author: WOODALL, Justice. MURDOCK, Justice

text:
    Ex parte WATER WORKS AND SANITARY SEWER BOARD OF the CITY OF MONTGOMERY. (In re Alabama Insurance Guaranty Association v. Water Works and Sanitary Sewer Board of the City of Montgomery).
    1101133.
    Supreme Court of Alabama.
    Feb. 10, 2012.
    Rehearing Denied April 13, 2012.
    Robert E. Sasser, Patrick L.W. Sefton, and Timothy J. Gallagher of Sasser, Sef-ton, Tipton & Davis, P.C., Montgomery, for petitioner.
    Howard K. Glick of Simpson, McMahan, Glick & Burford, PLLC, Mountain Brook, for respondent.
   WOODALL, Justice.

The Alabama Insurance Guaranty Association (“AIGA”) sued the Water Works and Sanitary Sewer Board of the City of Montgomery (“the Board”), seeking, among other things, to recover money it had paid on behalf of the Board on a workers’ compensation claim filed by one of the Board’s employees. AIGA and the Board each moved for a summary judgment. The circuit court granted the Board’s motion and entered a judgment limiting AIGA’s recovery to the payments it had made on the workers’ compensation claim during the two years immediately preceding the filing of the action and denying AIGA’s request for attorney fees. AIGA appealed to the Court of Civil Appeals.

The Court of Civil Appeals reversed the circuit court’s judgment, concluding that AIGA’s claims were subject to a six-year statute of limitations and that, therefore, the circuit court had erred in limiting AIGA’s recovery to payments made within two years of the filing of the action. The Court of Civil Appeals remanded the case for the circuit court to reassess the damages award and to consider further AIGA’s claim for attorney fees. This Court granted certiorari review to determine, as a matter of first impression, which statute of limitations — the two-year or the six-year— applies to AIGA’s claims. We affirm the Court of Civil Appeals’ judgment.

In 2001, Edward Batson, an employee of the Board, was injured in a workplace accident. At the time of the accident, the Board had workers’ compensation insurance through Legion Insurance Company (“Legion”). Legion was a member insurer of AIGA, which is “a nonprofit, unincorporated legal entity,” § 27-42-6, Ala.Code 1975, established under the AIGA Act, § 27-42-1 et seq., Ala.Code 1975. The purpose of the AIGA Act is “to provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay in payments and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies and to provide an association to assess the cost of such protection among insurers.” § 27-42-2, Ala.Code 1975.

In July 2003, Legion was declared insolvent and, pursuant to the AIGA Act, Bat-son’s workers’ compensation claim was forwarded to AIGA. In November 2003, the Board and Batson settled Batson’s claim. Under the terms of the settlement, AIGA, on behalf of the Board, paid Batson $40,000 and agreed to cover Batson’s future medical bills related to the treatment of his on-the-job injury. Prior to the filing of the underlying action in 2009, AIGA had paid $49,135.61 with regard to Batson’s claim.

Under the AIGA Act, AIGA has “the right to recover from a high net worth insured all amounts paid by [AIGA] to or on behalf of such insured, whether for indemnity, defense, or otherwise.” § 27-42-11(e), Ala.Code 1975. The Act defines a “high net worth insured” as

“[a]ny insured whose net worth exceeds twenty-five million dollars ($25,000,000) on December 31 of the year prior to the year in which the insurer becomes an insolvent insurer; provided that an insured’s net worth on that date shall be deemed to include the aggregate net worth of the insured and all of its subsidiaries and affiliates as calculated on a consolidated basis.”

§ 27-42-5(7), Ala.Code 1975.

AIGA states that, on October 7, 2003, it sent a letter to the Board advising it that Legion was insolvent and that AIGA had taken over Batson’s claim. AIGA also informed the Board that, pursuant to the AIGA Act, the Board had an obligation to provide AIGA information regarding the Board’s net worth as of December 31, 2002, and that, if its net worth exceeded $25 million, AIGA would be entitled to reimbursement of payments made on behalf of the Board in relation to Batson’s workers’ compensation claim. The Board did not respond to AIGA’s letter.

On November 10, 2003, AIGA sent the Board a second letter, again requesting information regarding the Board’s net worth. The Board received the letter but did not respond to the request. On November 25, 2003, the Board and Batson filed the aforementioned settlement agreement with the Montgomery Circuit Court. On January 28, 2004, AIGA faxed a copy of the November 10 letter to the Board, again requesting information regarding the Board’s net worth as of December 31, 2002. AIGA alleges that the fax was received by the Board but that the Board again failed to respond. For all that appears, the Board did not respond to AIGA’s requests until August 2009.

Effective August 1, 2009, the Alabama Legislature amended the AIGA Act, adding, among other things, the following provision:

“(g) [AIGA] shall establish procedures for requesting financial information from insureds and claimants on a confidential basis for purposes of applying sections concerning the net worth of insureds or first party and third party claimants, subject to such information being shared with any other association similar to [AIGA] and the liquidator for the insolvent insurer on the same confidential basis. If the insured or claimant refuses to provide the requested financial information, [AIGA] may deem the net worth of the insured or claimant to be in excess of twenty-five million dollars ($25,000,000) at the relevant time.”

§ 27-42-11(g), Ala.Code 1975. In August 2009, the Board informed AIGA that its net worth had exceeded $25,000,000 at the relevant time.

After receiving the Board’s net-worth information, AIGA determined that the Board was a high-net-worth insured for the purposes of the AIGA Act and sent the Board a demand for reimbursement pursuant to § 27-42-11. The Board refused to reimburse AIGA, arguing that the statute of limitations on AIGA’s claim had run.

AIGA filed a declaratory-judgment action in the Montgomery Circuit Court, seeking to enforce its right to reimbursement. AIGA also requested that the circuit court

“determin[e] ... each party’s rights, duties and obligations under the AIGA Act with respect to the following matters: the insurance policy issued to the Board by Legion; the claims paid by AIGA to Batson on behalf of the Board; the Board’s willful noncompliance with the AIGA’s requests for net worth information, and its refusal to reimburse the AIGA; and, AIGA’s entitlement to attorneys’ fees.”

AIGA’s brief, at 16-17.

The Board moved the circuit court for a summary judgment, arguing that AIGA’s claims were subject to a two-year statute of limitations and, therefore, that any right to reimbursement AIGA might have would be limited to payments made within two years of the filing of the declaratory-judgment action. The Board also argued that the reimbursement provision in the AIGA Act was unconstitutional and that AIGA was not entitled to attorney fees.

AIGA filed an opposition to the Board’s summary-judgment motion and a cross-motion for summary judgment, arguing that its claims were subject to a six-year statute of limitations and that, in any event, the right to reimbursement had not accrued until the Board disclosed its net-worth information in August 2009. The Board filed a reply to AIGA’s cross-motion for a summary judgment, arguing that the right had accrued upon AIGA’s payment to Batson and that AIGA’s claims were barred by the “voluntary payment” doctrine. The Board also reasserted its positions that a two-year statute of limitations applied to AIGA’s claims and that AIGA was not entitled to recover attorney fees. AIGA responded to the Board’s reply, arguing that the voluntary-payment doctrine did not apply to its claims and reasserting its positions that the claims were governed by a six-year statute of limitations and that the right to reimbursement did not accrue until the Board disclosed its net-worth information.

The circuit court held a hearing on the motions for a summary judgment. At the hearing, the circuit court rejected the Board’s arguments that the reimbursement provision in the AIGA Act was unconstitutional and that AIGA’s claims were barred by the voluntary-payment doctrine. After the hearing, the circuit court entered a judgment, awarding AIGA $1,092.08, the amount it had paid with regard to Batson’s workers’ compensation claim during the two years immediately prior to the filing of the declaratory-judgment action. The circuit court dismissed all other claims and ordered each party to bear its own costs, expenses, and attorney fees.

AIGA appealed the circuit court’s judgment to the Court of Civil Appeals. In a per curiam opinion, that court stated:

“The right to recover bestowed by the legislature upon the AIGA under the Act as it read in 2003 is not identified by the Act as a cause of action sounding in tort or in contract, nor is it labeled as a penalty to be imposed by a court upon an insured for having a relatively high net worth. Rather, it is a statutory right permitting the recovery of a liquidated sum: an amount equal to what the AIGA has paid on behalf of a high-net-worth insured. Our review of applicable Alabama law leads us to agree with the AIGA that the six-year statute of limitations provided in Ala.Code 1975, § 6-2-34, upon which the AIGA relies, does indeed apply in this situation. The AIGA’s reimbursement claim is in the nature of a common-law action of debt (as opposed to assumpsit upon an express or implied contract) for the recovery of money provided by law.”

Alabama Ins. Guar. Ass’n v. Water Works & Sanitary Sewer Bd. of the City of Montgomery, 93 So.3d 88, 91 (Ala.Civ.App.2011).

The Court of Civil Appeals concluded that AIGA’s claims had been filed within the applicable six-year period, reversed the circuit court’s judgment, and remanded the case for further proceedings. Judge Bryan dissented from the majority opinion, arguing that the cases relied on in the per curiam opinion were “plainly distinguishable” and that, “[bjecause the AIGA’s claim is not in contract, it is ... governed by the two-year statute of limitations contained in § 6-2-38(0, Ala.Code 1975.” 93 So.3d at 93 (Bryan, J., dissenting).

The Board then petitioned this Court for certiorari review, and we granted the petition to determine, as a matter of first impression, whether a two-year or a six-year statute of limitations applies to AIGA’s claim for reimbursement from the Board.

The Board argues that this Court should apply to AIGA’s claim either the catchall provision of § 6-2-38(l), Ala.Code 1975, or the statute of limitations for statutory penalties found in § 6 — 2—38(j), Ala.Code 1975, both of which provide a two-year statute of limitations. The Board argues that “AIGA’s claim, to the extent that one exists, is solely a creature of statute,” the Board’s brief, at 15, and that “there is no contract between AIGA and the Board requiring repayment of claims previously paid. AIGA is not a signatory to any insurance contract with the Board and nothing in the contract between the Board and [Legion] makes reference to reimbursement of premiums, claims, expenses or any other money paid by AIGA.” Id., at 16.

AIGA argues that “[t]he [Court of Civil Appeals] correctly determined that AIGA’s claim for recoupment of statutory benefits is more closely akin to one for a debt ... than any of the actions falling under the two-year limitations period argued by the Board.” AIGA’s brief, at 35. Further, AIGA argues, in pertinent part, that the claims fall within the scope of § 6-2-34(5), Ala.Code 1975, which provides a six-year statute of limitations for “[a]ctions for the recovery of money upon a loan, upon a stated or liquidated account, or for arrears of rent due upon a parol demise.”

After reviewing the parties’ arguments and the relevant caselaw, we affirm the Court of Civil Appeals’ decision holding that a six-year statute of limitations applies to AIGA’s claim. Section 6-2-34(5) provides that “[a]ctions for the recovery of money upon a ... liquidated account” are governed by a six-year statute of limitations. As the Court of Civil Appeals noted, AIGA’s right to reimbursement is “a statutory right permitting the recovery of a liquidated sum.” 93 So.3d at 97. Therefore, AIGA’s claims related to that right fall within the purview of § 6-2-34(5).

This Court has stated: “ ‘[W]hen a statute creates a liability to pay money and prescribes no particular form of action for its recovery, an action in debt is the appropriate remedy.’ ” Grief v. City of Homewood, 257 Ala. 181, 183, 58 So.2d 120, 122 (1952) (quoting City of Anniston v. Douglas, 250 Ala. 367, 371, 34 So.2d 467, 471 (1948)). See also Strange v. Powell, 15 Ala. 452, 456-57 (1849) (“It is too well settled to be now controverted, that when a statute creates a liability to pay money, but does not prescribe any remedy by which a recovery shall be had, debt is the proper remedy.”). “Under Alabama law, an action of debt is subject to the six-year statute of limitations set forth in § 6-2-34.” Williams v. Deerman, 724 So.2d 18, 21 (Ala.Civ.App.1998). See also City of Anniston v. Dempsey, 253 Ala. 597, 601, 45 So.2d 773, 776 (1950) (a cause of action in debt is subject to a six-year statute of limitations).

For the foregoing reasons, we conclude that the circuit court erred in limiting AIGA’s right to reimbursement to the payments it made in the two years immediately prior to the filing of the underlying action. Therefore, we affirm the Court of Civil Appeals’ judgment reversing the circuit court’s judgment and remanding the case to the circuit court for further proceedings.

AFFIRMED.

STUART, BOLIN, PARKER, SHAW, MAIN, and WISE, JJ., concur.

MURDOCK, J., concurs in the result.

MURDOCK, Justice

(concurring in the result).

I question whether the debt owed by the Water Works and Sanitary Sewer Board of the City of Montgomery (“the Board”) to Alabama Insurance Guaranty Association (“AIGA”) is a debt representing a “stated or liquidated account” so as to be governed by the provisions of § 6-2-34(5), Ala.Code 1975. Irrespective, I do believe that the rights and obligations prescribed by law to AIGA in relation to an insured such as the Board, though subject to additional statutory limitations such as § 27-42-5(7), Ala.Code 1975, are in the nature of contractual rights and obligations so as to be governed by a six-year statute of limitations under § 6-2-34(0 ). See generally § 27-42-8(a)(2), Ala.Code 1975 (stating, in part, that “[AIGA] shall ... [b]e deemed the insurer only to the extent of its obligation on the covered claims and to such extent, subject to the limitations provided in this chapter, shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent including, but not limited to, the right to pursue subrogation recoveries and retain salvage and subrogation recoveries on paid covered claims”); § 27-42-ll(a), Ala.Code 1975 (stating, in part, that “[a]ny person recovering under this chapter shall be deemed to have assigned his or her rights under the policy to [AIGA] to the extent of his or her recovery from [AIGA]”). Cf. Alabama Workmen’s Compensation Self-Insurers Guar. Ass’n, Inc. v. Wilson, 993 So.2d 451, 452 (Ala.Civ.App.2006) (explaining that, because the insolvency fund of the Alabama Workmen’s Compensation Self-Insurers Guaranty Association, Inc., “is statutorily entitled to ‘all defenses of and is ‘subrogated to all rights of [an] insolvent employer’ such as Johnston Industries (see Ala.Code 1975, § 25-5-255(1)), in this opinion we will refer to the Association as ‘the employer’ so as to simplify our summary and our analysis of the case”). I therefore concur in the result reached in the main opinion.

      . The Board and AIGA were jointly represented during the settlement negotiations.

      . The AIGA Act was revised significantly in 2009. The language quoted above is from the revised Act. However, § 27-42-11(d) of the pre-2009 AIGA Act included a substantially similar provision:
      "The [AIGA] shall have the right to recover from the following persons the amount of any covered claim paid on behalf of the person:
      "(1) An insured whose net worth on December 31 of the year immediately preceding the date the insurer becomes an insolvent insurer exceeds twenty-five million dollars ($25,000,000) and whose liability obligations, including obligations under workers' compensation insurance coverages, to other persons are satisfied in whole or in part by the payments.”

      . Section 6-2-38(l), Ala.Code 1975, provides: "All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.”

      . Section 6-2-38(j) provides: "All actions qui tarn or for a penalty given by statute to the party aggrieved, unless the statute imposing it prescribes a different limitation, must be brought within two years.”


source: Caselaw Access Project

author: BRYAN, Judge. BRYAN, Judge.

license: Public Domain

text:
    Daniel Lawrence EDWARDS and Earl Parker v. Melester FORD, Karen Rene Ford, and Melesian A. Ford Allen.
    2100222.
    Court of Civil Appeals of Alabama.
    Aug. 19, 2011.
    Opinion on Overruling of Rehearing Jan. 13, 2012.
    Certiorari Denied April 6, 2012 Alabama Supreme Court 1110509.

      John W. Kelly III of Kelly & Kelly, Selma; Charles H. Sims III, Selma; and Marvin H. Campbell, Montgomery, for appellants.
    Collins Pettaway, Jr., of Chestnut, Sanders, Sanders & Pettaway, L.L.C., Selma, for appellees.
   BRYAN, Judge.

Daniel Lawrence Edwards and Earl Parker appeal from a judgment establishing the location of a boundary line. We dismiss the appeal with respect to Parker and affirm the judgment of the trial court.

Edwards owns a parcel of land that is coterminous with parcels owned by Meles-ter Ford (“Melester”) and Melesian A. Ford Allen (“Melesian”). Edwards’s parcel, which is in Section 17 in Perry County, lies immediately south of Melester’s and Melesian’s parcels, which are in Section 8 in Perry County. Edwards, Melester, and Melesian agree that a segment of the section line separating Section 17 from Section 8 (“the section line”) constitutes their common boundary line; however, they disagree regarding the location of the section line. Edwards contends that the section line is located north of a gravel road that runs generally east and west (“the gravel road”). Melester and Melesian contend that the section line is located south of the gravel road.

Karen Rene Ford (“Rene”) owns a parcel of land located in Section 8 that does not abut Edwards’s parcel. Parker owns a parcel of land located in Perry County that is in the vicinity of the parcels owned by Edwards, Melester, Melesian, and Rene but does not abut any of them.

On October 30, 2001, Melester, Mele-sian, and Rene sued Edwards and Parker, alleging that Edwards and Parker had trespassed on their land and attempted to erect a fence on the parcels of Melester and Melesian. Their complaint stated (1) a claim seeking a judgment declaring the location of the boundary line separating Melester’s and Melesian’s parcels from Edwards’s parcel and (2) a claim of trespass. Edwards and Parker answered the complaint with a general denial and asserted a counterclaim seeking an attorney fee pursuant to the Alabama Litigation Accountability Act (“the ALAA”), § 12-19-270 et seq., Ala.Code 1975.

The trial court, sitting without a jury, received evidence ore tenus on February 19 and July 7, 2004. On December 1, 2006, the trial court entered an order stating that the primary issue for determination was the location of the section line and appointing Glen McCord, a registered land surveyor, to determine the location of the section line. On March 5, 2008, the trial court entered an order stating that McCord had completed his survey, ordering the parties to obtain copies of the survey from McCord, ordering the parties to file any objections to McCord’s survey on or before March 31, 2008, and scheduling a final hearing for April 9, 2008. McCord’s survey depicted the section line as being located south of the gravel road.

When no objection to McCord’s survey was filed in accordance with the trial court’s March 5, 2008, order, the trial court, on November 3, 2008, entered an order stating:

“This matter has been before the Court pending completion of the court ordered survey and the same having been received by the parties and filed with the Court it is hereby ORDERED, ADJUDGED AND DECREED that the survey filed by Mr. Glen McCord is hereby adopted, approved, and incorporated in this order as the official boundary between the parties, them heirs, assignees and/or successors.”

On November 19, 2008, Edwards and Parker filed a motion to vacate the trial court’s November 3, 2008, order. As grounds, Edwards and Parker asserted, among other things:

“1. That Glen McCord has not shown the parties where the property lines are on the ground which is necessary for the benefit of the parties.
“2. That the parties deserve a hearing in this matter and to have the right to take testimony from Glen McCord under oath relative to comparing his survey to the other surveys which have been done in this case.”

On November 24, 2008, Melester, Mele-sian, and Rene objected to Edwards and Parker’s motion to vacate the trial court’s November 3, 2008, order. On January 13, 2009, the parties jointly filed a pleading in which they expressly consented to extend the time for the trial court to rule on Edwards and Parker’s motion to vacate the November 3, 2008, order until the trial court could hear the motion and enter an order ruling on it.

On October 13, 2010, the trial court held an evidentiary hearing regarding Edwards and Parker’s motion to vacate the trial court’s November 3, 2008, order. On October 25, 2010, the trial court entered an order stating:

“This matter came before the Court on [Edwards and Parker’s] motion to set aside the November 3, 2008, order and, having considered the same, it is ORDERED, ADJUDGED AND DECREED said motion is denied and the boundaries established by the survey of Mr. Glen McCord shall be marked and set as the identifying lines.”

On November 29, 2010, Edwards and Parker appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Initially, we note that the judgment of the trial court did not expressly rule on the trespass claim of Melester, Melesian, and Rene or the ALAA counterclaim of Edwards and Parker. We also note that Parker concedes in his brief to this court that he does not own an interest in any of the parcels of land affected by the trial court’s determination regarding the location of the boundary line. Although the parties have not raised the issue whether this court has jurisdiction over the appeal, “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’” Stone v. Haley, 812 So.2d 1245, 1245-46 (Ala.Civ.App.2001) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997)).

The absence from the trial court’s judgment of an express ruling regarding the trespass claim and the ALAA counterclaim raises an issue regarding this court’s jurisdiction because, “[o]rdinarily, only a final judgment will support an appeal” and “[a]n order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is generally not final.” Stone, 812 So.2d at 1246. However, in Hingle v. Gann, 368 So.2d 22, 24 (Ala.1979), the supreme court treated a judgment that established a boundary line but did not expressly rule on the parties’ trespass claims as impliedly denying those trespass claims. Accordingly, based on Hingle v. Gann, we treat the judgment of the trial court in the case now before us as having impliedly denied Me-lester, Melesian, and Rene’s trespass claim. Moreover, Alabama courts have held that a trial court’s entry of a judgment without specifically reserving jurisdiction over an ALAA claim constitutes an implied denial of that claim. See McGough v. G & A, Inc., 999 So.2d 898, 903 (Ala.Civ.App.2007). Therefore, in the case now before us, the absence of any mention of Edwards and Parker’s ALAA counterclaim in the trial court’s judgment constituted an implied denial of that counterclaim. Accordingly, we conclude that the judgment of the trial court is a final, appealable judgment.

However, Parker’s concession that he does not own an interest in any of the parcels of land affected by the trial court’s determination regarding the boundary line establishes that he was not aggrieved by that determination. A party that is not aggrieved by a trial court’s judgment lacks standing to appeal from that judgment, and this court lacks jurisdiction over such an appeal. See Buco Bldg. Constructors, Inc. v. Mayer Elec. Supply Co., 960 So.2d 707, 711-12 (Ala.Civ.App.2006). Accordingly, we conclude that, because Parker was not aggrieved by the trial court’s determination regarding the boundary line, we lack jurisdiction over the appeal insofar as he purports to appeal that determination, and, therefore, we dismiss the appeal with respect to Parker.

We will now consider Edwards’s argument that the trial court erred in determining the boundary line. In Todd v. Owens, 592 So.2d 534, 535 (Ala.1991), the supreme court stated the applicable standard of review:

“ ‘ “[A] judgment establishing a boundary line between coterminous landowners on evidence submitted ore tenus is presumed to be correct and need only be supported by credible evidence. If so supported, the trial court’s conclusions will not be disturbed on appeal unless plainly erroneous or manifestly unjust.” Tidwell v. Strickler, 457 So.2d 365, 367 (Ala.1984) (citations omitted).’
“Garringer v. Wingard, 585 So.2d 898, 899 (Ala.1991). The presumption of correctness is especially strong in boundary line dispute cases because it is difficult for the appellate court to review the evidence in such cases. Bearden v. Ellison, 560 So.2d 1042 (Ala.1990).”

Edwards argues that the judgment of the trial court establishing the boundary line where it is located on McCord’s survey is not supported by credible evidence and is plainly and palpably erroneous.

During the ore tenus proceeding in 2004, the parties introduced a number of surveys and maps prepared over the years by registered land surveyors. Some of the surveys and maps do not depict the gravel road and, therefore, shed no light on the issue whether the section line is located north or south of the gravel road. Some of the surveys and maps depict the section line as being located north of the gravel road, while others depict the section line as being located south of the gravel road. There was testimony indicating that some of the landmarks used by some of the earlier surveyors in locating the section line have been removed. Presumably because the surveys that had been introduced into evidence during the 2004 ore tenus proceeding were in conflict regarding the location of the section line, the trial court appointed McCord to prepare a survey. The McCord survey depicted the section line as being located south of the road and thus supported Melester and Melesian’s contention regarding the location of the section line. Although Edwards contends on appeal that his questioning of McCord at the October 13, 2010, hearing indicates that McCord’s survey was not reliable, whether McCord’s survey is reliable is a question of fact. In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of the witnesses. Woods v. Woods, 653 So.2d 312, 314 (Ala.Civ.App.1994). McCord testified that his survey was accurate and reliable. Consequently, the trial court, as the sole judge of the facts and of the credibility of the witnesses, could have, and presumably did, find that McCord’s testimony that his survey was accurate and reliable was credible, and this court cannot substitute its judgment for that of the trial court in that regard. See Gladden v. Gladden, 942 So.2d 362, 369 (Ala.Civ.App.2005).

Given the surveys supporting the trial court’s judgment, including the McCord survey itself, we cannot hold that the trial court’s determination regarding the location of the boundary line is either unsupported by credible evidence or plainly erroneous and manifestly unjust. Accordingly, we affirm the judgment of the trial court.

APPEAL DISMISSED AS TO EARL PARKER; AFFIRMED.

PITTMAN and MOORE, JJ., concur.

THOMPSON, P.J., and THOMAS, J., concur in the result, without writings.

On Application for Rehearing

BRYAN, Judge.

At trial, the parties referred to a judgment the Perry Circuit Court had entered in 1996 in a civil action docketed by that court as Eugene Darden v. Eva Smith Edwards, CV-95-15 (“the Darden case”). The judgment entered in the Darden case (“the Darden judgment”) had determined the location of a segment of the section line that was different from the one at issue in the present case. Neither Meles-ter Ford nor Melesian A. Ford Allen were parties to the Darden case.

In his initial brief to this court, Daniel Lawrence Edwards stated:

“Previously an adjacent segment of this section line was adjudicated in Eugene Darden, et al., v. Eva Smith Edwards, et al., Case Number CV-95-15, in the Circuit Court of Perry County, Alabama, and that segment of the section line was established by order of the Circuit Court of Perry County dated September 25, 1996. It was done without prejudice to persons not parties to that case, and does not apply to the 70547 foot segment of the line which is the boundary between Ford and Edwards.

Edwards’s initial brief at pp. 10-11 (emphasis added). Edwards did not argue in his initial brief that the trial court had erred on the ground that it was bound by the judgment in the Darden case and had entered a judgment that was' inconsistent with it. However, in his reply brief to this court, Edwards did make that argument for the first time. On application for rehearing, Edwards argues that we erroneously failed to address that argument in our opinion on original submission. However, “[i]t is a well-established principle of appellate review that we will not consider an issue not raised in an appellant’s initial brief, but raised only in the reply brief.” Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 173 (Ala.2005). Therefore, Edwards’s first argument on application for rehearing has no merit.

Edwards’s second argument on application for rehearing is that this court should have applied the de novo standard of review to his argument that the trial court erred on the ground that it was bound by the judgment in the Darden case and had entered a judgment inconsistent with it. However, Edwards’s second argument has no merit because it erroneously presupposes that we could consider an argument he raised for the first time in his reply brief.

Finally, Edwards cites Walters v. Commons, 2 Port. 38 (Ala.1835), as additional authority for a subargument he made on original submission. On original submission, he argued that the trial court’s judgment was unsupported by the evidence because, he said, he proved that Glen McCord’s survey is inaccurate and unreliable. One of the subarguments he made in support of that argument was (1) that, because the parties agreed that a segment of the section line separating Section 8 from Section 17 in Perry County constituted their common boundary line, the boundary line is a segment of a straight line running east and west between two points that constitute the pertinent corners of those two sections as established by the original survey performed by the United States and (2) that McCord’s survey is inaccurate and unreliable because, Edwards says, it does not depict the section line separating Sections 8 and 17 as a straight line running between the pertinent corners of those two sections as established by the original survey performed by the United States. Walters supports the proposition that the section corners of Sections 8 and 17 were definitively established by the original survey performed by the United States and cannot be altered.

However, our original decision is consistent with Walters. We rejected Edwards’s subargument on original submission because, as we will explain below, there was evidence before the trial court from which it could have found that McCord’s survey depicts the section line separating Sections 8 and 17 as a straight line running east and west between the pertinent section corners as established by the original United States survey.

Because Section 17 is immediately south of Section 8, Section 17 and Section 8 share a common boundary line, which is a section line. The eastern terminus of the section line is a point that constitutes both the southeast córner of Section 8 and the northeast corner of Section 17. The western terminus of the section line is a point that constitutes both the southwest corner of Section 8 and the northwest corner of Section 17. McCord’s survey depicts the eastern terminus of the section line as a monument he describes as an automobile camshaft in the south bank of a creek that is locally accepted as marking the southeast corner of Section 8. His survey depicts the western terminus of the section line as a monument he describes as a flat iron that is locally accepted as marking the southwest corner of Section 8. His survey depicts the section line as a straight line running from the automobile camshaft to the flat iron on a bearing of South 87 degrees, 4 minutes, 18 seconds West.

Edwards relies on two surveys, one that was prepared for him by a licensed survey- or named Robert H. McMillan and a second one that was prepared for him by a licensed surveyor named Mitchell P. Hayden. McMillan’s survey depicts the eastern terminus of the section line as a monument that he describes as a camshaft in the southerly bank of a ditch that is locally accepted as marking the northeast corner of Section 17. As noted above, the northeast corner of Section 17 is a point that also constitutes the southeast corner of Section 8. Thus, McCord’s and McMillan’s survey both depict a camshaft as the landmark marking the point that constitutes both the southeast corner of Section 8 and the northeast corner of Section 17. Moreover, both McCord’s and McMillan’s surveys depict that camshaft as the eastern terminus of the section line. McMillan’s survey depicts the western terminus of the section line as a monument that he describes as a flat bar that is locally accepted as marking the northwest corner of Section 17. As noted above, the northwest corner of Section 17 is a point that also constitutes the southwest corner of Section 8. Thus, both McCord’s and McMillan’s surveys depict a flat iron or bar as the landmark marking the point that constitutes both the southwest corner of Section 8 and the northwest corner of Section 17. Moreover, both McCord’s and McMillan’s surveys depict that flat bar or iron as the western terminus of the section line.

Hayden’s survey depicts the eastern terminus of the section line as a monument that he describes as a camshaft accepted as the southeast corner of Section 8. Hayden’s survey depicts the western terminus of the section line as a one-inch flat bar accepted as the southwest corner of Section 8. Moreover, Hayden testified that, by using global-positioning-satellite technology, he had verified that the camshaft accurately marked the location of the southeast corner of Section 8 as established by the original survey performed by the United States and that the one-inch flat bar accurately marked the location of the southwest corner of Section 8 as established by the original survey performed by the United States. Hayden also testified that his survey, McMillan’s survey, and McCord’s survey all depicted the same camshaft as the eastern terminus of the section line and that his survey, McMillan’s survey, and McCord’s survey all depicted the same flat bar as the western terminus of the section line.

McCord’s survey depicts the section line as a straight line running from the camshaft to the flat bar and depicts the gravel road as being located north of the section line. McMillan’s and Hayden’s surveys depict the section line as a straight line running from the camshaft to the flat bar and depict the gravel road as being located south of the section line.

In this case, the trial court made no specific findings of fact in its judgment.

“[W]hen a trial court makes no specific findings of fact, ‘this Court will assume that the trial judge made those findings necessary to support the judgment.’ Transamerica Commercial Fin. Corp. v. AmSouthBank, N.A., 608 So.2d 375, 378 (Ala.1992). Under the ore tenus rule, “‘appellate courts are not allowed to substitute their own judgment for that of the trial court if the trial court’s decision is supported by reasonable inferences to be drawn from the evidence.” ’ Yates v. El Bethel Primitive Baptist Church, 847 So.2d 331, 345 (Ala.2002) (quoting Ex parte Pielach, 681 So.2d 154,155 (Ala.1996)).”

New Props., L.L.C. v. Stewart, 905 So.2d 797, 799 (Ala.2004).

The evidence described above would support findings by the trial court that McCord’s, McMillan’s, and Hayden’s surveys all depicted the same landmarks as marking the eastern and western termini of the section line and that the location of those landmarks coincided with the location of the pertinent section corners established by the original survey performed by the United States. Moreover, the evidence described above would support a finding that McCord’s survey depicted the section line as a straight line running between those section corners. Furthermore, the trial court, as the finder of fact, was authorized to resolve the conflict between McCord’s survey, on the one hand, and McMillan’s and Hayden’s surveys, on the other, regarding the location of the gravel road in relation to the section line by finding that McCord’s depiction of the gravel road as being located north of the section line was accurate and that McMillan’s and Hayden’s depictions of the gravel road as being located south of the section line were inaccurate. See Woods v. Woods, 653 So.2d 312, 314 (Ala.Civ.App.1994) (“In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of witnesses, and the trial court should accept only that testimony it considers to be worthy of belief.”); Born v. Clark, 662 So.2d 669, 672 (Ala.1995) (“When a trial court, sitting without a jury, hears ore tenus evidence and determines disputed questions of fact, whether those questions come into dispute orally or by the written word, we must apply the ore tenus rule of review, and, under this rule, we must indulge all reasonable presumptions in favor of the trial court’s findings.”); accord Yeager v. Lucy, 998 So.2d 460, 463 (Ala.2008) (“ ‘The [ore tenus] rule applies to “disputed issues of fact,” whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence.’ ” (quoting Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000))). Because (1) the findings described above would support the trial court’s determination that McCord’s survey accurately depicted the location of the section line and the segment of the section line that constituted the boundary line separating Edwards’s parcel from Melester’s and Melesiaris parcels and (2) the trial court made no specific findings, we must assume that the trial court made those findings. See New Properties.

Based on the analysis described above, we concluded on original submission that there is no merit to Edwards’s subargument that the trial court’s judgment is not supported by the evidence on the ground that McCord’s survey does not depict the section line separating Sections 8 and 17 as a straight line running between the pertinent section corners established by the original survey performed by the United States. The analysis described above also indicates that the trial court’s judgment is consistent with Walters. Therefore, Edwards’s citation of Walters does not warrant granting his application for rehearing.

Accordingly, we overrule Edwards’s application for rehearing.

APPLICATION OVERRULED.

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

      . Melester, Melesian, and Rene have not cross-appealed the implied denial of their trespass claim. Therefore, the propriety of that ruling is not before us.

      . Edwards and Parker have not argued that the trial court erred in impliedly denying their ALAA counterclaim. Therefore, they have waived that issue. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) ("When an appellant fails to argue an issue in its brief, that issue is waived.”).

      "The Court judgment and order in the Darden case were not admitted into evidence in the instant case but the order was discussed during examination of witnesses, and the trial court did look at the order and was aware of it. However, the surveys attached to the order were admitted into evidence.”


author: THOMAS, Judge.

text:
    Eric DeWayne TAYLOR v. Jerry Wayne NEWMAN, Fidelity and Deposit Company of Maryland, and Wendy Marie Newman.
    2100781.
    Court of Civil Appeals of Alabama.
    Oct. 14, 2011.
    Rehearing Denied Jan. 13, 2012.

      Ralph G. Holberg III and Michael R. Holberg of Holberg & Holberg, P.C., Mobile, for appellant.
    Ernest Eugene Warhurst, Jr., Mobile; Sarah Rutledge, Mobile; and Kay Milam, Huntsville, for appellees.
   THOMAS, Judge.

Eric DeWayne Taylor appeals from the Mobile Probate Court’s denial of his motion to set aside previously entered orders of the probate court. We affirm.

Jimmy Patrick Newman died intestate on March 11, 2005, as the result of an automobile accident. On March 17, 2005, Jerry Wayne Newman, Jimmy’s brother, petitioned the probate court for letters of administration for Jimmy’s estate (“the estate”). The probate court granted Jerry’s petition and issued letters of administration for the estate appointing Jerry as administrator on March 23, 2005. The probate court included in the letters of administration a provision restricting Jerry from settling any litigation on behalf of the estate without the approval of the probate court; the estate had filed a wrongful-death action against the other party involved in the automobile accident in which Jimmy had been killed. Notice of the issuance of letters of administration was published in the Mobile Press Register newspaper for three consecutive weeks, as required by § 43-2-61(2), Ala. Code 1975. Jerry filed an inventory of the estate with the probate court on April 4, 2005; the inventory did not include the wrongful-death action, which had not yet reached a conclusion.

On May 15, 2005, Jerry moved the probate court to approve the settlement of the wrongful-death action; Jerry attached to his motion a listing of Jimmy’s “next of kin and heirs at law,” which listed Wendy Marie Newman, who was Jimmy’s daughter, along with Jimmy’s three brothers and four sisters. The probate court conducted a hearing on Jerry’s motion, at which it heard testimony from Jerry and Wendy. Jerry testified that he had retained an attorney to represent the estate in the wrongful-death action and that, through that attorney’s negotiations, the estate had reached a proposed settlement with the liable party for the policy limits of its insurance — $1,000,000. Jerry testified that he desired for the probate court to approve the settlement. The court questioned the estate’s counsel regarding his fees and expenses relating to the settlement of the wrongful-death action, which amounted to $405,448.88, leaving $594,551.12 to be distributed to the estate. Wendy testified that she desired for the probate court to approve the settlement of the wrongful-death action. Wendy also testified that she had no knowledge of any other heirs. The probate court further questioned Wendy regarding the existence of other heirs:

“THE COURT: [Wendy], let me just confirm on the record here. Your father did not die with a surviving spouse, did he?
“[WENDY]: Not that I’m aware of.
“THE COURT: Okay, and you were his only child?
“[WENDY]: That I know of, yes.”

At the conclusion of the hearing, the probate court approved the settlement of the wrongful-death action.

On May 4, 2006, Jerry petitioned the probate court for a final settlement of the estate and to discharge Jerry as the administrator of the estate. In his petition, Jerry asserted that more than 6 months had passed since the probate court issued letters of administration, that it had been more than 5 months since the publication of notice of the issuance of letters of administration, and that more than 30 days had passed since actual notice had been given to all known creditors. Jerry further asserted that no claims had been filed against the estate and that all the assets of the estate had been delivered to Wendy, who, Jerry alleged, was the only heir of Jimmy. Jerry attached to his petition an affidavit of Wendy, in which she stated that she consented to the final settlement of the estate and that she had received all the assets of the estate. The probate court granted Jerry’s petition on May 8, 2006, closing the estate and discharging Jerry as the administrator of the estate.

On February 21, 2011, Taylor filed a motion to set aside the probate court’s order discharging Jerry as the administrator of the estate and to set aside its order approving the settlement of the wrongful-death action; Taylor’s motion indicated that it was brought under Rule 60(b), Ala. R. Civ. P. Taylor claimed in his motion that he was an heir of Jimmy because Jimmy was Taylor’s father. Taylor further claimed:

“Jerry Wayne Newman and Wendy Marie Newman withheld or suppressed from Eric DeWayne Taylor the fact that Letters of Administration were issued on [Jimmy’s] Estate, that a claim for [Jimmy’s] wrongful death was pursued, that there was a motion and hearing on a proposed $1,000,000.00 settlement, that settlement funds were received, that this Court approved said settlement, that all the net funds were distributed only to Wendy Marie Newman, and that Jerry Wayne Newman filed a petition on Final Settlement which was granted by this Court.”

Taylor alleged that Jerry and Wendy had falsely represented to the probate court that Wendy was Jimmy’s only heir and that Jerry and Wendy knew or should have known that Taylor was also Jimmy’s heir. Taylor alleged that the probate court’s settlement of the estate was based on the allegedly false representations of Jerry and Wendy. Taylor requested that the probate court set aside its order dismissing Jerry as the administrator of the estate and its order approving the wrongful-death settlement, require Wendy to return half of the wrongful-death settlement proceeds to the probate court, and distribute those proceeds to Taylor. Taylor also requested an award against Jerry, Wendy, and Fidelity and Deposit Company of Maryland for an unstated amount of compensatory damages, punitive damages, and attorney fees.

The probate court held a hearing on Taylor’s motion on March 30, 2011, at which it heard testimony from Jerry, Wendy, Taylor, and Mary Newman, who is Taylor’s mother. Mary testified that she became pregnant by Jimmy when she was 16 years old and that Jimmy had moved away not knowing that she was pregnant. According to Mary, Jimmy returned when Taylor was approximately 10 months old; Jimmy and Mary married in August 1984, when Taylor was approximately 1 year old. Mary testified that Jimmy referred to Taylor as his son and held himself out to the community as Taylor’s father. Mary also testified that Jerry knew that Jimmy and Mary had married and that she had a child. Mary further testified that she had told Jerry that Taylor was Jimmy’s son; however, Mary stated that she did not know whether Jimmy had represented to Jerry or other members of Jimmy’s family that Taylor was his son. According to Mary, she also had told other members of Jimmy’s family that Taylor was Jimmy’s son. Mary and Jimmy divorced in April 1987. Mary testified that she had infrequent encounters with Jimmy after the divorce. According to Mary, Jimmy approached her and Taylor at a gas station when Taylor was 15 years old and introduced himself to Taylor as his father. Mary did not recall any conversations she had had with Jerry from the time that she and Jimmy divorced in 1987 until after Jimmy’s death in 2005.

According to Mary, Wendy, who is older than Taylor, also knew of Taylor’s existence because, Mary stated, Jimmy had exercised weekend visitation with Wendy during the time that Jimmy and Mary were married. Mary stated that after she and Jimmy had divorced she had once encountered Wendy at a supermarket where Wendy was then working and that, at that time, she had asked Wendy whether she remembered Taylor. According to Mary, Wendy asked whether Taylor was Mary’s son, to which Mary responded that Taylor was Wendy’s brother. Mary also stated that she had had conversations with Jimmy’s brothers and sisters in which Mary had represented that Taylor was Jimmy’s son.

Mary testified that she heard about Jimmy’s death in 2005, shortly after Jimmy’s funeral. Mary stated that she was unaware at that time of the probate proceedings or the wrongful-death action. According to Mary, she first learned of the settlement in the wrongful-death action in January 2010, when she was informed of the settlement by one of Jimmy’s sisters. Mary testified that she telephoned Jerry a few months later and that Jerry stated to Mary that he did not know that Taylor was Jimmy’s son or that Jimmy and Mary had actually been married.

Taylor testified that he was 26 years old at the time of the hearing on his motion. According to Taylor, Mary informed him of Jimmy’s death in 2005. Taylor testified that he had not had a close relationship with Jimmy. Taylor stated that, like Mary, he also recalled the conversation with Jimmy at the gas station; Taylor stated that he did not know Jimmy’s identity until Jimmy told him that Jimmy was his father. Taylor testified that he had not met Jerry until 2010, when they underwent testing to determine if Jimmy was Taylor’s father. According to Taylor, he did not find out about the probate-court action or the wrongful-death settlement until 2010, when he was informed by Mary. After finding out about the wrongful-death settlement in 2010, Taylor stated that he and Mary retained counsel and initiated a paternity action in the juvenile court to legally establish Jimmy’s paternity of Taylor. Taylor stated that the paternity test had proven that Jimmy was his father.

Jerry testified that he did not know Mary well. According to Jerry, he knew that Jimmy and Mary had been involved in a relationship and that the two had lived together; however, he stated that he did not know that they had been married. Jerry also testified that Jimmy never told him that Jimmy had a son; according to Jerry, Wendy was the only child that he knew that Jimmy had fathered. Jerry testified that he did not reeall any conversations with Mary in which she told him that Taylor was Jimmy’s child until Mary telephoned him in 2010. Jerry also testified that none of his sisters had told Jerry that he should have known that Taylor was Jimmy’s child. When pressed by Taylor’s counsel regarding whether he knew that Jimmy had any children other than Wendy, Jerry responded:

“No, or may have more. I don’t know. Nobody has ever told me this young man is my brother’s son. I accept that fact. I did not know he existed. His name was not Newman. His mother never associated with us, even though she said she did way back when, I assume she had seen my brothers and sisters all along in the store, you know. I don’t know that I never met her. But, no, I did not know he had any other' children other than Wendy or anymore for that matter.”

Jerry testified that he did not investigate all of Jimmy’s former relationships to determine whether Jimmy had any additional children; Jerry stated that Wendy was the only child of Jimmy’s of which he had any knowledge.

Wendy testified that she was born in April 1978 and that Jimmy was her father. Wendy testified that she did not recall spending time with Mary and that she had not had much involvement with the New-mans. Wendy stated that she did not know whether Jimmy was at one time married to Mary. Wendy further stated that she did not recall seeing Mary before and that she had never met Taylor; according to Wendy, she did not recall the conversation in the supermarket of which Mary had testified. Wendy testified that she had not had a close relationship with Jimmy and that Jimmy had never told her that he had any other children. Wendy also testified that neither her mother nor Jimmy’s sisters had mentioned the existence of any other children.

On April 5, 2011, the probate court entered a judgment denying Taylor’s motion. Taylor appealed to the Alabama Supreme Court. Our supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

“It is well established that the decision to grant or to deny relief pursuant to a Rule 60(b) motion is discretionary with the trial court. In reviewing the trial court’s ruling on such a motion, we cannot disturb the trial court’s decision unless the trial court abused that discretion in denying the motion.”

DaLee v. Crosby Lumber Co., 561 So.2d 1086, 1089 (Ala.1990) (citations omitted). However,

“ ‘[t]he standard of review on appeal from the denial [or granting] of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Satterfield, v. Winston Industries, Inc., 553 So.2d 61 (Ala.1989).’ ”

Orix Fin. Servs., Inc. v. Murphy, 9 So.3d 1241, 1244 (Ala.2008) (quoting Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991)).

Taylor brought his action in the probate court by filing a motion under Rule 60(b). On appeal, he characterizes his motion as falling under Rule 60(b)(4), Rule 60(b)(6), and the provision allowing an independent action under Rule 60(b)(3). “Rules 59, 59.1, and 60 of the Alabama Rules of Civil Procedure apply in probate court proceedings pursuant to § 12-13-12, Ala.Code 1975.” McGallagher v. Estate of DeGeer, 934 So.2d 391, 399 n. 2 (Ala.Civ.App.2005). Section 12-13-12 provides that the “provisions of this code in reference to ... pleading and practice, judgments and orders in the circuit court ... and of enforcing orders and judgments” apply to the. probate court only “in the absence of express provision to the contrary.”

Taylor brought this action asserting, among other claims, a claim under Rule 60(b)(3), which allows a court to entertain an independent action seeking to have a judgment or order set aside on the basis of fraud if that independent action is brought within three years of the date of the entry of the judgment or order. Rule 60(b) also allows for the tolling of the time in which to file an independent action based on fraud pursuant to § 6-2-3, Ala. Code 1975. However, the Probate Code, in § 43-8-5, Ala.Code 1975, provides:

“Whenever fraud has beén perpetrated in connection with any proceeding or in any statement filed under this chapter or if fraud is used to avoid or circumvent the provisions or purposes of this chapter, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person (other than a bona fide purchaser) benefitting from the fraud, whether innocent or not. Any proceeding must be commenced within one year after the discovery of the fraud or from the time when the fraud should have been discovered, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of the commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate.”

The Commentary to § 43-8-5 notes that “[t]his is an overriding provision that provides an exception to the procedures and limitations provided in this act or otherwise in the Code of Alabama.” Thus, the express provision in § 43-8-5 displaces the provisions of Rule 60(b)(3), which would otherwise be applicable pursuant to § 12-13-12, with regard to the time limitations for the filing of an independent action challenging a judgment or order of the probate court based on an allegation of fraud.

Although Jerry and Wendy raise the issue of the statute of limitations on appeal, albeit with regard to the tolling provisions in § 6-2-3 rather than the limitations period in § 43-8-5, they did not raise the issue of the statute of limitations at any time in the probate court.

“The statute of limitations is specifically listed as an affirmative defense in A[la]. R. Civ. P. 8(c); and the rule requires that it be specially pleaded. Once an answer is filed, if an affirmative defense is not pleaded, it is waived. Robinson v. [Morse], 352 So.2d 1355, 1357 (Ala.1977). The defense may be revived if the adverse party offers no objection (Bechtel v. Crown [Central ] Petroleum Corp., 451 So.2d 793, 796 (Ala.1984)); or if the party who should have pleaded it is allowed to amend his pleading (Piersol v. ITT [Phillips ] Drill Division, Inc., 445 So.2d 559, 561 (Ala.1984)); or if the defense appears on the face of the complaint (cf., Sims v. Lewis, 374 So.2d 298, 302 (Ala.1979); and Williams v. McMillan, 352 So.2d 1347, 1349 (Ala.1977)).”

Wallace v. Alabama Ass’n of Classified Sch. Emps., 463 So.2d 135, 136-37 (Ala.1984). Because Jerry and Wendy never raised the issue of the statute of limitations in the probate court, they have waived the issue; therefore, we cannot consider whether Taylor’s action was barred by the time limitations provided in § 43-8-5.

On appeal, Taylor presents arguments pertaining to the two types of fraud defined in § 6-5-101, Ala.Code 1975, which provides: “Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.” In Christian v. Murray, 915 So.2d 23, 28 (Ala.2005), our supreme court held that the species of fraud that the legislature intended to be considered in an action brought under § 43-8-5 “must be that kind of fraud that would allow relief for ‘fraud on a court.’ ” The Christian court noted:

“ ‘This Court has defined “fraud upon the court” as that species of fraud that defiles or attempts to defile the court itself or that is a fraud perpetrated by an officer of the court, and it does not include fraud among the parties, without more.’ Waters v. Jolly, 582 So.2d 1048, 1055 (Ala.1991) (citing Brown v. Kingsberry Mortgage Co., 349 So.2d 564 (Ala.1977), and Spindlow v. Spindlow, 512 So.2d 918 (Ala.Civ.App.1987)). Black’s Law Dictionary 686 (8th ed.2004) defines ‘fraud on the court’ as follows: ‘In a judicial proceeding, a lawyer’s or party’s misconduct so serious that it undermines or is intended to undermine the integrity of the proceeding.’ See Ex parte Free, 910 So.2d 753 (Ala.2005). The cases in which fraud on the court has been found, for the most part, have been cases in which there was ‘the most egregious conduct involving a corruption of the judicial process itself,’ such as the bribery of a judge or the employment of counsel to improperly influence the court. 11 Charles A. Wright et al., Federal Practice & Procedure Civ.2d § 2870 (1995).”

915 So.2d at 28. Therefore, we will consider only whether the probate court abused its discretion in determining that Jerry and Wendy had not committed fraud on the court and, therefore, erred in denying Taylor’s motion.

The probate court heard conflicting evidence regarding whether Jerry knew that Taylor was Jimmy’s child. Faced with conflicting evidence, the probate court had to determine the credibility of the witnesses and what weight to give each witness’s testimony. This court is not allowed to reweigh the evidence or to determine the credibility of witnesses.

“The Alabama Supreme Court has stated that ‘the law is settled that weighing evidence is not the usual function of an appellate court. This is especially true where ... the assessment of the credibility of witnesses is involved.’ Knight v. Beverly Health Care Bay Manor Health Care Ctr., 820 So.2d 92, 102 (Ala.2001) (citation omitted). Accordingly, appellate courts in this state generally do not review evidence in order to make factual conclusions; instead, they review judgments in order to determine whether the trial court committed reversible error.”

J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1184 (Ala.Civ.App.2007). Jerry and Wendy testified that they had no knowledge that Taylor was Jimmy’s child. It was within the discretion of the probate court to assign greater weight and credibility to their testimony than to the testimony of Mary and Taylor. Because the probate court had sufficient evidence before it to support a determination that neither Jerry nor Wendy had committed fraud on the court with respect to the probate proceedings, we cannot conclude that the probate court abused its discretion when it denied Taylor’s motion.

Taylor next argues that the probate court erred in denying his motion because, he says, the orders of the probate court are void. Taylor argues that the probate court’s orders are void because, Taylor says, Jerry’s failure to give Taylor notice of the probate proceedings deprived the probate court of personal jurisdiction over him.

Section 43-2-61, Ala.Code 1975, prescribes the type of notice that the administrator of an estate must give to those who have claims against the decedent. That section provides:

“Notice, as prescribed in section 43-2-60, must be given:
“(1) By first-class mail addressed to their last known address, or by other mechanism reasonably calculated to provide actual notice, to all persons, firms, and corporations having claims against the decedent, who are known or who are reasonably ascertainable by the personal representative within six months from the grant of letters; and
“(2) By publishing a notice once a week for three successive weeks in a newspaper of general circulation published in the county in which the letters were granted or, if none is published in the county, in the one published nearest to the courthouse thereof or in an adjoining county.”

Taylor argues that Jerry was required to notify Taylor of Jerry’s receipt of letters of administration for the estate by first-class mail, as required by § 43-2-60(1), because, Taylor says, his identity as an heir was reasonably ascertainable.

The question whether Taylor was known or reasonably ascertainable to Jerry or Wendy as an heir is a question of fact. The probate court heard ore tenus evidence concerning whether Jerry or Wendy knew that Jimmy was Taylor’s father.

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Waltman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007). The probate court heard testimony from Jerry that Jimmy had never mentioned to Jerry that he had any children other than Wendy. Jerry also testified that he had had little contact with Mary and that none of his sisters had ever mentioned to him that Taylor was Jimmy’s child. The probate court also heard testimony from Wendy that she had no knowledge of Taylor’s existence or that he was Jimmy’s child. Wendy and Jerry’s testimony was sufficient to support a determination by the probate court that Taylor was not known or reasonably ascertainable to Jerry as Jimmy’s heir. Because Taylor was not known or reasonably ascertainable as an heir, Jerry had no duty to notify Taylor of Jerry’s appointment as administrator of the estate by first-class mail; notification by publication, as allowed in § 43-2-61(2), was sufficient. Accordingly, the probate court did not err when it denied Taylor’s motion insofar as he alleged that the probate court’s earlier orders were void.

Because we find no reversible error, we affirm the probate court’s judgment denying Taylor’s Rule 60(b) motion.

AFFIRMED.

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

      . Taylor attached to his motion a January 27, 2011, judgment of the Mobile Juvenile Court determining that Jimmy was Taylor’s father.

      . Fidelity and Deposit Company of Maryland served as Jerry's surety while he was the administrator of the estate.

      . We note that Taylor's allegations that the challenged probate-court orders are either void or were procured by fraud fall squarely under Rule 60(b)(4) or Rule 60(b)(3); therefore, the allegations cannot also be brought under Rule 60(b)(6). See R.E. Grills, Inc. v. Davison, 641 So.2d 225, 229 (Ala.1994) (“Clause (6), however, is mutually exclusive of the specific grounds of clauses (1) through (5), and a party may not obtain relief under clause (6) if it would have been available under clauses (1) through (5).“).

      . A party may bring a Rule 60(b)(3) motion in an existing action, seeking to set aside a judgment or order on the ground of fraud, if that motion is filed within four months of the entry of the judgment or order. Taylor filed his motion well outside that four-month time limitation. However, Taylor’s motion can be considered as initiating an independent action, subject to the time limitations discussed above. See Warren v. Riggins, 484 So.2d 412, 414 (Ala.1986) (holding that a motion filed pursuant to Rule 60(b)(3) may be treated as initiating an independent action when that motion was filed after the four-month time limitation in Rule 60(b)(3)). See also Committee Comments on 1973 Adoption of Rule 60 ("There is little procedural difference between the two methods of attack, and since nomenclature is unimportant, courts have consistently treated a proceeding in form an independent action as if it were a motion, and vice versa, where one but not the other was technically appropriate, and any procedural difference between them was immaterial in the case.’’).

      . Section 6-2-3 provides:
      "In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action.”

      . Motions under Rule 60(b)(4) alleging that a judgment or order is void are not subject to the reasonable-time requirement of Rule 60(b) and can be brought at any time. See Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638, 643 (Ala.2003).


text:
    Ex parte Eric DeWayne TAYLOR. (In re Eric DeWayne Taylor v. Jerry Wayne Newman, Fidelity and Deposit Company of Maryland, and Wendy Marie Newman).
    1110519.
    Supreme Court of Alabama.
    April 13, 2012.
    Ralph G. Holberg III and Michael R. Holberg of Holberg & Holberg, P.C., Mobile, for petitioner.
   WOODALL, Justice.

The petition for the writ of certiorari is denied. •

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

MALONE, C.J., and MAIN, JJ., concur.

BOLIN, J., and MURDOCK, J., concur specially.

MURDOCK, Justice

(concurring specially).

I concur in the denial of Eric DeWayne Taylor’s petition for a writ of certiorari to the Court of Civil Appeals in regard to that court’s decision in Taylor v. Newman, 93 So.3d 108 (Aa.Civ.App.2011). In particular, I concur with the statement of this Court that the denial of the petition should not be read by the bench and bar as an approval of the analysis offered in Taylor. I write separately to explain some of the more fundamental reasons I agree with that statement.

Facts and Procedural History

Taylor is the son of Jimmy Patrick Newman (“Newman”), deceased. The personal representative of Newman’s estate is Newman’s brother, Jerry Wayne Newman (“Jerry”). Taylor contends that Taylor and Wendy Marie Newman (“Wendy”), who is Newman’s daughter, are Newman’s heirs. Based on the facts alleged in Taylor’s petition to this Court, Newman’s estate consisted of “assets of only $1,076.09.” See Ma.Code 1975, § 43-8-1(8) (defining the estate as “the property of the decedent whose affairs are subject to this chapter” of the Probate Code).

Taylor’s petition, however, is not concerned with the administration and distribution of the $1,076.09 that constituted Newman’s estate. In March 2005, the Mobile Probate Court granted letters of administration for the estate to Jerry. According to the Court of Civil Appeals, “[t]he probate court included in the letters of administration a provision restricting Jerry from settling any litigation on behalf of the estate without the approval of the probate court; the estate had filed a wrongful-death action against the other party involved in the automobile accident in which [Newman] had been killed.” 93 So.3d at 110. Taylor’s petition is concerned with his failed attempt to persuade the Mobile Probate Court to undo orders issued by that court concerning the distribution of proceeds from the settlement of a wrongful-death claim that arose out of Newman’s death and that was filed pursuant to § 6-5-410, Ala.Code 1975.

Discussion

Notwithstanding the foregoing procedural history, an estate cannot file a wrongful-death action. See Ala.Code 1975, § 6-5-410; Downtown Nursing Home, Inc. v. Pool, 375 So.2d 465, 466 (Ala.1979) (noting that the “right” to file a wrongful-death action is “vested in the personal representative alone”). As a corollary, the proceeds from the settlement of the wrongful-death claim that arose out of Newman’s death are not a part of Newman’s estate. See, e.g., Steele v. Steele, 623 So.2d 1140, 1141 (Ala.1993) (“[D]am-ages awarded pursuant to [§ 6-5-410] ... are not part of the decedent’s estate.”).

This Court has long recognized that,

“[i]n prosecuting [wrongful-death] actions, the personal representative does not act strictly in his capacity as administrator of the estate of his decedent, because he is not proceeding to reduce to possession the estate of his decedent, but rather he is asserting a right arising after his death, and because the damages recovered are not subject to the payment of the debts or liabilities of the decedent. He acts rather as an agent of legislative appointment for the effectuation of the legislative policy....”

Hatas v. Partin, 278 Ala. 65, 68, 175 So.2d 759, 761 (1965); see also Steele, 623 So.2d at 1141 (noting that the “personal representative ... act[s] as agent by legislative appointment for the effectuation of a legislative policy of the prevention of homicides through the deterrent value of the infliction of punitive damages”). “Upon a recovery, [the personal representative] acts as a quasi trustee for those who are entitled thereto under the statute of distribution. Such damages are not subject to administration and do not become part of the deceased’s estate.” United States Fid. & Guar. Co. v. Birmingham Oxygen Serv., Inc., 290 Ala. 149, 155, 274 So.2d 615, 621 (1973). Indeed, commenting on an earlier version of Alabama’s wrongful-death statute, this Court noted that the legislature has

“impose[d] upon the administrator a trust separate and distinct from the administration. The trust is not for the benefit of the estate, but of the widow, children, or next of kin of the deceased. The administrator fills this trust, but he does not do it in the capacity of representative of the estate. It is altogether distinct from the administration, notwithstanding it is filled by the administrator.”

Hicks v. Barrett, 40 Ala. 291, 293 (1866) (discussing Ala.Code of 1852, § 1938).

Taylor’s petition concerns the Mobile Probate Court’s denial of his postjudgment motion to set aside that court’s orders purportedly (1) approving Jerry’s settlement of the wrongful-death claim and (2) approving the distribution of the proceeds from the settlement of the wrongful-death claim as part of the “final settlement” of Newman’s estate. The settlement proceeds, less attorney fees, were distributed to Wendy. The facts stated in the opinion of the Court of Civil Appeals would support the notion that Wendy was the only heir of Newman’s known to the probate court, to Wendy, and to Jerry at the time of the final settlement of Newman’s estate in May 2006.

In 2010, after Taylor discovered that Wendy had received a substantial monetary settlement from the wrongful-death action, he initiated, a paternity proceeding to establish that he was Newman’s son. A few days after Taylor received a judgment of paternity in January 2011, Taylor filed the aforementioned motion to set aside the probate court’s orders concerning the approval of the wrongful-death-claim settlement and the final settlement of Newman’s estate. Taylor’s postjudgment motion was filed pursuant to Rule 60(b), Ala. R. Civ. P. The probate court denied the motion, and the Court of Civil Appeals affirmed that denial. See Taylor, 93 So.3d at 113.

Most of Taylor’s arguments in his petition to this Court, and much of the Court of Civil Appeals’ discussion in Taylor, relate to statutes applicable to the administration of an estate. Those statutes, however, are inapposite because the proceeds from a wrongful-death claim are not part of the decedent’s estate, see Steele, supra; thus, they are not included within the estate administration.

For example, the Court of Civil Appeals could not properly have applied the limitations period from Ala.Code 1975, § 43-8-5. Taylor, 93 So.3d at 114. Section 43-8-5 applies to proceedings “under this chapter,” i.e., chapter 8 of the Probate Code, which concerns certain matters relating to the administration of estates, not the settlement of, or the distribution of proceeds from, a wrongful-death action.

Similarly, the Court of Civil Appeals’ discussion of §§ 43-2-60 and -61, Ala. Code 1975, which concern notice to creditors of the decedent, not to heirs, is misdirected. Indeed, if the Court of Civil Appeals application of those sections were correct, an heir would be “barred” from receiving his or her inheritance when he or she failed to file a claim with the probate court. See Ala.Code 1975, § 43-2-60 (notice must inform the claimant that failure to present a claim “within the time allowed by law” will result in the claim being “barred”). In addition, it may be noted that such a conclusion obviously cannot be reconciled with the statute governing automatic devolution of title to a decedent’s property, see Ala.Code 1975, § 43-2-830.

Further, I note that Taylor may indeed have cause to have the orders at issue set aside, though not for any grounds he raised in his petition to this Court or in his Rule 60(b) motion. Rule 60(b)(4), Ala. R.App. P., authorizes a trial court to set aside a judgment or order where it lacked subject-matter jurisdiction. In pertinent part, § 12-13-1, Ala.Code 1975, provides:

“(b) The probate court shall have original and general jurisdiction over the following matters:
“(3) All controversies in relation to the right of executorship or of administration.
“(4) The settlement of accounts of executors and administrators.
“(5) The sale and disposition of the real and personal property belonging to and the distribution of intestate’s estates.”

The foregoing categories of jurisdiction concern matters relating to the administration of a decedent’s estate; they do not authorize the probate court to entertain a motion concerning the approval of the settlement of a wrongful-death claim by a personal representative or to enter an order concerning the distribution of the proceeds from a settlement in such an action as part of the final settlement of the estate. Likewise, matters concerning the personal representative’s settlement of a wrongful-death claim and the distribution of the proceeds therefrom do not fall within the Mobile Probate Court’s general equity jurisdiction, which is limited to matters of equity “in the administration of the estates,” Act No. 91-131, Ala. Acts 1991, and to “any proceeding involving a testamentary or inter vivos trust.” Ala.Code 1975, § 19-3B-208. The matters at issue do not concern the administration of Newman’s estate, nor do they concern a testamentary trust or an inter vivos trust.

BOLIN, J., concurs.

      . Because we do not have the record on appeal before us, however, I cannot confirm whether the wrongful-death action was filed by Jerry, as personal representative of Newman's estate, or by the estate itself, as the Court of Civil Appeals states in its opinion. Concomitantly, in reference to the Court of Civil Appeals’ description of litigation-settlement-restriction language contained in Jerry’s letters of administration, the probate court has no power to issue such a restriction as to the settlement of litigation in which the estate has no interest, i.e., a wrongful-death action. See discussion, infra.

      . Citing § 12-13-12, Ala.Code 1975, and its decision in McGallagher v. Estate of DeGeer, 934 So.2d 391, 399 n. 2 (Ala.Civ.App.2005), the Court of Civil Appeals references § 12-13-12 as the basis for applying the Alabama Rules of Civil Procedure to the proceedings of the Mobile Probate Court. Section 12-13-12 states that "[t]he provisions of this code in reference to evidence, pleading and practice, ... so far as the same are appropriate, ... are applicable to the proceedings in the probate court.” Rules 1(a) and 81, Ala. R. Civ. P., however, specifically address the applicability in probate court of the Alabama Rules of Civil Procedure adopted by this Court. See Rule 1(a), Ala. R. Civ. P., Committee Comments to Amendment of June 17, 1975. Rule 1(a) states that "[t]hese rules govern procedure ... in all ... courts where appeals lie directly to the Supreme Court or the Court of Civil Appeals, in all actions of a civil nature ..., except probate courts not exercising statutory equitable jurisdiction, and proceedings enumerated in Rule 81, and other exceptions stated in Rule 81." As to the Mobile Probate Court, see Act No. 91-131, Ala. Acts 1991 (amending Act No. 974, Ala. Acts 1961, and granting the Mobile Probate Court, as to the administration of estates, equity jurisdiction concurrent with the circuit court and providing that appeals from the orders, judgments, and decrees of that court in such, matters lie to the Supreme Court); see also, e.g., Lenton v. Lawler, 641 So.2d 794, 794 n. 1 (Ala.1994) (noting the equitable jurisdiction granted to the Mobile Probate Court pursuant to Act No. 91-131).

      . Included in Taylor’s postjudgment motion denied by the probate court was a “claim” by Taylor for "compensatory damages, punitive damages, and attorney fees” against Wendy, Jerry, and Fidelity and Deposit Company of Maryland, which issued the surety bond regarding Jerry’s administration of Newman’s estate. Taylor, 93 So.3d at 112. Section 43-2-111, Ala.Code 1975, provides:
      "The personal representative and the sureties on his bond are liable to the parties in interest for the due and legal distribution of all damages recovered by such representative under sections 6-5-391, 6-5-410 or 25-6-3, and are subject to all remedies which may be pursued against such representative and sureties for the due administration of personal assets.”
      Cf. Boutwell v. Drinkard, 230 Ala. 212, 160 So. 349 (1935) (noting that, in the context of claims initiated in a circuit court action, heirs may pursue legal (tort) and equitable (constructive-trust) claims against a personal representative who has wrongfully converted assets of the estate); Ramser v. Blair, 123 Ala. 139, 144, 26 So. 341, 342 (1899) (stating, in regard to a will beneficiary’s action initiated in a circuit court against the personal representative for interest due the beneficiary as a specific legacy under the will, ”[w]e think there can be no doubt of plaintiff's right of action at law, and that it was properly brought for money had and received”).
      Section 43-2-111 authorizes an action against the personal representative and his or her sureties in regard to the distribution of proceeds of a wrongful-death action. The language now codified as § 43-2-111 was originally codified as § 2593, Ala.Code of 1886, a companion provision to § 2589, Ala. Code of 1886, the predecessor statute to § 6-5-410. Section 43-2-111 does not expressly vest the probate court with jurisdiction over such an action.

      . Section 43-8-5 by its terms provides a one-year statute of limitations. The commentary explains that this one-year statute of limitations was adopted in concert with the similar one-year limitations period then prescribed by § 6-2-3, Ala.Code 1975. More recently, however, § 6-2-3 has been amended to provide a two-year limitations period. The legislature has yet to make a corresponding change in the language of § 43-8-5.

      . Among other concerns I have with the Court of Civil Appeals’ opinion is its treatment of Rule 60(b)(3), Ala. R. Civ. P., as the source for "an independent action seeking to have a judgment or order set aside on the basis of fraud.” 93 So.3d at 114. The reference to an “independent action” found in Rule 60(b) is not found in clause (3) of that rule, and it is a reference to an action that exists independent of the rule. See Rule 60(b), Ala. R. Civ. P. (“This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three (3) years after the entry of the judgment (or such additional time as is given by § 6-2-3 and § 6-2-8, Code of Alabama 1975) to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”).

      .Taylor’s petition asserts that the probate court lacked jurisdiction because it failed to notify him of the proceedings concerning the approval of the wrongful-death settlement and the final settlement of the estate, i.e., it lacked personal jurisdiction. He bases his argument on notice provisions from statutes governing certain estate-administration proceedings, which, consistent with the foregoing discussion, are inapplicable to his case.