rule 28(a)(10), Ala. R.App. P., requires that an argument in an appellant’s (or cross-appellant’s) brief contain ‘citations to the cases, statutes, other authorities, and parts of the record relied on.’ ”); Dykes v. Lane Trucking, Inc., 652 So.2d at 251 (“We have unequivocally stated that it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.” (citing Spradlin v. Spradlin, 601 So.2d 76 (Ala.1992))).

G. Duress

Penick argues that the Lodge’s foreclosure action in 2002 was wrongful because, according to the undisputed evidence, the September 17, 2002, notice of foreclosure did not inform Penick of the amount due or give him 30 days in which to cure the default. Therefore, Penick argues, he executed the modification agreement on October 16, 2002, under economic duress.

“[T]o demonstrate a prima facie case of economic duress, a party must show ‘(1) wrongful acts or threats; (2) financial distress caused by the wrongful acts or threats; (3) the absence of any reasonable alternative to the terms presented by the wrongdoer.’ ” Wright Therapy Equip., LLC v. Blue Cross & Blue Shield of Alabama, 991 So.2d 701, 707 (Ala.2008) (quoting International Paper Co. v. Whilden, 469 So.2d 560, 562 (Ala.1985)). Penick cites no evidence in the record showing that his only reasonable alternative to the allegedly wrongful foreclosure was to sign the modification agreement as it was presented to him. Therefore, Penick has not demonstrated the existence of a genuine issue of material fact as to whether he signed the modification agreement under duress. Long, 992 So.2d at 688 (“Rule 28(a)(10), Ala. R.App. P., requires that an argument in an appellant’s (or cross-appellant’s) brief contain ‘citations to the cases, statutes, other authorities, and parts of the record relied on.’ ”).

H. Creation of a Problematic Cotenancy

Penick argues that the trial court’s judgment, which requires him to sign a deed in lieu of foreclosure, is inappropriate in light of the circumstances of this case. According to Penick, the deed in lieu of foreclosure will create a problematic cotenancy among the Lodge, the City of Birmingham (which holds a first mortgage on the property), and the purchaser at the tax sale. In support of this argument, Penick cites 1631 Second Avenue North, L.L.C. v. Raine, 963 So.2d 71 (Ala.2007). In Raine, “the trial court, after considering the circumstances of this case, held that ‘the court would be causing more problems for these parties than it would solve’ ” if it ordered specific performance of a real-estate contract because such an order would result in a cotenancy among strangers. 968 So.2d at 75 (emphasis added). This Court affirmed the trial court’s judgment, stating: “Given the circumstances of this case, we find no palpable error by the trial court in declining to order specific performance.... ” 963 So.2d at 75-76 (emphasis added).

Penick, however, has not articulated in his brief how specific performance of the agreement in this case could result in a “cotenancy,” much less a “problematic” one. Further, he has not cited any legal authority to support his bare assertion that specific performance will result in a problematic cotenancy. We are unable to address the merits of an Penick’s argument regarding the creation of a “problematic cotenancy” because he has failed to articulate that argument, and he presents no authority in support of it. See Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251, 253 (Ala.1985).

I. Ejectment Count

Penick argues that summary judgment was not proper on the Lodge’s ejectment count because, he says, the undisputed evidence demonstrates that the Lodge did not have legal title to or possession of the property at the time it filed this action. Ala. Code 1975, § 6-6-280 (“[T]he complaint [in an ejectment action] is sufficient if it alleges that the plaintiff was possessed of the premises or has the legal title thereto ... and that the defendant entered thereupon and unlawfully withholds and detains the same.”); Atlas Subsidiaries of Fla., Inc. v. Kornegay, 288 Ala. 599, 601, 264 So.2d 158, 161 (1972) (noting that a statutory action in the nature of ejectment exists under two alternatives: “The first such alternative is where the complaint alleges that the plaintiff was possessed of the premises and the defendant entered thereupon and unlawfully withholds and detains the same. The other alternative is where the complaint alleges that the plaintiff has the legal title to the lands and the defendant entered thereupon and unlawfully withholds and detains the same.”); see also Cadle Co. v. Shabani, 950 So.2d 277, 279 (Ala.2006) (“[T]o maintain an action for ejectment, a plaintiff must allege either possession or legal title ....”).

The Lodge argues, without citation to legal authority, that, at the time the action was filed, it held an equitable title to the property that was superior to Penick’s legal title. Without citing legal authority, the Lodge further argues that proof that the Lodge held a superior equitable title at the time it filed the complaint for ejectment, coupled with proof of an immediate right to possession, is sufficient to entitle the Lodge to an order of ejectment. Butler, 871 So.2d at 20 (“ ‘[I]t is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undeli-neated general propositions not supported by sufficient authority or argument.’ ” (quoting Dykes, 652 So.2d at 251)).

It is undisputed that, at the time the trial court entered the summary judgment, the Lodge did not have possession of, or legal title to, the property. Accordingly, the trial court’s judgment in favor of the Lodge on the ejectment count is due to be reversed.

J. Other Arguments

We find no merit in any of Penick’s remaining arguments, which he fads to support with citation to the record or sufficient legal authority.

IV. Conclusion

For the reasons stated above, the trial court’s summary judgment on the ejectment count is reversed. In all other respects, the judgment of the trial court is affirmed. The case is remanded to the trial court for further proceedings consistent with this opinion.

APPLICATION OVERRULED; OPINION OF NOVEMBER 13, 2009, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

SMITH, PARKER, and SHAW, JJ„ concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

As to the issue of the Lodge’s capacity to sue, the primary focus of Henry Pen-ick’s argument is whether the Lodge is an Alabama corporation, as opposed to a foreign corporation. The reasoning aptly employed in response by the main opinion is applicable, according to the main opinion, “[rjegardless of whether the Lodge is a corporation, an unincorporated association, or some other kind of entity,” 46 So.3d at 425. Penick’s brief contains no meaningful challenge (and no citation of authority in opposition) to the proposition that the Lodge is a legal entity of some sort (i.e., that it has a legal existence) that has the capacity to sue and to hold title to the real property that is the object of its action.

I also note that the main opinion concludes its discussion of the issue of the legal existence of the Lodge and its capacity to sue as follows: “In accordance with Rule 9(a), [Ala. R. Civ. P.,] the burden was on Penick, not the Lodge, to assert the capacity-to-sue issue. Penick has provided no evidence and no legal authority to establish that the Lodge lacks capacity to sue.” 46 So.3d at 427. I agree that Rule 9(a), Ala. R. Civ. P., places the burden, as to pleading, on Penick. I do not read the main opinion as deciding whether, after a defendant makes the specific averment required by Rule 9(a) and supplies “such supporting particulars as are peculiarly within [its] knowledge,” it has the burden of proving a negative regarding the opposing party, i.e., that the opposing party is not a legal entity. It is enough for purposes of deciding the present appeal that in his brief to this Court, Penick, as the appellant, makes no meaningful argument (and cites no legal authority) for the proposition that the Lodge is not a legal entity of some sort with capacity to sue.

      . Penick represents himself in this action.

      . Penick is a member of the Lodge.

      . The City of Birmingham holds a first mortgage on Penick’s law-office property.

      . The description in the original mortgage of the mortgaged property was incorrect. A corrected mortgage with the proper description of the property was recorded on August 11, 1991.

      . The record does not include a document dated October 26, 2006, making such a request.

      . The record does not clearly indicate whether the trial court expressly ruled on Penick's motion to dismiss.

      . The Lodge’s counsel argue — without supporting evidence — that the Lodge was incorporated in 1900 as the "Most Worshipful Grand Lodge of Free & Accepted Ancient York Masons of the United States of North America — colored.” However, " ‘[m]otions and arguments of counsel are not evidence.’ ” Fountain Fin., Inc. v. Hines 788 So.2d 155, 159 (Ala.2000) (quoting Williams v. Akzo Nobel Chems., Inc., 999 S.W.2d 836, 845 (Tex. App.1999)).

      . Section 10-2B-15.02(a) provides:
      "A foreign corporation transacting business in this state without a certificate of authority ... may not maintain a proceeding in this state without a certificate of authority. All contracts or agreements made or entered into in this state by foreign corporations prior to obtaining a certificate of authority to transact business in this state shall be held void at the action of the foreign corporation or by any person claiming through or under the foreign corporation by virtue of the contract or agreement....”

      . See Dennis v. Magic City Dodge, Inc., 524 So.2d 616, 618 (Ala.1988) (noting that capacity to sue is " ‘a party’s personal right to come into court, and should not be confused with the question of whether a party has an enforceable right or interest or is the real party in interest' ” (quoting 6 C. Wright & A. Miller, Federal Practice and Procedure § 1559 (1971))); see also Moseley, 457 So.2d at 969 (noting that the defense of lack of capacity is waived unless specifically asserted by the party seeking to raise the issue).

      . See Rule 8, Ala. R. Civ. P., Committee Comments on 1973 Adoption ("Rule 8 is expressly intended to repudiate the long standing doctrine in Alabama of construing the pleadings strictly against the pleader, when ruling on demurrer.”).

      . See Shepherd, 233 Ala. at 323, 171 So. at 910:
      "Ground (d) of the demurrer was well taken. The averment that the mortgage and notes ‘were duly transferred and assigned on December 15, 1927, by the said Wilmert H. Carroll to Wm. D. Jelks [the mortgagee], as shown by transfer recorded in the Probate Office of Jefferson County,’ when construed most strongly against the pleader, is not an affirmative averment that said mortgage and notes were duly transferred so as to vest in said Jelks the title or property in said chose in action, but that they appear to have been so transferred by reference to said recorded assignment, which might be efficacious or not to vest such title.”

      . See Rule 7(c), Ala. R. Civ. P. ("Demurrers, Pleas, etc., Abolished. Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used.”); Rule 8(a), Ala. R. Civ. P. ("A pleading which sets forth a claim for relief ... shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks.”); Rule 8(c), Ala. R. Civ. P. ("Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively ... failure of consideration, ... payment, ... and any other matter constituting an avoidance or affirmative defense.”); Rule 8(e), Ala. R. Civ. P. ("Pleading to Be Concise and Direct; Consistency. ... Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.”); Rule 8(f), Ala. R. Civ. P. ("Construction of Pleadings. All pleadings shall be so construed as to do substantial justice.”); Rule 9(c), Ala. R. Civ. P. ("In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.” (emphasis added)); and Rule 11, Ala. R. Civ. P. ("Except when otherwise specifically provided by rule or statute, pleadings, motions, or other papers need not be verified or accompanied by affidavit.... The signature of an attorney constitutes a certificate by the attorney ... that to the best of the attorney’s knowledge, information, and belief there is good ground to support it.... ”).

      . Although not argued by the parties, and therefore not relied upon here, paragraph 12 of the original mortgage provides: "Remedies Cumulative. All remedies provided in this Mortgage are distinct and cumulative to any other right or remedy under this Mortgage or afforded by law or equity, and may be exercised concurrently, independently, or successively.”

      . Penick alleges that, under Webb v. Globe Securities Co., 203 Ala. 226, 82 So. 476 (1919), the burden rests on the Lodge, as the mortgagee, to make a prima facie showing of the absence of duress. However, Webb's pre-Alabama Rules of Civil Procedure holding as to the burden on the issue of duress is obsolete. See, e.g., Rule 8(c), Ala. R. Civ. P. (listing "duress” as an affirmative defense).