author: THOMAS, Judge.

text:
    Carol MAHONEY v. LOMA ALTA PROPERTY OWNERS ASSOCIATION, INC.
    2080192.
    Court of Civil Appeals of Alabama.
    March 27, 2009.
    Rehearing Denied May 22, 2009.

      Richard L. Watters, Mobile, for appellant.
    James B. Pittman, Jr., and Jennifer L. Evans of James B. Pittman, Jr., P.C., Daphne, for appellee.
   THOMAS, Judge.

Carol Mahoney appeals from a judgment of the Baldwin Circuit Court denying her request for an attorney’s fee and costs pursuant to the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala. Code 1975 (“ALAA”). We reverse.

For an understanding of the facts and procedural history underlying this appeal, we quote from this court’s decision in Mahoney v. Loma Alta Property Owners Ass’n, 4 So.3d 1130, 1131-33 (Ala.Giv.App.2008)(“Mahoney ”):

“Loma Alta Property Owners Association, Inc. (‘LAPOA’), sued Carol Maho-ney in the Baldwin District Court, claiming breach of contract, account stated, and a property-owners-association lien on real estate occupied by Mahoney. LAPOA alleged that Ms. Mahoney was the owner of unit C-l in Loma Alta Townhomes; that Ms. Mahoney was, therefore, bound by an agreement contained within the condominium declaration for the Loma Alta subdivision to pay property-owners-association fees, assessments, and late charges; and that Ms. Mahoney had failed to pay those fees, assessments, and charges. LA-POA asserted that it was entitled to recover from Ms. Mahoney damages, including late fees, interest, costs, and an attorney fee, and to have a lien on the real estate occupied by Ms. Mahoney.
“Ms. Mahoney answered the complaint, admitted that she ‘owe[d] some money, but not the total amount claimed by [LAPOA],’ and asserted that she was entitled to a setoff because LAPOA had failed to make needed repairs on the unit. On April 11, 2006, the district court entered a judgment in favor of LAPOA in the amount of $5,390, plus costs and an attorney fee of $500. Ms. Mahoney appealed that judgment to the Baldwin Circuit Court on April 25, 2006, for a trial de novo.
“On May 19, 2006, Ms. Mahoney filed an amended answer in the circuit court, generally denying the allegations of LA-POA’s complaint and asserting, among other things, that she did not have a contract with LAPOA. In addition, Ms. Mahoney asserted a claim under the Alabama Litigation Accountability Act (‘ALAA’), § 12-19-270 et seq., AlaCode 1975. On December 21, 2006, LAPOA amended its complaint, naming Ms. Ma-honey’s former husband, Joseph Maho-ney, as a defendant. LAPOA alleged that Mr. Mahoney was the ‘owner’ of unit C-l in Loma Alta Townhomes and that Ms. Mahoney was a ‘resident’ of the unit. LAPOA also added a claim alleging that, by virtue of the foreclosure of its property-owners-association lien, it was entitled to have Ms. Mahoney ‘evicted’ from unit C-l.
“The circuit court conducted a bench trial on January 26, 2007, at which only one witness — Mary Garey, the secretary/treasurer of LAPOA — testified. Garey explained that the property-owners-association fees and assessments represent the unit owners’ proportionate share of the cost of maintaining and preserving the common areas of the condominium. Garey testified that Ms. Ma-honey had resided in unit C-l of the condominium since March 2000 and that she had paid some of the fees and assessments but that she had stopped paying, contending that she was entitled to set off against the balance the cost of needed repairs that LAPOA had failed to make on the unit Ms. Mahoney was occupying. Garey stated that, according to the condominium declaration, repairs to a unit are the responsibility of the individual unit owner, not LAPOA. Garey identified a document showing the past-due fees and assessments that, LA-POA claimed, were owed by Ms. Maho-ney. Garey testified that Ms. Mahoney had never returned the invoices for fees and assessments to Garey with a request that the invoices be forwarded to someone else. Nor, according to Garey, had Ms. Mahoney ever informed LA-POA that she was not the owner of the unit in which she resided. Garey testified that LAPOA, by virtue of its contract with the owner of each unit, has a lien on any unit for which there are unpaid fees and assessments. Garey said that LAPOA had foreclosed its lien on unit C-l.
“On cross-examination,. Garey acknowledged that the owner of each unit is solely responsible for payment of the property-owners-association fees and assessments. Garey admitted that LA-POA had no deed showing that Ms. Ma-honey was the owner of the unit in which she resided, that LAPOA had no contract with Ms. Mahoney, and that LAPOA had no document stating that someone other than the owner of the unit was responsible for payment of the fees and assessments on the unit that Ms. Mahoney occupied. On redirect examination, Garey affirmed the truth of the following inquiry by LAPOA’s counsel: ‘We’re simply asking [the circuit court] to confirm that we’ve got a judgment on this unit, whether it’s owned [by] Ms. Mahoney or whoever it is, because that unit has not paid any dues and assessments, is that right?’
“The circuit court admitted the following documentary evidence offered by LAPOA: (1) the condominium declaration for the Loma Alta subdivision; (2) a statement of fees, assessments, and late charges sent by LAPOA to Ms. Maho-ney on January 24, 2007, indicating a balance due of $6,150; and (8) a ‘Statement of Lien’ filed in the Baldwin Probate Court on October 4, 2004, naming Carol Mahoney as the owner of ‘Lot CI, Loma Alta, as recorded in Map Book II, Page 176, in the Office of the Judge of Probate, Baldwin County, Alabama.’
“At the conclusion of Garey’s testimony, LAPOA rested and Ms. Mahoney’s counsel moved for a ‘directed verdict,’ arguing:
“ ‘[T]here’s been no proof of ownership [by] my client, Carol Mahoney, ... or that she’s bound by any contract that they have failed to present in court showing that she’s responsible for anything ....
“ ‘[LAPOA has] gone against the wrong person, and that’s why we move for a directed verdict and ask for award of reasonable attorney’s fees for having to fight this.’
“The circuit court denied the motion. On April 13, 2007, the court entered a judgment in favor of LAPOA and against Ms. Mahoney in the amount of $6,279.10 and awarded LAPOA an attorney’s fee of $5,000. The court did not rule on Ms. Mahoney’s ALAA counterclaim, but we conclude that it was implicitly denied. See Harris v. Cook, 944 So.2d 977, 981 (Ala.Civ.App.2006). On the same day, the circuit court entered a default judgment for the same amount in favor of LAPOA and against Joseph Mahoney. Ms. Mahoney filed a timely notice of appeal to this court on May 15, 2007.

This court reversed the judgment in favor of Loma Ata Property Owners Association, Inc. (“LAPOA”), holding that LA-POA had wholly failed to prove that Ms. Mahoney was bound to pay the fees, assessments, and late charges claimed by LAPOA because LAPOA’s contract obligated the owner of the condominium unit to pay those charges and the evidence conclusively established that Ms. Mahoney was not the owner of the unit. This court remanded the cause to the circuit court with instructions to adjudicate Ms. Maho-ney’s ALAA claim.

On remand, the circuit court vacated its judgment in favor of LAPOA, entered a judgment in favor of Ms. Mahoney, and summarily denied Ms. Mahoney’s ALAA claim on September 17, 2008. Ms. Maho-ney filed a postjudgment motion on October 2, 2008, complaining that the circuit court had, “without evidence or testimony entered a verdict for [LAPOA] as to the ALAA claim.” She attached to her motion a foreclosure deed executed by LAPOA’s attorney on October 10, 2006, and filed in the Baldwin Probate Court on October 16, 2006, averring that Joseph Mahoney had been the record title owner of the subject property since May 10, 2005.

Ms. Mahoney specifically requested a hearing on her postjudgment motion. The circuit court set the motion for a hearing on October 21, 2008. The record before us contains no transcript of the hearing. The parties agree, however, that Ms. Mahoney did not appear, that no evidence was presented, and that counsel for both parties presented oral argument to the trial court at the hearing. On October 28, 2008, the circuit court denied Ms. Mahoney’s post-judgment motion. Ms. Mahoney timely appealed on November 13, 2008.

Discussion

Section 12-19-272(a), Ala.Code 1975, provides that a trial court “shall award” an attorney’s fee against any party “who has brought a civil action, or asserted a claim therein, or interposed a defense, that a court determines to be without substantial justification, either in whole or part.” In Pacific Enterprises Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d 409, 417 (Ala.1993), our supreme court held that the determination that an action, claim, or defense is without substantial justification “may be either a factual or a legal determination, depending on the grounds upon which the trial court bases its determination.” The court further explained:

“Section 12-19-271(1), Ala.Code 1975, states:
“ ‘The phrase “without substantial justification,” when used with reference to any action, claim, defense or appeal, including without limitation any motion, means that such action, claim, defense or appeal (including any motion) is frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose, including without limitation, to cause unnecessary delay or needless increase in the cost of litigation, as determined by the court.’
“The clear terms of § 12-19-271(1) require that for an action, claim, or defense to be ‘without substantial justification’ it must be either ‘frivolous,’ ‘groundless in fact,’ ‘groundless in law,’ ‘vexatious,’ or ‘interposed for any improper purpose.’ We conclude that the terms or phrases ‘frivolous,’ ‘groundless in fact,’ ‘vexatious,’ and ‘interposed for any improper purpose’ require factual determinations that will be entitled to deference on appeal. See, Smith v. Smith, 551 So.2d 1024 (Ala.1989). Thus, if a trial court determines that a party’s action, claim, or defense is ‘without substantial justification,’ based on the applicability of any one of these terms or phrases, that determination will not be disturbed on appeal ‘unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.’ Cove Creek Development Corp. v. APAC-Alabama, Inc., 588 So.2d 458, 461 (Ala.1991).
“However, we conclude that the phrase ‘groundless in lav/ clearly calls for a legal determination. Therefore, if the trial court determines that a party’s action, claim, or defense is ‘without substantial justification’ because it is ‘groundless in law,’ that determination will not be entitled to a presumption of correctness. Rather, the appellate courts of this State will test the validity of the trial court’s legal conclusion.”

614 So.2d at 417-18 (emphasis omitted). When a trial court grants an attorney’s fee under the ALAA, it must “specifically set forth the reasons for such award.” § 12-19-273, Ala.Code 1975. See Pacific Enters., 614 So.2d at 418.

Referring to the standard of review in ALAA cases, this court, in Sanderson Group, Inc. v. Smith, 809 So.2d 823, 831 (Ala.Civ.App.2001), stated:

“The supreme court has never discussed the standard of review applicable to the denial of an award of fees under the ALAA. However, this court has indicated that the requirement that the trial court expressly state the reasons behind its decision does not apply to the denial of a motion pursuant to the ALAA, but only to the grant of such a motion. See Brashear v. Spinks, 623 So.2d 321, 323 (Ala.Civ.App.1993).”

Because our supreme court has never set out the applicable standard for appellate review of the denial of an ALAA claim, we will discuss Sanderson Group, Inc. v. Smith, supra; Sam v. Beaird, 685 So.2d 742 (Ala.Civ.App.1996); Warner v. Bullington, 624 So.2d 594 (Ala.Civ.App.1993); and Brashear v. Spinks, 623 So.2d 321 (Ala.Civ.App.1993) — our own opinions that have addressed a trial court’s denial of an ALAA claim — in order to determine what standard of review has been applied.

In Brashear v. Spinks, supra, a former wife filed a contempt petition against a former husband, alleging that the former husband had failed and refused to comply with the terms of the divorce judgment, which incorporated an agreement by the parties to retain joint ownership of two houses, one in Alabama and one in Indiana. The agreement provided that the former wife could live in the Alabama house and that the former husband would be responsible for paying the mortgage payments on both houses. The former wife’s contempt petition alleged that the former husband had refused to allow her to live in the Alabama house and had failed to pay the mortgage payments on the Indiana house, resulting in the foreclosure of the mortgage on that house. The parties later stipulated that the former wife’s petition should be dismissed. The former wife submitted an affidavit acknowledging that the allegations of her petition were untrue; the former husband moved for an attorney’s fee and costs pursuant to the ALAA. The trial court dismissed the former wife’s petition and summarily denied the former husband’s ALAA claim. This court reversed the trial court’s denial of the ALAA claim and instructed the trial court, on remand, to award the former husband an attorney’s fee. We stated:

“The record is comprised solely of the clerk’s record. There was no hearing on the complaint. Even from a review of the record before us, however, it appears that the [former] husband’s request for attorney fees was well grounded. The [former] wife admitted in her affidavit that the allegations of the complaint were untrue. She stated in deposition that she brought the action, over twenty-five years after the divorce decree, because the [former] husband’s ‘mother treated her like a dog.’ It appears that if the [former] wife’s attorney had investigated his client’s charges by a simple title search of the property in question, he would have found that there was no validity to her complaint. Counsel for the [former] husband, by letters and pleading, informed the [former] wife’s counsel of the falseness of her charges soon after the complaint was filed.”

623 So.2d at 323.

In Warner v. Bullington, supra, a buyer and a seller entered into an installment sales contract for the purchase of real property. The buyer defaulted on the payments and was notified by the seller to vacate the property. The buyer then sued the seller, alleging a violation of federal Truth-in-Lending Act and state Mini-Code disclosure requirements and seeking rescission of the contract, damages, and an attorney’s fee. The seller complied with the buyer’s request for a rescission of the contract, refunded the payments made by the buyer, and requested that the buyer vacate the premises. The seller also moved to dismiss the buyer’s complaint on the ground that the action was “without substantial justification” and requested an attorney’s fee. The trial court dismissed the buyer’s complaint and denied the seller’s claim for an attorney’s fee.

This court affirmed, holding that, because the seller acknowledged that the contract lacked certain disclosures required by the Truth-in-Lending Act, it could not say that the buyer’s action was “without substantial justification,” 624 So.2d at 595, and, thus, we held that the trial court had not “abused its discretion” in denying the ALAA claim, 624 So.2d at 596.

In Sam v. Beaird, supra, this court affirmed a trial court’s denial of an ALAA claim. In that case, a tenant sued her landlord, alleging, among other things, a violation of the Alabama Deceptive Trade Practices Act, § 8-19-1 et seq., Ala.Code 1975. The trial court entered a judgment in favor of the landlord but denied the landlord’s motion to assess an attorney’s fee under the ALAA. The tenant appealed, and the landlord cross-appealed the denial of his ALAA claim. This court held that, although Alabama law regarding the scope of the deceptive trade practices outlined in § 8-19-5 was not clear, the statutory language left no doubt that “some knowledge of false or deceptive conduct on the part of the wrongdoer” was required, 685 So.2d at 744, and, we held, the evidence would not have supported a finding that the landlord had engaged in knowingly false or deceptive conduct. Nevertheless, we affirmed the denial of the landlord’s ALAA claim because, “[a]lthough [the tenant] did not prevail, her claims were not so lacking in merit as to be frivolous. Further there [was] no evidence that [the tenant] pursued her claims in bad faith or with malicious intent.” 685 So.2d at 745.

In Sanderson Group v. Inc. v. Smith, supra, the credit company that had financed a buyer’s purchase of a mobile home filed an action to repossess the mobile home after the buyer had rejected the home upon delivery and had stopped payments. The buyer counterclaimed against the credit company, alleging fraud, and asserted claims against the seller and its agent, alleging fraud, breach of contract, and conversion. The credit company, the seller, and the seller’s agent moved to compel arbitration, and an arbitrator issued an order denying the buyer’s conversion claim but awarding the buyer damages for mental anguish. The seller appealed to the circuit court, and the buyer moved for an attorney’s fee pursuant to the ALAA. The circuit court confirmed the award but denied the buyer’s request for an attorney’s fee. The seller appealed and the buyer cross-appealed.

The ALAA claim at issue in Sanderson Group depended upon the correctness of the arbitrator’s award to the buyer of mental-anguish damages.

“The arbitrator stated that his award was based on his conclusion that ‘[the seller’s] late delivery [of the mobile home], coupled with its promises of delivery by Christmas and its insistence that the [buyer] vacate the trade-in, led to substantial disruption of the [buyer’s] family’s] lives for six to eight weeks, with accompanying severe emotional distress to ... [the buyer].’ [The seller] argues that the arbitrator manifestly disregarded the law, which, it says, does not provide for the recovery of mental-anguish damages without either proof that [the buyer] was physically injured or proof that [the buyer] was placed in immediate risk of physical injury.”

809 So.2d at 828. This court noted that the seller’s argument — that the arbitrator did not have the authority to award mental-anguish damages for a tort because such damages are not recoverable in the absence of physical injury or the immediate risk of physical injury — “completely disregarded] the well-established law that permits the award of mental-anguish damages in breach-of-contract cases involving homes.” 809 So.2d at 831. See Liberty Homes, Inc. v. Epperson, 581 So.2d 449, 454 (Ala.1991) (stating that, under Alabama law, “[d]amages for mental anguish can be recovered ... “where the contractual duty or obligation is so coupled with matters of mental concern or solicitude, or with the feelings of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering’ ” (quoting B & M Homes, Inc. v. Hogan, 376 So.2d 667, 671 (Ala.1979))). Holding that the seller’s argument with respect to mental-anguish damages was groundless in law, this court reversed the circuit court’s judgment denying the buyer’s ALAA claim and remanded the cause for the circuit court to determine an appropriate award. 809 So.2d at 832.

A review of the foregoing cases convinces us that the standard of review on appeal from the denial of an ALAA claim is no different from the standard of review on appeal from the grant of an ALAA claim, except that the denial of an ALAA claim is not required to be (and is usually not) accompanied by any statement of reasons by the trial court. Therefore, when the trial court denies an ALAA claim without stating its reasons, this court will reverse only when the record shows indisputably that the “action, claim, or defense” is either “groundless in fact,” see Brashear v. Spinks, supra, or “groundless in law,” see Sanderson Group, supra.

In the present case, as in Sander-son Group, the record shows indisputably that LAPOA’s action against Ms. Mahoney was groundless in law. All four of LA-POA’s claims against Ms. Mahoney— breach of contract, account stated, property owner’s Hen, and eviction — hinged upon its proving that Ms. Mahoney was the owner of the property. LAPOA not only failed to prove that Ms. Mahoney was the owner, but it also presented as its only witness at the circuit-court trial someone who acknowledged “that LAPOA had no deed showing that Ms. Mahoney was the owner” of the property. Mahoney, 4 So.3d at 1132. LAPOA had access to its own condominium declaration, which

“makes it clear that LAPOA’s remedy is strictly against the owner. As Article VII, Section 7, of the declaration, entitled ‘Effect of Nonpayment of Assessments: Remedies of the Association,’ states: ‘No owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his lot.’ ”

Mahoney, 4 So.3d at 1134. In addition, the record conclusively demonstrates that LA-POA knew, before December 21, 2006, when it amended its complaint in the circuit court, that Ms. Mahoney’s former husband, Joseph Mahoney, was the owner of the property because LAPOA’s attorney had, on October 16, 2006, filed in the Baldwin Probate Court a foreclosure deed averring that Joseph Mahoney had been the record title owner of the subject property since May 10, 2005.

To paraphrase what this court held in Brashear v. Spinks, 623 So.2d at 323:

“It appears that if [LAPOA’s] attorney had investigated his client’s charges by a simple title search of the property in question, he would have found that there was no validity to [LAPOA’s] complaint.”

Because LAPOA’s claims against Ms. Ma-honey were groundless in law, the trial court’s order denying Ms. Mahoney’s ALAA claim is reversed, and the cause is remanded for the trial court to determine an appropriate award.

Ms. Mahoney’s request for an attorney’s fee on appeal is granted in the amount of $500.

' REVERSED AND REMANDED.

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

      " 1Section 35-8-17(4), Ala.Code 1975, a part of a chapter entitled 'Condominium Ownership,’ provides that '[l]iens for unpaid assessments may be foreclosed by an action brought in the name of the [property owners'] association in the same manner as a foreclosure of a mortgage on real property.’

      " 2In actions tried without a jury, the proper motion is one for a judgment on partial findings, pursuant to Rule 52(c), Ala. R. Civ. P.”


source: Caselaw Access Project

author: SMITH, Justice. WOODALL, Justice MURDOCK, Justice

license: Public Domain

text:
    Ex parte LOMA ALTA PROPERTY OWNERS ASSOCIATION, INC. (In re Carol Mahoney v. Loma Alta Property Owners Association, Inc.)
    1081170.
    Supreme Court of Alabama.
    June 30, 2010.

      James B. Pittman, Jr., and Jennifer L. Evans of James B. Pittman, Jr., P.C., Daphne, for petitioner.
    Richard L. Watters, Mobile, for respondent.
   SMITH, Justice.

Loma Alta Property Owners Association, Inc. (“LAPOA”), petitioned this Court for a writ of certiorari to review the decision of the Court of Civil Appeals reversing the circuit court’s denial of Carol Mahoney’s claim under the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala.Code 1975 (“the ALAA”). See Mahoney v. Loma Alta Prop. Owners Ass’n, 52 So.3d 510 (Ala.Civ.App.2009) (“Mahoney II”). We granted certiorari review to consider, as a material question of first impression, the appropriate appellate standard of review for the denial of a claim made under the ALAA. We also granted certiorari review to consider whether the Court of Civil Appeals’ decision conflicts with Dickerson v. Dickerson, 885 So.2d 160 (Ala.Civ.App.2003). We adopt the standard of review applied by the Court of Civil Appeals in Mahoney II, and we conclude that this case is distinguishable from Dickerson. Therefore, we affirm the judgment of the Court of Civil Appeals.

Facts and Procedural History

LAPOA and Carol Mahoney (“Maho-ney”) both stipulate that the Court of Civil Appeals’ opinion in Mahoney v. Loma Alta Property Owners Ass’n, 4 So.3d 1130 (Ala.Civ.App.2008) (“Mahoney /”), correctly sets out the facts and procedural history in the underlying case. That opinion states:

“[LAPOA] sued Carol Mahoney in the Baldwin District Court, claiming breach of contract, account stated, and a property-owners-association lien on real estate occupied by Mahoney. LAPOA alleged that Ms. Mahoney was the owner of unit C-l in Loma Alta Townhomes; that Ms. Mahoney was, therefore, bound by an agreement contained within the condominium declaration for the Loma Alta subdivision to pay property-owners-association fees, assessments, and late charges; and that Ms. Mahoney had failed to pay those fees, assessments, and charges. LAPOA asserted that it was entitled to recover from Ms. Maho-ney damages, including late fees, interest, costs, and an attorney fee, and to have a lien on the real estate occupied by Ms. Mahoney.
“Ms. Mahoney answered the complaint, admitted that she We[d] some money, but not the total amount claimed by [LAPOA],’ and asserted that she was entitled to a setoff because LAPOA had failed to make needed repairs on the unit. On April 11, 2006, the district court entered a judgment in favor of LAPOA in the amount of $5,390, plus costs and an attorney fee of $500. Ms. Mahoney appealed that judgment to the Baldwin Circuit Court on April 25, 2006, for a trial de novo.
“On May 19, 2006, Ms. Mahoney filed an amended answer in the circuit court, generally denying the allegations of LA-POA’s complaint and asserting, among other things, that she did not have a contract with LAPOA. In addition, Ms. Mahoney asserted a claim under the Alabama Litigation Accountability Act (‘ALAA’), § 12-19-270 et seq., Ala.Code 1975. On December 21, 2006, LAPOA amended its complaint, naming Ms. Ma-honey’s former husband, Joseph Maho-ney, as a defendant. LAPOA alleged that Mr. Mahoney was the ‘owner’ of unit C-l in Loma Alta Townhomes and that Ms. Mahoney was a ‘resident’ of the unit. LAPOA also added a claim alleging that, by virtue of the foreclosure of its property-owners-association lien, it was entitled to have Ms. Mahoney ‘evicted’ from unit C-l.
“The circuit court conducted a bench trial on January 26, 2007, at which only one witness — Mary Garey, the secretary/treasurer of LAPOA — testified. Garey explained that the property-owners-association fees and assessments represent the unit owners’ proportionate share of the cost of maintaining and preserving the common areas of the condominium. Garey testified that Ms. Ma-honey had resided in unit C-l of the condominium since March 2000 and that she had paid some of the fees and assessments but that she had stopped paying, contending that she was entitled to set off against the balance the cost of needed repairs that LAPOA had failed to make on the unit Ms. Mahoney was occupying. Garey stated that, according to the condominium declaration, repairs to a unit are the responsibility of the individual unit owner, not LAPOA. Garey identified a document showing the past-due fees and assessments that, LA-POA claimed, were owed by Ms. Maho-ney. Garey testified that Ms. Mahoney had never returned the invoices for fees and assessments to Garey with a request that the invoices be forwarded to someone else. Nor, according to Garey, had Ms. Mahoney ever informed LA-POA that she was not the owner of the unit in which she resided. Garey testified that LAPOA, by virtue of its contract with the owner of each unit, has a lien on any unit for which there are unpaid fees and assessments. Garey said that LAPOA had foreclosed its lien on unit C-l.
“On cross-examination, Garey acknowledged that the owner of each unit is solely responsible for payment of the property-owners-association fees and assessments. Garey admitted that LA-POA had no deed showing that Ms. Ma-honey was the owner of the unit in which she resided, that LAPOA had no contract with Ms. Mahoney, and that LAPOA had no document stating that someone other than the owner of the unit was responsible for payment of the fees and assessments on the unit that Ms. Mahoney occupied. On redirect examination, Garey affirmed the truth of the following inquiry by LAPOA’s counsel: ‘We’re simply asking [the circuit court] to confirm that we’ve got a judgment on this unit, whether it’s owned [by] Ms. Mahoney or whoever it is, because that unit has not paid any dues and assessments, is that right?’
“The circuit court admitted the following documentary evidence offered by LAPOA: (1) the condominium declaration for the Loma Alta subdivision; (2) a statement of fees, assessments, and late charges sent by LAPOA to Ms. Maho-ney on January 24, 2007, indicating a balance due of $6,150; and (3) a ‘Statement of Lien’ filed in the Baldwin Probate Court on October 4, 2004, naming Carol Mahoney as the owner of ‘Lot CI, Loma Alta, as recorded in Map Book II, Page 176, in the Office of the Judge of Probate, Baldwin County, Alabama.’
“At the conclusion of Garey’s testimony, LAPOA rested and Ms. Mahoney’s counsel moved for a ‘directed verdict,’ arguing:
“ ‘[TJhere’s been no proof of ownership [by] my client, Carol Mahoney, ... or that she’s bound by any contract that they have failed to present in court showing that she’s responsible for anything....
“ ‘[LAPOA has] gone against the wrong person, and that’s why we move for a directed verdict and ask for award of reasonable attorney’s fees for having to fight this.’
“The circuit court denied the motion. On April 13, 2007, the court entered a judgment in favor of LAPOA and against Ms. Mahoney in the amount of $6,279.10 and awarded LAPOA an attorney’s fee of $5,000. The court did not rule on Ms. Mahoney’s ALAA counterclaim, but we conclude that it was implicitly denied. See Harris v. Cook, 944 So.2d 977, 981 (Ala.Civ.App.2006). On the same day, the circuit court entered a default judgment for the same amount in favor of LAPOA and against Joseph Mahoney. Ms. Mahoney filed a timely notice of appeal to this court on May 15, 2007.

Mahoney I, 4 So.3d at 1131-33.

In Mahoney I the Court of Civil Appeals reversed the judgment of the circuit court because, it held, LAPOA had failed to present any evidence indicating that “it had an express contract with Ms. Mahoney or that it had a reasonable expectation of compensation from Ms. Mahoney on an implied contract.” 4 So.3d at 1135-36. The Court of Civil Appeals remanded the action to the circuit court with instructions for that court to vacate its judgment in favor of LAPOA, to enter a judgment in favor of Mahoney on LAPOA’s claims, and to then adjudicate Mahoney’s claim under the ALAA. See Mahoney I, 4 So.3d at 1136.

On remand the circuit court summarily denied Mahoney’s ALAA claim. Mahoney then moved the circuit court, under Rule 59(e), Ala. R. Civ. P., to alter, amend, or vacate its order denying her ALAA claim. The circuit court denied the motion; no transcript appears in the record for a hearing on the motion. Mahoney then appealed the judgment denying her ALAA claim to the Court of Civil Appeals.

The Court of Civil Appeals reversed the judgment of the circuit court, holding that “[b]ecause LAPOA’s claims against Ms. Mahoney were groundless in law, the trial court’s order denying Ms. Mahoney’s ALAA claim is reversed, and the cause is remanded for the trial court to determine an appropriate award.” Mahoney II, 52 So.3d at 517-18. LAPOA then petitioned this Court for certiorari review of the Court of Civil Appeals’ decision. We granted certiorari review to consider, as a material question of first impression, the appropriate appellate standard of review for the denial of an ALAA claim. We also granted certiorari review to consider whether the Court of Civil Appeal’ decision conflicts with Dickerson, supra.

Analysis

We first consider the appropriate appellate standard of review for the denial of a claim brought under the ALAA. The legislature enacted the ALAA in 1987 to deter baseless legal action. See Pacific Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d 409, 417 (Ala.1993). To effectuate this purpose, the ALAA provides, in pertinent part:

“[I]n any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorneys’ fees and costs against any attorney or party, or both, who has brought a civil action, or asserted a claim therein, or interposed a defense, that a court determines to be without substantial justification, either in whole or part....”

§ 12-19-272(a), Ala.Code 1975. Section 12-19-271(1) provides that for an action, claim, defense, or appeal to be “without substantial justification,” it must be “frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose, including without limitation, to cause unnecessary delay or needless increase in the cost of litigation, as determined by the court.”

Only when a court awards attorney fees under the ALAA must that court “specifically set forth the reasons for such award.” § 12-19-273, Ala.Code 1975. If a court denies a claim for attorney fees under the ALAA, that court is not required to set forth reasons for its denial. In Pacific Enterprises this Court advised:

“[W]e will require a trial court making the ‘without substantial justification’ determination to make its determination, the ground or grounds upon which it relies, and the legal or evidentiary support for its determination, a part of the record, either by drafting a separate written order or by having these findings transcribed for the official record.”

614 So.2d at 418.

The standard of review on appeal from an award of attorney fees under the ALAA “depends upon the basis for the trial court’s determination.” Morrow v. Gibson, 827 So.2d 756, 762 (Ala.2002). In Pacific Enterprises, this Court determined, as an issue of first impression, that

“if a trial court determines that a party’s action, claim, or defense is ‘without substantial justification,’ based on the applicability of any one of these terms or phrases [‘frivolous,’ ‘groundless in fact,’ ‘vexatious,’ or ‘interposed for any improper purpose’], that determination will not be disturbed on appeal ‘unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.’ Cove Creek Development Corp. v. APAC-Alabama, Inc., 588 So.2d 458, 461 (Ala.1991).
“However, we conclude that the phrase ‘groundless in law’ clearly calls for a legal determination. Therefore, if the trial court determines that a party’s action, claim, or defense is ‘without substantial justification’ because it is ‘groundless in law,’ that determination will not be entitled to a presumption of correctness. Rather, the appellate courts of this State will test the validity of the trial court’s legal conclusion.”

614 So.2d at 418. In this case the Court of Civil Appeals concluded that “the standard of review on appeal from the denial of an ALAA claim is no different from the standard of review on appeal from the grant of an ALAA claim,” despite the fact that a court is not required to enter findings supporting its decision when it denies a claim for attorney fees under the ALAA. Mahoney II, 52 So.3d at 517.

LAPOA disagrees, arguing that the appellate standard of review for the grant and the denial of attorney fees under the ALAA “cannot logically be the same when a grant of fees under the ALAA is accompanied by specific reasons in support thus giving the appellate court something to review and a denial of fees under the ALAA is usually not accompanied by any reasons in support....” LAPOA’s brief, at p. 24. LAPOA contends that, because a court denying an attorney fee is not required under the ALAA to enter an order stating why it declined the award, application to a denial of an attorney fee of the same standard of review for the grant of an attorney fee under the ALAA improperly requires the appellate court to “reweigh the evidence heard ore tenus ... and to substitute its opinion for that of the trial court’s judgment” in order to determine whether the action, claim, defense, or appeal was groundless in law or groundless in fact. LAPOA’s brief, at p. 28. LAPOA appears to contend that the denial of an attorney fee under the ALAA, including the groundless-in-law category, should be reviewed under the ore tenus standard of review, which provides that “ ‘[w]hen a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.’ ” Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)).

We agree with the Court of Civil Appeals that the appellate standard of review set out in Pacific Enterprises applies to both the grant and the denial of a claim for an attorney fee under the ALAA. If a party appealing the denial of a claim for an attorney fee under the ALAA argues on appeal that an action, claim, defense, or appeal was frivolous, groundless in fact, vexatious, or interposed for an improper purpose, the appellate court shall not reverse the denial of the claim “ ‘unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.’ ” Pacific Enters. Oil Co. (USA), 614 So.2d at 418 (quoting Cove Creek Dev. Corp., 588 So.2d at 461). If a party appealing the denial of a claim for attorney fees under the ALAA argues on appeal that an action, claim, or defense was groundless in law, the appellate court “will test the validity of the trial court’s legal conclusion” and reverse the denial of the claim only when the record shows that the trial court erred in denying the claim. Pacific Enters. Oil Co. (USA), 614 So.2d at 418.

LAPOA asserts that applying the same appellate standard of review to the award of attorney fees under the ALAA to the denial of attorney fees under the ALAA will require appellate courts to “reweigh the evidence heard ore tenus.” LAPOA’s brief, at p. 28. We disagree. If a court denies a claim for attorney fees under the ALAA after holding a hearing on that claim, and the party seeking attorney fees appeals that denial arguing that the subject action, claim, defense, or appeal was frivolous, groundless in fact, vexatious, or interposed for an improper purpose, the appellate standard of review is equivalent to the ore tenus standard of review. Compare Pacific Enters. Oil Co. (USA), 614 So.2d at 418 with Muchia, 854 So.2d at 92. If a court denies a claim for attorney fees under the ALAA after holding a hearing on that claim, and the party seeking attorney fees appeals that denial arguing that the subject action, claim, defense, or appeal was groundless in law, the appellate standard of review is de novo, which requires the appellate courts of this State to “test the validity of the trial court’s legal conclusion.” Pacific Enters. Oil Co. (USA), 614 So.2d at 418.

Here, Mahoney argued to the Court' of Civil Appeals that “[LAPOA’s] claims against [her] were without substantial justification as they were ‘groundless in law.’ ” Mahoney’s brief to the Court of Civil Appeals, at p. 8. That court agreed, holding that “the record shows indisputably that LAPOA’s action against Ms. Ma-honey was groundless in law.” Mahoney II, 52 So.3d at 517. We also agree.

As the Court of Civil Appeals noted:

“[T]he record conclusively demonstrates that LAPOA knew, before December 21, 2006, when it amended its complaint in the circuit court, that Ms. Mahoney’s former husband, Joseph Mahoney, was the owner of the property because LA-POA’s attorney had, on October 16, 2006, filed in the Baldwin Probate Court a foreclosure deed averring that Joseph Mahoney had been the record title owner of the subject property since May 10, 2005.”

Mahoney II, 52 So.3d at 517. Indeed, the amended complaint “allege[s] that Mr. Ma-honey was the ‘owner’ of unit C-l in Loma Alta Townhomes and that Ms. Mahoney was a ‘resident’ of the unit.” Mahoney I, 4 So.3d at 1131-32 (emphasis added). Because “[a]ll four of LAPOA’s claims against Ms. Mahoney — breach of contract, account stated, property owner’s lien, and eviction — hinged upon its proving that Ms. Mahoney was the owner of the property,” and because LAPOA did not allege that Mahoney was the owner of the property, each of LAPOA’s claims against Mahoney was groundless in law. Mahoney II, 52 So.3d at 517. The ALAA does not define the phrase “groundless in law”; however, this Court in Pacific Enterprises stated that “the phrase ‘groundless in law’ clearly calls for a legal determination.” 614 So.2d at 418. Here, the determination that LA-POA’s claims were groundless calls for a legal determination, not a fact-finding exercise. Specifically, the determination that the claims asserted by LAPOA against Mahoney in the amended complaint were groundless results from recognition that ownership of the property was a required legal element of each claim and that, at the time LAPOA amended the complaint, LAPOA alleged that Mahoney’s former husband, and not Mahoney herself, was the owner of the property. We affirm the Court of Civil Appeals’ decision that the circuit court erred in denying Maho-ney’s claim for an attorney fee under the ALAA.

We also granted certiorari review to consider whether the Court of Civil Appeal’ decision reversing of the circuit court’s judgment denying Mahoney’s ALAA claim conflicts with Dickerson. LAPOA contends that the Court of Civil Appeals’ decision in this case conflicts with Dickerson because, LAPOA says, Dickerson reversed the trial court’s judgment awarding attorney fees under the ALAA and remanded the cause to the trial court for the entry of a judgment that did not make an attorney-fee award despite the fact that the underlying action was groundless in law. We find Dickerson distinguishable from the present case.

Contrary to the position asserted by LAPOA, Dickerson did not hold that the underlying action there was groundless in law. Rather, Dickerson held that “although we conclude that the mother’s efforts to obtain reinstatement of postminority educational support ultimately must fail, we do not think it can be concluded that the mother asserted positions that were so frivolous, groundless, vexatious, or improper as to justify the award of attorney fees under the ALAA.” Dickerson, 885 So.2d at 168. Dickerson follows this Court’s guidance in Morrow that “[the attorney] must have been more than ‘simply legally incorrect’ to justify an award of attorney fees pursuant to the ALAA. The legal insufficiency of his position must be susceptible to a conclusion that no reasonable and competent attorney would have advanced the contention that he did.” 827 So.2d at 763-64. Indeed, in Dickerson the Court of Civil Appeals expressly recognized that “the mother argues with some justification that ‘it is inconceivable that the court would consider her [claims] as a frivolous.’” 885 So.2d at 168 (emphasis added). Because Dickerson did not find that the underlying action was groundless in law, it is clearly distinguishable from the present case. As discussed above, we find no error in the Court of Civil Appeals’ conclusion that LAPOA’s action against Mahoney was groundless in law.

Conclusion

Based on the foregoing, we affirm the judgment of the Court of Civil Appeals.

AFFIRMED.

LYONS, STUART, BOLIN, PARKER, and SHAW, JJ., concur.

WOODALL and MURDOCK, JJ., dissent.

WOODALL, Justice

(dissenting).

I respectfully dissent from the decision affirming the judgment of the Court of Civil Appeals and thereby allowing that court to issue a judgment instructing the trial court to award some amount of attorney fees and costs under the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala.Code 1975. My dissent is based, in substantial part, upon the factors discussed by Justice Murdock in his well reasoned dissent. However, I have also been persuaded by other factors.

Loma Alta Property Owners Association, Inc. (“LAPOA”), began this case in the Baldwin District Court, where Carol Mahoney admitted that she owed “some money” to LAPOA. LAPOA prevailed in that court, obtaining a judgment against Mahoney for $5,390, plus court costs and an attorney fee. Mahoney appealed to the Baldwin Circuit Court, where, after a trial de novo, LAPOA again prevailed, obtaining a judgment against Mahoney for $6,279.10, plus an attorney fee. Although that judgment was reversed on appeal by the Court of Civil Appeals, which held that LAPOA had failed to prove its claims, LAPOA’s earlier successes in the lower courts convince me that its action is not the type of action targeted for sanctions by the Alabama Litigation Accountability Act.

I agree with the Court of Civil Appeals that “LAPOA’s claims against Ms. Maho-ney ... hinged upon its proving that [she] was the owner of the property[, and that] LAPOA ... failed to prove that [she] was the owner.” Mahoney v. Loma Alta Prop. Owners Ass’n, 52 So.3d 510, 517 (Ala.Civ. App.2009). However, I cannot agree that such a failure of proof rendered LAPOA’s action groundless in law. Aso, given the history of the litigation, the dealings between the parties before the litigation, and the deference that must be afforded to the trial court’s decision, I cannot conclude that the trial court erred in determining that LAPOA’S action was not frivolous, groundless in fact, vexatious, or interposed for any improper purpose.

MURDOCK, Justice

(dissenting).

I first note that we should take care not to confuse whether we can decide an issue as a matter of law with whether the underlying issue being decided is itself a question of law or one of fact.

An action alleging that Carol Mahoney was the owner of the condominium and seeking condominium fees from her in that capacity states a cognizable legal theory; it therefore is not groundless in law. At least until the amendment of the complaint in the circuit court identifying Mahoney merely as a “resident” of the condominium unit, that was the nature of the action brought against Mahoney.

The fact that Loma Ata Property Owners Association, Inc. (“LAPOA”), later acquired information indicating that Maho-ney was not the owner of the condominium unit (and amended its complaint to that effect) raises the question whether, from the outset, the claim was groundless in fact. I cannot conclude as a matter of law that it was.

This is a case in which LAPOA pursued its claim against Mahoney in the context of the following: (1) Mahoney filed an answer in the district court admitting that she owed a portion of the condominium fees at issue, fees that are owed only by the owner of a condominium unit; (2) in her amended answer in the circuit court, Ma-honey made only a general denial of the allegations in the complaint, “demanding] strict proof thereof,” but did not specifically deny ownership of the unit; (3) Maho-ney continued to imply that she was the owner of the condominium unit by propounding, and moving the circuit court to compel an answer to, an interrogatory requiring LAPOA to “state each and every fact that you rely upon to support your claim that you have the right to charge property owners of Loma Ata for property owner fees, assessments, [etc.]” (a similarly worded request for production was propounded by Mahoney); (4) Mahoney lived alone in the condominium unit for the 9-10 years preceding the filing of the complaint; (5) Mahoney engaged in a course of dealing in which she paid and assumed responsibility for payment of fees owed by the condominium owner, i.e., the very fees that are the subject of this litigation; (6) Mahoney claimed setoffs to which only the owner of the condominium unit would be entitled; and (7) Mahoney apparently held out to the public that she was the owner of the unit and never asked that bills for the fees be directed to anyone else.

The circuit court decided that an action against Mahoney for the collection of condominium fees under the foregoing circumstances was not “frivolous,” “groundless in fact,” “vexatious,” or “interposed for an improper purpose.” Given those circumstances, I cannot conclude that this decision of the circuit court was “clearly erroneous,” “without supporting evidence,” “manifestly unjust,” or “against the great weight of the evidence.” In particular, given the history of pre-litigation dealings between the parties and, indeed, the positions taken by Mahoney in the course of this litigation, I cannot conclude that the circuit court exceeded its discretion to the extent that it rejected the notion “that no reasonable and competent attorney would have” retained Mahoney as a defendant even after December 21, 2006, pending a definitive decision by the court as to liability for the condominium-unit fees. Moreover, given the foregoing considerations, I certainly cannot conclude that the circuit court exceeded its discretion in refusing Mahoney’s request for an award of attorney fees incurred by her throughout the full course of the litigation.

Because I would affirm the circuit court’s decision, I respectfully dissent.

      "1 Section 35-8-17(4), Ala.Code 1975, a part of a chapter entitled 'Condominium Ownership,’ provides that '[l]iens for unpaid assessments may be foreclosed by an action brought in the name of the [property owners'] association in the same manner as a foreclosure of a mortgage on real property.'

      "  In actions tried without a jury, the proper motion is one for a judgment on partial findings, pursuant to Rule 52(c), Ala. R. Civ. P.”

      . We note that a court considering a claim for an attorney fee under the ALAA is not required to hold a hearing on the claim and, therefore, ore tenus evidence related to a claim under the ALAA may not exist. See Ex parte Citizens Bank, 879 So.2d 535, 539 (Ala. 2003) (noting that " ‘it is within the court's discretion to hold a separate hearing on an ALAA petition after the entry of final judgment on the merits, provided that the court retained jurisdiction to do so’ ” (quoting Baker v. Williams Bros., Inc., 601 So.2d 110, 112 (Ala. Civ.App. 1992))). Indeed, in this case the circuit court did not hold a hearing on Maho-ney’s claim for an attorney fee under the ALAA or take testimony related to the claim.

      . We note that the amended complaint is not included in the record before us because neither party moved to incorporate the record from Mahoney I in the record in Mahoney II or in this Court. Therefore, the facts relating to the contents of the amended complaint are pieced together from the opinions of the Court of Civil Appeals in Mahoney I and Mahoney II. See Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala.1990) (”[T]his Court is limited to a review of the record alone, and the record cannot be changed, altered, or varied on appeal by statements in briefs of counsel.”).

      . We note that "the ALAA states that the award of costs and attorney fees is within the sound discretion of the trial court,” Shealy v. Golden, 959 So.2d 1098, 1105 (Ala.2006) (citing § 12-19-273, Ala.Code 1975), and we recognize that the circuit court may limit the attorney fees assessed to those fees that accrued after LAPOA amended the complaint. Indeed, we acknowledge that Mahoney answered the initial complaint by “admitting] that she ’owe[d] some money, but not the total amount claimed by [LAPOA].’ ” Mahoney I, 4 So.3d at 1131. Nonetheless, Maho-ney then “filed an amended answer in the circuit court, generally denying the allegations of LAPOA’s complaint and asserting, among other things, that she did not have a contract with LAPOA.” Mahoney I, 4 So.3d at 1131. After LAPOA then filed a foreclosure deed averring that Mahoney’s former husband was the owner of the property and then identified him as the “owner” of the property and Mahoney as a "resident” in the amended complaint, LAPOA continued to prosecute claims against Mahoney — including proceeding to trial — that were without substantial justification.

      . Because we did not grant LAPOA's petition for certiorari review on the ground that the decision of the Court of Civil Appeals allegedly conflicts with Sam v. Beaird, 685 So.2d 742 (Ala.Civ.App.1996), and Warner v. Bullington, 624 So.2d 594 (Ala.Civ.App.1993), we preter-mit any discussion LAPOA’s arguments as to this alleged conflict.

      . I can understand why the circuit court felt that, given the course of dealing between the parties before the litigation and the positions taken by Mahoney throughout most of the litigation, she should not be heard to claim that the litigation was frivolous or interposed for an improper purpose and that she was entitled to an award of her attorney fees.


text:
    Orvid Dwight JONES and William D. Jones v. Daryl R. SHERRELL.
    2090240.
    Court of Civil Appeals of Alabama.
    June 18, 2010.

      Alexander M. Smith of Smith & NeS-mith, P.C., Oneonta, for appellants.
    Maxwell H. Pulliam and Richard M. Thayer of Christian & Small LLP, Birmingham, for appellee.
   THOMAS, Judge.

Orvid Dwight Jones and William D. Jones (hereinafter sometimes referred to collectively as “the Jones defendants”) appeal from a judgment of the Blount Circuit Court in favor of Daryl R. Sherrell on his claims regarding his disassociation from and the dissolution of The Great Pumpkin Patch (“the GPP”), a partnership that the parties had formed and operated.

Facts and Procedural History

In 1992, Sherrell, William, and Jim Brand formed the GPP. The GPP operated a working pumpkin farm where people could, for a fee, harvest a pumpkin from its fields, purchase foods and beverages, and participate in other activities. The GPP was typically open to the public during October of each year. After the GPP’s first year of operation, Orvid replaced Brand as the third partner in the GPP and the GPP began operating on a parcel of property owned by Orvid, where it continued to operate at all times relevant to this case. The parties did not create a written partnership agreement; however, the parties orally agreed that each would own a one-third share in the GPP and that the parties would equally share in the GPP’s profits and liabilities.

In 2005, Sherrell’s wife, Alice, filed for a divorce. Thereafter, the Jones defendants excluded Sherrell from the operations of the GPP. The GPP continued to operate during 2005 and 2006; the GPP ceased its operations at the end of 2006. The Jones defendants did not pay Sherrell a distribution of the GPP’s profits in 2005, and they did not pay Sherrell for his one-third ownership interest in the GPP.

Sherrell sued the Jones defendants, requesting that the trial court dissolve the GPP, conduct an accounting, and supervise the winding up of the GPP’s affairs, pursuant to the Uniform Partnership Act (“the UPA”), codified at Ala.Code 1975, § 10-8A-101 et seq. In his complaint, Sherrell also claimed that the Jones defendants had breached their fiduciary duty to Sherrell, pursuant to § 10-8A-404 of the UPA, and that the Jones defendants had converted partnership assets for the Jones defendants’ personal use. Sherrell further requested that the trial court impose a constructive trust on the assets and proceeds of the GPP. The trial court held a hearing on Sherrell’s complaint, at which it heard ore tenus evidence.

Sherrell handled the finances for the GPP from its inception through 2004. Sherrell testified that he and sometimes William and/or Alice would count the money at the end of each day and that Sherrell would then take the money home and keep it in a safe. Sherrell would deposit some of the money in the bank each week to ensure that the GPP had enough money to cover its expenses. Sherrell further testified that he delivered the financial information to the accountant who prepared the income-tax forms for the GPP each year through 2004. According to Sherrell, the parties agreed that they would not keep any written records of the GPP’s revenues and that they would not report all the GPP’s income to the Internal Revenue Service (“IRS”). Sherrell stated that the GPP had underreported its income to the IRS every year that he was actively involved with the GPP. According to Sher-rell, at the end of each year the parties would split whatever cash had accumulated in the safe at Sherrell’s house. Sherrell testified that he had received a $30,000 cash distribution from the GPP in 2004. William also admitted that he had received approximately $30,000 in cash as a distribution in 2004.

In 2001, the GPP borrowed $185,000 to add a Christmas-lights display to the attractions at the GPP. The GPP made periodic payments on the loan until it was paid off in 2008. After 2004, Sherrell did not contribute to the payment of the remaining loan balance.

Sherrell testified that in 2004 approximately 500 schoolchildren had visited the GPP each weekday during the monthlong season when it was open. Sherrell also testified that between 3,000 and 5,000 people had visited the GPP on each weekend. Sherrell further testified that, from his personal observations, the attendance in the following years had been similar to the attendance in 2004. Martha Franklin, an employee of the GPP, and Franklin Lackey, a private investigator hired by Sher-rell, each observed the operation of the GPP in October 2006 and testified as to their estimates of the number of vehicles in the parking lot, the number of attendees, and the average amount of money spent per person at the GPP. Franklin’s and Lackey’s observations corresponded with Sherrell’s observations that attendance at the GPP in 2005 was equivalent to the attendance in 2004.

Alice testified that she began handling the finances for the GPP after Sherrell was excluded from its operation. According to Alice, she deposited in the bank all the revenue earned by the GPP in 2005; she stated that no money was held back except for a small amount that the GPP had needed for its daily operation. Alice further testified that there was no cash left over at the end of 2005 after the GPP had made its payment on the outstanding Christmas-lights-display loan. William testified that his share of the distribution of the profits for 2005 was $7,621. William and Alice both testified that the GPP had a lower profit in 2005 even though its reported revenue had increased as compared to 2004. Alice also testified that fewer people had visited the GPP in 2005 than in 2004.

According to William, Sherrell had retained the checkbook for the GPP and the money left in Sherrell’s safe at the beginning of 2005. Sherrell admitted that he had retained the money that was in his safe at the beginning of 2005 and the checkbook for the GPP account. Sherrell stated that the safe had contained an unknown amount of money in change and that the GPP account had contained approximately $6,000 at the end of 2004.

Jackie Pearce, an expert witness on the subject of business evaluation, testified that he had reviewed the available financial information relating to the GPP and had concluded that the revenue and profit reported on the GPP’s 2005 income-tax return was less than the GPP’s actual revenue and profit. Pearce stated that he had reached his conclusion after personally observing the business operation and after reviewing Franklin’s and Lackey’s reports, the GPP’s bank records for 2005 and 2006, the school-group-reservation logs, and the GPP’s tax returns for 2005 and 2006. Pearce stated that, based on his evaluation, Sherrell should have received $30,000 as a distribution for his share of the GPP’s profits in 2005.

The trial court entered a judgment dissolving the GPP, awarding Sherrell $30,000 as a partnership-profit distribution for 2005, $32,167 as Sherrell’s partnership interest in the GPP, $12,744.24 in prejudgment interest, and $20,000 as an attorney fee. In its judgment, the trial court offset the amounts awarded to Sherrell by $34,077.90, representing Sherrell’s portion of the outstanding debt of the GPP at the time of Sherrell’s disassociation. Both Sherrell and the Jones defendants filed postjudgment motions, which the trial court denied. The Jones defendants appealed to the Alabama Supreme Court, and that court transferred this case to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Issues

The Jones defendants raise three issues in their appeal: (1) whether the trial court had sufficient evidence to support its award to Sherrell of $30,000 as a partnership-profit distribution for 2005 and $32,167 as Sherrell’s interest in the GPP; (2) whether the trial court erred when it awarded Sherrell prejudgment interest; and (3) whether the trial court had sufficient evidence to support its award of an attorney fee to Sherrell.

Standards of Review

The trial court based its partnership-profit-distribution award and its partnership-interest award on disputed evidence that it heard ore tenus.

“ ‘ “ ‘[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 ore tenus standard of review extends to the trial court’s assessment of damages.” Edwards v. Valentine, 926 So.2d 315, 325 (Ala.2005). The trial court’s determination whether prejudgment interest is available is a question of law; therefore, we review it de novo. Jernigan v. Happoldt, 978 So.2d 764, 767 (Ala.Civ.App.2007).

“ ‘An award of attorney fees, where permissible, is a matter within the discretion of the trial court and will not be reversed on appeal absent a showing that the trial court abused its discretion.’ ” Feil v. Wittern Group, Inc., 784 So.2d 302, 315 (Ala.Civ.App.2000) (quoting ISS Int'l Serv. Sys., Inc. v. Alabama Motor Express, Inc., 686 So.2d 1184, 1189 (Ala.Civ. App.1996)).

Analysis

The Jones defendants first argue that the evidence was insufficient to support the trial court’s award to Sherrell of $30,000 as a distribution of his share of the GPP’s profits for 2005 because, the Jones defendants say, the damages were based on speculation and conjecture.

“It is true that damages may be awarded only where they are reasonably certain. Damages may not be based upon speculation. Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So.2d 812 (Ala.1988); see also Alabama Power Co. v. Alabama Public Service Commission, 267 Ala. 474, 103 So.2d 14 (1958)....’ ... [The plaintiff] must produce evidence tending to show the extent of damages as a matter of just and reasonable inference.’ C. Gamble, Alabama Law of Damages § 7-1 (2d ed. 1988), as cited in Industrial Chemical, supra, at 820. The rule that one cannot recover uncertain damages relates to the nature of the damages, and not to their extent. If the damage or loss or harm suffered is certain, the fact that the extent is uncertain does not prevent a recovery. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931); see also Shook v. Vertagreen Credit Union, 460 So.2d 1343 (Ala.Civ.App.1984).”

Jamison, Money, Farmer & Co. v. Standeffer, 678 So.2d 1061, 1067 (Ala.1996). The Alabama Supreme Court has further stated that

“ ‘[t]he uncertainty which prevents a recovery is uncertainty as to the fact of the damage and not as to its amount and ... where it is reasonably certain that damage has resulted, mere uncertainty as to the amount will not preclude the right to recovery or prevent a ... decision awarding damages. This view has been sustained where, from the nature of the case, the extent of the injury and the amount of the damage are not capable of exact and accurate proof. Under such circumstances, all that can be required is that the evidence — with such certainty as the nature of the particular case may permit — lay a foundation which will enable the trier of facts to make a fair and reasonable estimate of the amount of damage. The plaintiff will not be denied a substantial recovery if he has produced the best evidence available and it is sufficient to afford a reasonable basis for estimating his loss.’

Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126, 1132 (Ala.1992)(quoting United Bonding Ins. Co. v. W.S. Newell, Inc., 285 Ala. 371, 380, 232 So.2d 616, 624 (1969)).

In this case, Sherrell submitted the testimony of Jackie Pearce, a certified public accountant, who was tendered as an expert in business evaluation. Pearce testified that he determined that Sherrell should have received $30,000 as a partnership-profit distribution in 2005. Pearce based his expert opinion on his interviews with Sherrell, a review of William’s deposition testimony, Pearce’s observations of the business operation, the available documentation concerning school-group visits, the history of partnership distributions, the 2005 and 2006 tax returns, and the 2006 bank statements. Pearce’s testimony goes beyond mere speculation and conjecture; rather, it is based on an expert analysis of the best information available relating to the operation of the business. Thus, Pearce’s testimony went beyond mere speculation or conjecture and provided the trial court with a sufficient basis for its determination of the amount of the 2005 partnership-profit distribution that it awarded to Sherrell. Ricwil, Inc., supra.

The Jones defendants state in the issue statement in their brief that the evidence is insufficient to support the trial court’s award of $82,167 as the value of Sherrell’s partnership interest in the GPP. However, the Jones defendants do not make any argument concerning the partnership-interest award in their brief. “‘An argument not made on appeal is abandoned or waived.’ ” Muhammad v. Ford, 986 So.2d 1158, 1165 (Ala.2007) (quoting Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala.2008)). Therefore, we need not further consider this issue.

Secondly, the Joneses argue that Sherrell was not entitled to an award of prejudgment interest. In support of their argument, the Jones defendants cite Kennedy v. Polar-BEK & Baker Wildwood, 682 So.2d 443 (Ala.1996), for the proposition that in a breach-of-contract action prejudgment interest is properly awarded when the amount in controversy is a sum certain. However, Kennedy is inapposite.

Sherrell’s action is not a breach-of-contract action; rather, Sherrell brought his action under the UPA, which allows for the award of prejudgment interest in an action to determine the amounts owed to a disassociated partner. See Ala.Code 1975, § 10-8A-701(i) (stating that a court shall include the amount of any accrued interest in its award to a disassociated partner) and subsection 3 to Comment to § 10-8A-701 (stating that “[s]ince the buyout price is based on the value of the business at the time of dissociation, the partnership must pay interest on the amount due from the date of dissociation....”). Because the UPA authorizes an award of prejudgment interest and because the Jones defendants make no other argument concerning the prejudgment-interest award, we find no error on the part the trial court on this issue.

Finally, the Jones defendants argue that the evidence before the trial court was insufficient to support its award of $20,000 as an attorney fee. During the trial, Sherrell introduced into evidence a summary of his claimed damages. In that summary, Sherrell listed that he had paid $21,710.92 in attorney fees and that he had been billed for an additional $25,222.18 in attorney fees. The Jones defendants did not object to the introduction of this evidence, and they did not challenge the reasonableness or accuracy of Sherrell’s claimed attorney fees. The Jones defendants also did not challenge the trial court’s award of an attorney fee in their postjudgment motion. It is well settled that “[t]his Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). Because the Jones defendants did not make any argument in the trial court concerning the reasonableness of its award of an attorney fee, they have waived that argument on appeal. See Abernant Fire Dep’t v. Rhodes, 21 So.3d 739, 745 (Ala.Civ.App.2009) (holding that when a party does not challenge the reasonableness of the award of an attorney fee in the trial court that party waives that argument on appeal).

Conclusion

Because the Jones defendants have not shown any error by the trial court in its determination of damages, its award of prejudgment interest, or its award of an attorney fee, the trial court’s judgment is due to be affirmed.

AFFIRMED.

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

      . Orvid is Alice's father, and William is Alice's brother.