text:
    Alma BEASLEY v. Debra POOLE.
    2090519.
    Court of Civil Appeals of Alabama.
    Oct. 1, 2010.

      Alma Beasley, pro se.
    Chrissy Dooley-Calhoun, Eclectic, for appellee.
   BRYAN, Judge.

Alma Beasley (“Alma”), the plaintiff below, appeals from a judgment in favor of the defendant below Debra Poole. We affirm.

The judgment of the trial court states:

“[This action] came before the Court on [a]ppeal from [the Montgomery] District Court for a [fjinal [h]earing on December 16, 2009. After a review of the complaint, evidence presented, and argument, this Court finds the following facts:
“1. [Alma] on or about September 1, 2008 [met] with [Poole, a licensed attorney,] and hired her to handle a foreclosure/ejectment proceeding [being prosecuted against] Fredrick Beasley[, who is Alma’s son],
“2. [Alma] paid [Poole] $1500.00 of the requested $2500.00 retainer to handle the matter and [Alma] signed an engagement letter that specifically detailed [Poole’s] in-court and out-of court hourly rate.
“3. [Alma] allowed her daughter, Audra Beasley[,] against the advice of counsel[,] to file motions on or about October 28, 2008 as a Pro se litigant [i]n the matter ... which [Alma] had hired [Poole] to handle.
“4. On or about November 7, 2008, [Poole] withdrew [from representing Frederick Beasley in the foreclosure/ejectment proceeding] after [a] disagreement on how to proceed in the matter, in particular because of Audra Beasley’s Pro se filings.
“5. On or about November 10, 2008, [Poole] forwarded to [Alma] an itemized invoice of the work performed up to the date of counsel’s withdrawal. “6. Audra Beasley appeared before the Court as representative] for her mother, Alma Beasley[,] and brother, Fredrick Beasley, requesting that [Poole] return to Alma Beasley all money paid to [Poole]. Audra Beasley is not an attorney.
“In addition to the above, the subject matter for which [Poole] was hired involves [Alma’s] son and daughter-in-law, Fredrick and Jackie Beasley, and not [Alma]. Although Audra Beasley considers herself a party in this matter — she is not. [Alma] signed the contract with [Poole] as well as the receipt evidencing payment of the retainer to [Poole]. Furthermore, the foreclosure/ejectment proceeding was instigated against the mortgagors, Fredrick and Jackie Beasley, not Audra Beasley nor Alma Beasley, and thus Fredrick and Jackie Beasley would be the actual clients of [Poole] despite who in fact paid the retainer and the proper plaintiffs in this matter.
“[Based on t]he fact that the actual parties, Fredrick and Jackie Beasley, did not prosecute this matter and the further fact that Audra Beasley is not an attorney and therefore could not represent any of the individuals she purports to represent, ... the Court finds and enters judgment in favor of [Poole].”

The principal brief and reply brief submitted to this court on behalf of Alma were prepared by Audra Beasley (“Audra”), Alma’s daughter. As noted in the judgment of the trial court, Audra is not a licensed attorney. Section 34-3-6(a), Ala.Code 1975, provides that “[o]nly such persons as are regularly licensed have authority to practice law.” In pertinent part, § 34 — 3—6(b)(1), Ala.Code 1975, provides that, for purposes of § 34 — 3—6(a), a person is practicing law if he or she “[i]n a representative capacity appears as an advocate or draws papers, pleadings or documents, or performs any act in connection with proceedings pending or prospective before a court....” Thus, Audra’s preparation of the briefs submitted on behalf of Alma constitutes the unauthorized practice of law under § 34-3-6.

The supreme court has held that a pleading filed by a nonattorney who is engaging in the unauthorized practice of law by purporting to represent another party is a nullity. See Ex parte Ghafary, 738 So.2d 778, 781 (Ala.1998). Under the supreme court’s holding in Ghafary, we conclude that the briefs prepared by Audra and submitted to this court on behalf of Alma are nullities. Thus, we have no briefs before us delineating any issues on behalf of Alma or presenting argument on her behalf. “ ‘An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief. Ex parte Riley, 464 So.2d 92 (Ala.1985).’ ” Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (emphasis omitted; quoting Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988)). Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

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

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

      . A copy of a power of attorney authorizing Audra to act as Alma’s attorney-in-fact is attached to the principal brief submitted on behalf of Alma. That power of attorney is not a part of the record on appeal, and, therefore, we cannot consider it. See Ex parte Ruggs, 10 So.3d 7, 10 n. 2 (Ala.2008) (“Appellate courts are not permitted to consider matters outside the record. See, e.g., Etherton v. City of Homewood, 700 So.2d 1374, 1378 (Ala.1997). ‘ " ‘[AJttachments to briefs are not considered part of the record and therefore cannot be considered on appeal.' " ' Roberts v. NASCO Equip. Co., 986 So.2d 379, 385 (Ala.2007) (quoting Morrow v. State, 928 So.2d 315, 320 n. 5 (Ala.Crim.App.2004), quoting in turn Huff v. State, 596 So.2d 16, 19 (Ala.Crim.App.1991)).”). Moreover, even if we could consider it, it would not authorize Alma to engage in the unauthorized practice of law Cf. Ex parte Ghafary 738 So.2d 778 (Ala.1998) (holding that a nonattorney executrix of an estate could not serve as legal counsel for the estate in an action); and Chambers v. Tibbs, 980 So.2d 1010 (Ala.Civ.App.2007) (holding that although Rule 17(c) Ala. R. Civ. P. authorizes representatives to sue on behalf of minors, it does not confer upon them any right to serve as legal counsel for the minors in such actions).


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Henry ANDREWS and Thomas Andrews, individually and as executors of the estate of Willie Mae Andrews, deceased v. CENTRAL PETROLEUM, INC.
    2090498.
    Court of Civil Appeals of Alabama.
    Oct. 15, 2010.

      J. Milton Coxwell, Jr., of Coxwell & Coxwell, Monroeville, for appellants.
    Edward T. Hines of Thompson, Garrett & Hines, L.L.P., Brewton, for appellee.
   BRYAN, Judge.

The plaintiffs below, Henry Andrews (“Henry”) and Thomas Andrews (“Thomas”), individually and as executors of the estate of Willie Mae Andrews (“Willie Mae”), deceased, appeal from a judgment in favor of the defendant below, Central Petroleum, Inc. (“Central”). We affirm.

Henry and Thomas are Willie Mae’s sons. Her will named them as her executors and left all of her property to them in equal shares. On December 19, 2009, Henry and Thomas, individually and as the executors of Willie Mae’s estate, sued Central, a Mississippi corporation. They sought a judgment declaring that a royalty deed executed and delivered by Willie Mae to Central on January 22,1998 (“the royalty deed”), which conveyed to Central Willie Mae’s royalty interest with respect to the mineral estate associated with certain land in Monroe County, was void because, they said, (1) Central was a foreign corporation that had not qualified to do business within Alabama when the royalty deed was executed and delivered on January 22, 1998, see § 10-2B-15.02(a), Ala.Code 1975, (2) the royalty deed was unconscionable due to the unequal bargaining positions of the parties, and (3) the execution and delivery of the royalty deed were induced by fraud on the part of Central.

After Central answered the complaint, the trial court held a bench trial on July 20, 2009. On September 16, 2009, the trial court entered a judgment declaring that the royalty deed was not void. On October 9, 2009, Henry and Thomas moved the trial court to alter, amend, or vacate the judgment because, they said, the trial court had erred in determining that § 10-2B-15.02(a) did not render the royalty deed void. Their motion was denied by operation of law on January 7, 2010. See Rule 59.1, Ala. R. Civ. P. Henry and Thomas then timely appealed to the supreme court on February 11, 2010. Thereafter, the supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Initially, we note that Henry and Thomas have not presented any argument regarding their claims that the royalty deed was void on the grounds of unconscionability or fraud in the inducement. Therefore, they have waived those claims. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (“ ‘When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala.1982).’ Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996).”).

Thus, the only claim before us is Henry and Thomas’s claim that the royalty deed is void because Central was a foreign corporation that was not qualified to do business within Alabama when the royalty deed was executed and delivered on January 22, 1998. The parties agree that the facts material to that claim are undisputed. Those facts are as follows.

In January 1998, Central was a Mississippi corporation that was engaged in the business of trading in oil and gas leases and royalty interests and participating in the drilling of oil and gas wells. Although it was not qualified to do business within Alabama, Central mailed from Mississippi approximately 45 to 50 solicitation letters addressed to the owners of mineral royalty interests in Monroe County, Alabama. The letters made an offer to buy the addressees’ mineral royalty interests and enclosed royalty deeds for the addressees to execute and return to Central if they accepted Central’s offer. The letters also enclosed drafts in payment for the addressees’ mineral royalty interests, which the addressees could negotiate if they accepted Central’s offer. One of the letters was addressed to Willie Mae. Willie Mae executed the royalty deed on January 22, 1998, in her attorney’s office in Monroe County and mailed it to Central. Willie Mae presented Central’s draft in the amount of $1,037 for payment at her bank in Alabama, and Central’s bank in Mississippi paid the draft. After receiving the executed royalty deed from Willie Mae, Central mailed it to the office of the Probate Judge of Monroe County (“the probate judge”) for recording. In addition to Willie Mae’s mineral royalty interest, Central acquired the mineral royalty interests of approximately 16 other persons in Monroe County in January and February 1998. Central does not have an office in Alabama and does not have any agents in Alabama.

Because the facts material to this appeal are undisputed, we apply a de novo standard of review. In Rogers Foundation Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999), our supreme court stated:

“ ‘ “[W]hen a trial court sits in judgment on facts that are undisputed, an appellate court will determine whether the trial court misapplied the law to those undisputed facts.’” Harris v. McKenzie, 703 So.2d 309, 313 (Ala.1997) (quoting Craig Constr. Co., Inc. v. Hendrix, 568 So.2d 752, 756 (Ala.1990)). The ore tenus ‘standard’s presumption of correctness has no application to a trial court’s conclusions on questions of law.’ Beavers [v. Walker County], 645 So.2d [1365] at 1372 [ (Ala.1994) ]. ‘[0]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court’s review is de novo.’ Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997).”

Henry and Thomas argue that the trial court erred in determining that the royalty deed was not void because, they say, Central was engaging in intrastate commerce in the transaction with Willie Mae and, therefore, § 10-2B-15.02(a) rendered the royalty deed void. In response, Central argues that it was engaged in interstate commerce in its transaction with Willie Mae and, therefore, that the Commerce Clause of the United States Constitution (“the Commerce Clause”) barred § 10-2B-15.02(a) from applying to Central’s transaction with Willie Mae.

In TradeWinds Environmental Restoration, Inc. v. Brown Bros. Construction, L.L.C., 999 So.2d 875, 878-79 (Ala.2008), the supreme court stated:

“ ‘[Section 10-2B-15.02(a) ] is part of a statutory scheme that requires foreign corporations to receive a certificate of authority to do business in this State before transacting business here.’ Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1370 (Ala.1988). ‘Failure to secure such a certificate means that the foreign corporation cannot enforce a contract entered into in this State.’ 525 So.2d at 1370. ‘A foreign corporation that has not been authorized to do business in Alabama is not barred from enforcing its contracts in the courts of this state, however, “unless the business conducted here by [the] nonqualified corporation[ ] is considered ‘intrastate’ in nature.” ’ Building Maintenance Pers., Inc. v. International Shipbuilding, Inc., 621 So.2d 1303, 1304 (Ala.1993) (quoting Wise v. Grumman Credit Corp., 603 So.2d 952, 953 (Ala.1992)). This is because ‘businesses engaged in interstate commerce are protected by the commerce clause in the United States Constitution, U.S. Const., Art. I, § 8, cl. 3, and are therefore immune from the effects of the “door closing” statutes.’ Stewart Mach. & Eng’g Co. v. Checkers Drive In Rests. of N. America, Inc., 575 So.2d 1072, 1074 (Ala.1991). Because TradeWinds concedes that it was not qualified to do business in Alabama at the time the contract was entered into, or, for that matter, at the time of performance under the contract, ‘the focus of this case is on whether [TradeWinds] was engaged in interstate or intrastate commerce; this issue is ultimately decided on a case-by-case basis.’ Stewart Mach. & Eng’g, 575 So.2d at 1074. ‘[I]n determining whether a corporation is doing business in Alabama within the meaning of § [10-2B-15.02,] courts are flexible and decide each case on its own facts.’ Green Tree Acceptance, 525 So.2d at 1370.
“In Eli Lilly & Co. v. Sav-On-Drugs, Inc., 366 U.S. 276, 81 S.Ct. 1316, 6 L.Ed.2d 288 (1961), the Supreme Court of the United States addressed when a state may require a foreign corporation to obtain a certificate of authority to do business in the state. The Supreme Court stated:
“ ‘Lilly is free to send salesmen into New Jersey to promote this interstate trade without interference from regulations imposed by the State. On the other hand, it is equally well settled that if Lilly is engaged in intrastate as well as interstate aspects of the New Jersey drug business, the State can require it to get a certificate of authority to do business. In such a situation, Lilly could not escape state regulation merely because it is also engaged in interstate commerce. We must then look to the record to determine whether Lilly is engaged in intrastate commerce in New Jersey.’
366 U.S. at 279, 81 S.Ct. 1316 (footnote omitted). Alabama caselaw also holds that § 10-2B-15.02, Ala.Code 1975, is applicable to those entities that engage in intrastate business and fail to register. See Brown v. Pool Depot, Inc., 853 So.2d 181, 185 (Ala.2002) (‘ “It has been held that a foreign corporation doing business in this state without qualifying cannot use our courts to enforce its contracts. Continental Telephone Corp. v. Weaver, 410 F.2d 1196 (5th Cir.1969). Alabama Const, art. XII, § 232, and §§ 10-2A-247 and 40-14-4, Code 1975 [now codified as 10-2B-15.02, Ala.Code 1975], prohibit a nonqualified foreign corporation from enforcing a contract made in Alabama if it is doing business in Alabama.” ’ (quoting Competitive Edge, Inc. v. Tony Moore Buick-GMC, Inc., 490 So.2d 1242, 1244 (Ala.Civ.App.1986))). Thus, whether § 10-2B-15.02 applies to a contract involving a foreign corporation turns on whether the foreign corporation, whether or not engaged in interstate commerce, is engaged in intrastate business.”

No party has cited any caselaw squarely on point. However, in SGB Construction Services, Inc. v. Ray Sumlin Construction Co., 644 So.2d 892 (Ala.1994), the supreme court held that Shore/Form Systems, Inc. (“Shore/Form”), a foreign corporation that was not qualified to do business within Alabama, had not engaged in intrastate commerce in Alabama by actively soliciting business in Alabama and shipping equipment to Alabama pursuant to an equipment lease that resulted from that solicitation. The supreme court stated:

“The undisputed evidence in this case shows that Shore/Form actively sought to lease SGB [Construction Services, Inc.,] equipment for use in the construction of the [Mobile Infirmary Medical Center’s] parking deck and that it was eventually successful in that endeavor. Shore/Form shipped the equipment by common carrier from its Florida plant to the Mobile construction site. Shore/ Form had no offices or plants in Alabama, kept no employees here on a permanent basis, and was not involved in any respect with the actual construction of the parking deck in Mobile. These facts are not sufficient under Alabama law to support the trial court’s conclusion that Shore/Form was engaged in the transaction of intrastate business. This Court has consistently held that the mere solicitation of business in Alabama and business contacts incidental thereto do not constitute the transaction of intrastate business. Furthermore, where a transaction requires only the sale or lease of goods and a delivery of those goods into Alabama, we have held it to be within the scope of interstate commerce.”

644 So.2d at 894.

Thus, SGB Construction Services indicates that Central’s soliciting the purchase of mineral royalty interests in Alabama and the execution of royalty deeds pursuant to that solicitation did not constitute intrastate commerce for purposes of determining whether the Commerce Clause bars the application of § 10-2B-15.02(a). Nonetheless, citing Ex parte TranSouth Financial Corp., 608 So.2d 885 (Ala.1992), and Ex parte Swift Loan & Finance Co., 667 So.2d 706 (Ala.1995), Henry and Thomas argue that Central’s recording the royalty deed in Alabama constitutes intrastate commerce within Alabama for purposes of determining whether the Commerce Clause bars the application of § 10-2B-15.02(a) because the recording of the royalty deed was directly related to Central’s corporate purpose of trading in mineral royalty interests.

In TranSouth, Patsy 0. Morrell, a resident of Crenshaw County, sued TranSouth Financial Corporation (“TranSouth”), Associates Financial Life Insurance Company (“Associates”), and several individuals (collectively “the defendants”) in the Cren-shaw Circuit Court. The defendants moved the Crenshaw Circuit Court to transfer the action to the Pike Circuit Court on the ground that venue was not proper in the Crenshaw Circuit Court because, they said, neither TranSouth nor Associates was doing business in Cren-shaw County. Opposing the motion, Mor-rell argued “that TranSouth was ‘doing business’ in Crenshaw County by virtue of its filing mortgages and other security instruments at the county courthouse.” 608 So.2d at 385. The Crenshaw Circuit Court denied the motion, and the defendants petitioned the supreme court for a writ of mandamus. Denying the petition, the supreme court stated:

“TranSouth’s primary corporate purpose is making loans. As part of carrying out its primary corporate purpose, TranSouth filed mortgages at the Cren-shaw County courthouse. It has carried out other business, ancillary to the securing or collecting of mortgage debt, at the Crenshaw County courthouse. Therefore, we hold that the filing of mortgages and foreclosure deeds at the Crenshaw County courthouse is sufficient in this case to support a finding, for venue purposes, that TranSouth is ‘doing business’ in Crenshaw County. However, we do not wish to be understood as stating that such actions, which are inherently connected with the business of lending money, will constitute ‘doing business’ for venue purposes when the corporation’s primary purpose is something other than lending money. See Holman v. Durham Buggy Co., 200 Ala. 556, 557, 76 So. 914, 915 (1917).”

608 So.2d at 387.

In Swift, Randy Youngblood, a resident of Bullock County, sued Swift Loan and Finance Company, Inc., d/b/a Muscogee Credit Company (“Muscogee”), a Georgia corporation, and Phenix Drive In Motors (“Phenix”), a sole proprietorship owned by Steven Shepard and operating in Russell County, in the Bullock Circuit Court. Muscogee and Phenix moved the Bullock Circuit Court to transfer the action to the Russell Circuit Court on the ground that venue was improper in Bullock County because neither Muscogee nor Phenix was doing business in Bullock County and on the ground that, even if venue were proper in Bullock County, the action should be transferred based on the doctrine of forum nonconveniens. The Bullock Circuit Court denied the motion, and Muscogee and Phe-nix petitioned the supreme court for a writ of mandamus. Denying the petition, the supreme court stated, in pertinent part:

“[V]enue is ... proper in Bullock County, because Muscogee was ‘doing business’ in that county. See § 6-3-7. Muscogee had recorded at least one real estate mortgage in Bullock County and it continues to transact business there concerning that mortgage. Accordingly, Muscogee has an interest in real property in Bullock County. Furthermore, Muscogee is in the business of making loans, and, as part of its corporate purpose to make loans, it obtained a security interest in real property located in Bullock County. Therefore, we must conclude that Muscogee was ‘doing business’ in Bullock County, for the purposes of venue. Ex parte TranSouth Financial Corp., 608 So.2d 385 (Ala. 1992).”

667 So.2d at 708.

TranSouth and Swift hold that a foreign corporation’s recording an instrument directly related to its corporate purpose in a county in Alabama where it does not otherwise do business constitutes “doing business” in that county for purposes of determining the venue of an action against that foreign corporation. However, those cases do not hold that a foreign corporation’s recording a deed directly related to its corporate purpose in Alabama changes a transaction involving that deed that would otherwise constitute interstate commerce into a transaction constituting intrastate commerce for purposes of determining whether the Commerce Clause bars the application of § 10-2B-15.02(a).

As noted above, the holding of the supreme court in SGB Construction Services that the active solicitation of business in Alabama and the shipping of equipment to Alabama pursuant to an equipment lease executed as a result of that solicitation do not constitute intrastate commerce for purposes of determining whether the Commerce Clause bars the application of § 10-2B-15.02(a) indicates that Central’s soliciting the purchase of mineral royalty interests in Alabama and the execution of royalty deeds as a result of that solicitation did not render its transaction with Willie Mae intrastate for purposes of determining whether the Commerce Clause bars the application of § 10-2B-15.02. We are not persuaded by Henry and Thomas’s argument that the mere recording of the royalty deed changed what was otherwise interstate commerce into intrastate commerce for purposes of determining whether the Commerce Clause bars the application of § 10-2B-15.02. Thus, we conclude that the transaction between Willie Mae and Central constituted interstate commerce for purposes of determining whether the Commerce Clause barred the application of § 10-2B-15.02 to that transaction and, therefore, that the Commerce Clause barred the application of § 10-2B-15.02(a) to that transaction. Thus, because we conclude that the royalty deed was not void by virtue of § 10-2B-15.02(a), we affirm the judgment of the trial court.

AFFIRMED.

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

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

      . In pertinent part, the version of § 10-2 ISIS.02(a) that was in effect on January 22, 1998, provided:
      "All contracts or agreements made or entered into in this state by foreign corporations prior to obtaining a certificate of authority to transact business in this state shall be held void at the action of the foreign corporation or by any person claiming through or under the foreign corporation by virtue of the contract or agreement; but nothing in this section shall abrogate the equitable rule that he who seeks equity must do equity.”
      Section 10-2B-15.02(a) was amended effective January 1, 2000.

      . Henry and Thomas do not argue that Central's ownership of a mineral royalty interest in land, located in Alabama by virtue of the royalty deed made the transaction involving Willie Mae and Central intrastate rather than interstate for purposes of determining whether the Commerce Clause bars the application of § 10-2B-15.02(a). " 'When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala.1982).’ Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996).” Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d at 319.


author: THOMAS, Judge.

text:
    Steve SEXTON and Frances Sexton v. BASS COMFORT CONTROL, INC., and Waterfurnace International, Inc.
    2090687.
    Court of Civil Appeals of Alabama.
    Nov. 19, 2010.

      Christopher E. Sanspree of Sanspree & McRight, LLC, Montgomery, for appellants.
    Alan T. Hargrove, Jr., and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery; and Michael S. Harper, Tallassee, for appellee Bass Comfort Control, Inc.
    Gerald C. Swann, Jr., and Emily C. Marks of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellee Waterfur-nace International, Inc.
   THOMAS, Judge.

Steve Sexton and Frances Sexton appeal from a summary judgment entered by the Autauga Circuit Court in favor of Bass Comfort Control, Inc. (“Bass Comfort”), and Waterfurnace International, Inc. (“Waterfurnace”). We affirm in part; reverse in part; and remand.

Facts and Procedural History

In February 2002, the Sextons began building a house. In February or March 2002, Steve discussed the purchase and installation of two Waterfurnace geothermal heating, ventilation, and air-conditioning units (“the HVAC units”) in the Sextons’ house with Rick Rahaim of Wa-terfurnace and George Bass of Bass Comfort. Steve alleged that Rahaim and Bass represented to him that the HVAC units had a 10-year warranty covering parts and labor for repair or replacement of the HVAC units. Steve alleged that Bass again represented to him that the HVAC units had a 10-year parts and labor warranty covering repair or replacement in May 2002, when Bass and Steve met at the Sextons’ house to further discuss the HVAC units. Bass submitted a proposal to the Sextons for the purchase and installation of the HVAC units; the proposal stated that the warranty on the HVAC units was for “10 years labor and parts.” The Sextons accepted the proposal, and Bass Comfort installed the HVAC units in the Sextons’ house.

The Sextons had frequent problems with the HVAC units during the next six years. Each time the Sextons experienced a problem with the HVAC units, Bass Comfort would repair the HVAC units at no cost to the Sextons.

In 2008, Steve contacted Waterfurnace concerning the numerous problems the Sextons had experienced with the HVAC units. In August 2008, Waterfurnace agreed to send two replacement HVAC units to the Sextons at no cost to the Sextons; however, Bass Comfort informed the Sextons that it would not install the replacement HVAC units unless the Sextons paid Bass Comfort $1,500. The Sextons refused to pay Bass Comfort to install the replacement HVAC units.

On December 17, 2008, the Sextons filed a complaint in the trial court against Bass Comfort and Waterfurnace, alleging that Bass Comfort had misrepresented the content and coverage of the warranty on the HVAC units. In their complaint, the Sextons asserted claims of fraudulent misrepresentation, fraudulent suppression, negligent and wanton misrepresentation, and conspiracy; the Sextons sought both compensatory and punitive damages. Bass Comfort and Waterfurnace answered the Sextons’ complaint, denying all the allegations in the Sextons’ complaint. The Sextons twice amended their complaint, adding a breach-of-contract claim and claims alleging that Bass Comfort and Waterfur-nace had fraudulently misrepresented and had fraudulently suppressed the fact that the HVAC units were improperly installed (“the installation claims”). Bass Comfort and Waterfurnace denied the allegations in the Sextons’ amended complaint.

On January 6, 2010, Bass Comfort moved the trial court for a summary judgment on all the Sextons’ claims. In its motion for a summary judgment, Bass Comfort argued that the Sextons’ fraudulent-misrepresentation claim and their fraudulent-suppression claim were barred by the Statute of Frauds. Bass Comfort also argued that the Sextons’ negligent and/or wanton misrepresentation claims were barred by the statute of limitations. Additionally, Bass Comfort argued that there was no contract between Bass Comfort and the Sextons to support a breach-of-contract claim and that there was no evidence to support the Sextons’ installation claims. Finally, Bass Comfort argued that the Sextons’ conspiracy claim should be dismissed because, Bass Comfort alleged, it and Waterfurnace were in a principal-agent relationship and, Bass Comfort argued, an agent and a principal cannot conspire with each other. On January 5, 2010, Waterfurnace moved for a summary judgment on all the Sextons’ claims, arguing that the Sextons had not met their burden of proof as to any of their claims against Waterfurnace.

The Sextons responded to Bass Comfort’s and Waterfurnace’s motions for a summary judgment on February 21, 2010. In their motion in opposition to the summary-judgment motions, the Sextons argued that they had shown that their claims asserting fraudulent misrepresentation and fraudulent suppression are viable. The Sextons also argued that the statute of limitations did not begin to run on their negligent and/or wanton misrepresentation claims until August 2008, when they allege that they first learned that the warranty on the HVAC units did not cover labor costs for the replacement of the HVAC units. Finally, the Sextons agreed that their conspiracy claim should be dismissed, based on Bass Comfort’s admission that it and Waterfurnace were in a principal-agent relationship. The Sextons did not make any argument in opposition to Bass Comfort’s and Waterfurnace’s motions for a summary judgment on the Sexton’s breach-of-contract or installation claims.

After holding a hearing on February 24, 2010, the trial court, on March 5, 2010, entered a summary judgment in favor of Bass Comfort and Waterfurnace on all the Sextons’ claims. The trial court stated that it had considered the submissions of the parties and the arguments of counsel; however, the trial court also stated that the Sextons had “failed to file a response to the Defendants’ Motions for Summary Judgment in accordance with Rule 56(c), [Ala. R. Civ. P.].” The trial court did not make any specific findings of fact or conclusions of law concerning the merits of the motions for a summary judgment. The Sextons then filed a postjudgment motion, which the trial court denied. The Sextons subsequently appealed to the Alabama Supreme Court, and that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Issues

The Sextons raise three issues in their appeal: (1) whether the Sextons filed their response in opposition to Bass Comfort’s and Waterfurnaee’s summary-judgment motions in compliance with Rule 56(c); (2) whether the Sextons’ fraudulent-misrepresentation and fraudulent-suppression claims were barred by the Statute of Frauds and whether the Sextons presented substantial evidence in support of those claims; and (3) whether the statute of limitations had run on the Sextons’ negligent and/or wanton misrepresentation claims.

Standard of Review

“Our review of a summary judgment is de novo. ‘A motion for summary judgment is granted only when the evidence demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c), Ala. R. Civ. P.’ Reichert v. City of Mobile, 776 So.2d 761, 764 (Ala.2000). We apply ‘the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact.’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); System Dynamics Int'l, Inc. v. Boykin, 683 So.2d 419, 420 (Ala.1996). In order to defeat a properly supported motion for a summary judgment, the nonmoving party must present substantial evidence that creates a genuine issue of material fact. ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Borders v. City of Huntsville, 875 So.2d 1168, 1176-77 (Ala.2003). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000); and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala.1991).

Analysis

The Sextons first argue that the trial court erred when it determined that their response to Bass Comfort’s and Wa-terfurnace’s summary-judgment motions was untimely. Rule 56(c)(2) provides that “any statement or affidavit in opposition [to a motion for a summary judgment] shall be served at least two (2) days prior to the hearing [on the summary-judgment motion].” The Sextons filed their response in the trial court and served their response on Bass Comfort and Waterfur-nace on February 21, 2010, which was three days before the February 24, 2010, hearing. Therefore, to the extent that the trial court may have excluded the Sextons’ response to Bass Comfort’s and Waterfur-nace’s motions for a summary judgment, it erred.

The Sextons next argue that the trial court erred when it entered a summary judgment in favor of Bass Comfort and Waterfurnace on the Sextons’ fraudulent-misrepresentation claim and their fraudulent-suppression claim because, the Sextons argue, those claims were not barred by the Statute of Frauds and because, they say, they presented substantial evidence in support of those claims. In its motion for a summary judgment, Bass Comfort argued that the Sextons’ claims of fraudulent misrepresentation and fraudulent suppression were promissory-fraud claims. Bass Comfort further argued that the oral promise that the Sextons allege that Bass Comfort made to them — that the warranty on the HVAC units covered parts and labor for repair or replacement for 10 years — constituted an oral agreement to do something that could not be accomplished in 1 year. Therefore, Bass Comfort alleged, any such agreement was void under the Statute of Frauds. Bass Comfort further argued that “an oral promise that is void by operation of the Statute of Frauds will not support an action against the promisor for promissory fraud.” Bruce v. Cole, 854 So.2d 47, 58 (Ala.2003).

At the summary-judgment hearing, in their postjudgment motion, and in their brief on appeal, the Sextons argue that their fraudulent-misrepresentation claim and their fraudulent-suppression claim were not claims of promissory fraud and that, consequently, the claims were not barred by the Statute of Frauds. “A promissory fraud claim is ‘one based upon a promise to act or not to act in the future.’ ” Allstate Ins. Co. v. Hilley, 595 So.2d 873, 876 (Ala.1992) (quoting Padgett v. Hughes, 535 So.2d 140, 142 (Ala.1988)).

In Hilley, the Alabama Supreme Court considered the question whether an insurance agent’s misrepresentation of the content of an insurance policy constituted promissory fraud. Hilley, 595 So.2d at 875-76. The insurance agent in Hilley represented to the Hilleys that, if their house was destroyed by fire, Allstate would either rebuild the house, replace the house, or pay the Hilleys $35,000. Id. at 875. Sometime after the Hilleys purchased the policy, their house was destroyed by fire; Allstate refused to act in accordance with the representations made by its agent. Id. The Hilleys sued Allstate, asserting, among others, a claim of fraudulent misrepresentation. Id. Our supreme court held that the Hilleys’ fraudulent-misrepresentation claim was not a promissory-fraud claim:

“The Hilleys’ fraud claim arises from the Allstate agent’s representation that, in the event their house was destroyed by fire, Allstate would either rebuild the house, replace the house, or pay the Hilleys the $38,000 that Allstate assessed as the market value of their house. This statement is a representation of the insurance coverage that the Hilleys were purchasing. The statement was not a promise to act in the future. It was, rather, represented to the Hilleys as a present fact of Allstate’s obligations under the insurance policy.”

Hilley, 595 So.2d at 876 (emphasis added; footnote omitted).

In this case, like in Hilley, the promise allegedly made by Bass Comfort was a representation of the present content of the warranty on the HVAC units. The alleged promise was, therefore, a representation of what the Sextons were purchasing, not a promise to perform a future act. Id. Because the alleged promise underlying the Sextons’ fraudulent-misrepresentation and fraudulent-suppression claims was not based on a promise to act in the future, the Sextons’ fraud claims were not based on promissory fraud. Therefore, the Statute of Frauds did not act to bar those claims.

The Sextons also argue that they presented substantial evidence in support of their fraudulent-misrepresentation and fraudulent-suppression claims. The elements of a fraudulent-misrepresentation claim are: “(1) a false representation (2) of a material existing fact (3) reasonably relied upon by the plaintiff (4) who suffered damage as a proximate consequence of the misrepresentation.” Padgett v. Hughes, 535 So.2d at 142. “The elements of a claim of fraudulent suppression are: ‘ “(1) a duty on the part of the defendant to disclose facts; (2) concealment or nondisclosure of material facts by the defendant; (3) inducement of the plaintiff to act; (4) action by the plaintiff to his or her injury.” ’ ” DGB, LLC v. Hinds, 55 So.3d 218, 231 (Ala.2010) (quoting Freightliner, L.L.C. v. Whatley Contract Carriers, L.L.C., 932 So.2d 883, 891 (Ala.2005), quoting in turn Lambert v. Mail Handlers Benefit Plan, 682 So.2d 61, 63 (Ala.1996)).

The Sextons argue that Bass Comfort misrepresented the fact that the HVAC units were covered by a 10-year warranty covering labor and parts for repair and replacement and that it suppressed the true facts concerning the coverage of the Waterfurnaee warranty. The Sextons further state that the misrepresentation of the warranty coverage and the suppression of the true warranty coverage induced them, to their detriment, to purchase the HVAC units. Bass Comfort argues on appeal that the Sextons could not have reasonably relied on the representations of Bass Comfort because, it argues, the written Waterfurnaee warranty does not contain any mention of coverage for replacement-labor costs and the Sextons could have discovered the alleged misrepresentation if they had read the Waterfurnace warranty. See Cook’s Pest Control, Inc. v. Rebar, 28 So.3d 716, 727 (Ala.2009) (quoting Massey Auto., Inc. v. Norris, 895 So.2d 215, 220 (Ala.2004), quoting in turn Foremost Ins. Co. v. Parham, 693 So.2d 409, 421 (Ala.1997))(“ ‘[Rjeliance can be declared unreasonable, as a matter of law, “where the undisputed evidence indicates that the party or parties claiming fraud in a particular transaction were fully capable of reading and understanding their documents, but nonetheless made a deliberate decision to ignore written contract terms” that clearly contradicted the alleged misrepresentations.’ ”).

However, the record before the trial court at the time the summary judgment was entered does not contain any evidence showing when the Sextons received a copy of the Waterfurnaee warranty. Therefore, we cannot determine whether the Sextons could have reviewed the warranty and discovered the allegedly misrepresented and suppressed information before they purchased the HVAC units. Accordingly, we cannot affirm the trial court’s summary judgment on that basis.

Because the Sextons’ fraudulent-misrepresentation and fraudulent-suppression claims are not based on promissory fraud and because there is no evidence indicating that the Sextons were not entitled to reasonably rely on Bass Comfort’s alleged misrepresentations, the trial court erred insofar as it entered a summary judgment in favor of Bass Comfort and Waterfur-nace on the Sextons’ fraudulent-misrepresentation and fraudulent-suppression claims.

The Sextons next argue that the trial court erred when it entered a summary judgment on their claims of negligent and/or wanton misrepresentation because, they say, the statute of limitations had not run on those claims.

“The elements of a misrepresentation claim are (a) a false representation of an existing material fact; (b) a representation (1) that the speaker knew was false when made, (2) that was made recklessly and without regard to its truth or falsity, or (3) that was made by telling the listener that the speaker had knowledge that the representation was true while having no such knowledge; (c) reliance by the listener on the representation, coupled with deception by it; (d) the reasonableness of that reliance under the circumstances; and (e) damage to the listener proximately resulting from his or her reasonable reliance. Cato v. Lowder Realty Co., 630 So.2d 378, 381-82 (Ala.1993); Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala.1997) (readopting the ‘reasonable reliance’ standard). Reasonable reliance is shown ‘[i]f the circumstances are such that a reasonably prudent person who exercised ordinary care would [not] have discovered the true facts.’ Torres v. State Farm Fire & Cas. Co., 438 So.2d 757, 759 (Ala.1983).”

City of Prattville v. Post, 831 So.2d 622, 628 (Ala.Civ.App.2002).

In its motion for a summary judgment, Bass Comfort argued that the Sextons’ negligent and/or wanton misrepresentation claims were barred by the statute of limitations. Bass Comfort argued that the injury to the Sextons accrued, and the statute of limitations began to run, when Bass Comfort made the alleged misrepresentations to the Sextons.

In Alfa Life Insurance Corp. v. Jackson, 906 So.2d 143 (Ala.2005), the Alabama Supreme Court considered the question whether claims of fraudulent misrepresentation and negligence in connection with the purchase of an insurance policy had become ripe. The insurance agent in Jackson represented to the Jacksons that the insurance policies that they were purchasing would be “paid up” in 15 years— meaning that, although the insurance coverage would continue, the Jacksons would no longer have to pay any premiums on the policies. Jackson, 906 So.2d at 147. Contrary to the agent’s representation, the actual insurance policies did not provide that the policies would be paid up in 15 years. Id. Our supreme court held that because the oral misrepresentation made by the agent was of a fact that was contradicted by insurance policies themselves, the claims ripened at the time of the purchase and receipt of the policies. Id. at 151. Our supreme court reasoned:

“[T]he truth or falsity of [the agent’s] representation depends only on whether the policies themselves provide that they will be paid up by the plaintiffs’ payment of the premiums for 15 years. Because the policies do not so provide, the policies, immediately upon issuance, belied [the agent’s] representation. Like the plaintiffs in Boswell [v. Liberty National Life Insurance Co., 643 So.2d 580 (Ala.1994) ], and Donoghue [v. American National Insurance Co., 838 So.2d 1032 (Ala.2002) ], the plaintiffs in the present case ‘were persuaded, through the fraudulent acts of the defendants, to pay for something they did not receive,’ i.e., policies that will be paid up in 15 years. Boswell, 643 So.2d at 582. Thus, their claims were ripe as soon as they paid their first premiums. Id.”

Id.

In this case, the alleged misrepresentation made by Bass Comfort apparently conflicts with the terms of the Waterfur-nace written warranty. Therefore, the Sextons would have been made aware of the alleged misrepresentation at the time that they received the Waterfurnace written warranty. However, there is no evidence in the record showing when the Sextons received a copy of the Waterfur-nace written warranty. Because we cannot determine when the Sextons should have become aware that the alleged statement regarding the warranty made by Bass Comfort conflicted with the written warranty, we cannot determine when the Sextons’ claim ripened and, thus, when the statute of limitations began to ran. Accordingly, absent that evidence, the trial court could not have determined that the Sextons’ negligent and/or wanton misrepresentation claims were barred by the statute of limitations, and we must reverse the summary judgment insofar as it relates to those claims.

The trial court also entered a summary judgment in favor of Bass Comfort and Waterfurnace on the Sextons’ breach-of-contract, installation, and conspiracy claims. The Sextons have not presented any argument on appeal concerning those claims. “ ‘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.2003)). Therefore, the issue of the correctness of the trial court’s summary judgment as to those claims is not before us, and the summary judgment as to those claims is necessarily affirmed.

Bass Comfort also argues that the Sextons lacked standing to bring the instant case. Bass Comfort did not raise the issue of standing in its motion for a summary judgment; however, issues of standing cannot be waived and, therefore, may be raised at any time in a proceeding. See State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999).

Bass Comfort first argues that Frances does not have standing because any alleged misrepresentations were made only to Steve. The Sextons were married to each other at the time they purchased the HVAC units for what was then the marital home. Steve was acting on behalf of Frances when he was dealing with Bass Comfort. The Sextons decided to purchase the HVAC units based on the representations Bass Comfort made to Steve, and it is clear that Frances contributed money for the purchase of the HVAC units. Because Frances paid for the HVAC units, she can show that she suffered a direct injury; therefore, she had standing to bring the instant case. See Doss v. Serra Chevrolet, 781 So.2d 973, 977 (Ala.Civ.App.2000) (holding that a mother who contributed money for the down payment on the purchase of her adult daughter’s automobile had been injured by the defendant’s alleged misrepresentation to the daughter and, thus, had standing to bring a fraudulent-misrepresentation claim).

Bass Comfort also argues that Steve did not have standing because, Bass Comfort argues, Steve did not contribute any money for the purchase of the HVAC units. Therefore, Bass Comfort argues, Steve did not suffer any legal injury. Although the evidence in the record does support Bass Comfort’s contention that Steve did not directly pay for the HVAC units, we cannot say, from the evidence in the record, that Steve did not suffer any legal injury as a result of the purchase of the HVAC units for the marital home and the resulting issues with the operation of those units. Thus, we hold that Steve also had standing to bring the instant action.

Conclusion

For the aforementioned reasons, we affirm the summary judgment as to the Sextons’ breach-of-contract, installation, and conspiracy claims, and we reverse the summary judgment as to the Sextons’ fraudulent-misrepresentation, fraudulent-suppression, and negligent and/or wanton misrepresentation claims. The cause is remanded to the trial court for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

      . It is unclear from the trial court’s judgment whether it excluded the Sextons' response to the motions for a summary judgment. In its judgment, the trial court stated that it considered “the submissions of the parties”; however, it also stated that the Sextons had "failed to file a response to the Defendants’ Motions for Summary Judgment in accordance with Rule 56(c).”

      . Section 8-9-2, Ala.Code 1975, provides, in pertinent part:
      “In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
      “(1) Every agreement which, by its terms, is not to be performed within one year from the making thereof.”

      . The record on appeal does not contain a copy of the Waterfurnace written warranty. However, all parties state that the written warranty does not contain the word replacement.

      . We note that the receipt of the written warranty would start the running of the statute of limitations on the Sextons' fraudulent-misrepresentation and fraudulent-suppression claims as well. See Alfa Life Ins. Corp., 906 So.2d at 151.


author: THOMPSON, Presiding Judge.

text:
    THOMAS & ASSOCIATES v. John A. YASKO III.
    2090664.
    Court of Civil Appeals of Alabama.
    Nov. 19, 2010.

      Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant.
    Charles C. Tatum, Jr., Jasper, for appel-lee.
   THOMPSON, Presiding Judge.

The present appeal marks the second time this case has been before this court. The issue the parties address in this appeal is whether the trial court erred when it determined that Thomas & Associates (“Thomas”) must pay certain disputed postjudgment interest on a judgment entered in favor of John A. Yasko III, the plaintiff. For the reasons set forth herein, we do not reach the merits of that issue because we conclude that the trial court was without jurisdiction to enter the judgment from which Thomas appeals.

On January 11, 2008, the Walker Circuit Court entered a judgment finding Yasko totally and permanently disabled as a result of an injury arising out of his employment with Thomas and awarding him benefits pursuant to the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. Thomas appealed to this court. On October 14, 2008, while the appeal was pending, Yasko died, a fact that was not made known to this court. On February 20, 2009, this court affirmed the trial court’s judgment without an opinion. Thomas & Assocs. v. Yasko (No. 2070439), 46 So.3d 20 (Ala.Civ.App.2009) (table). Thomas filed a petition for a writ of cer-tiorari, which the supreme court denied on August 14, 2009. Ex parte Thomas & Assocs. (No. 1080659), 65 So.3d 495 (Ala.2009) (table). That same day, this court issued a certificate of judgment.

On August 17, 2009, counsel for Thomas sent a letter to counsel for Yasko by facsimile transmission in which he indicated that he had calculated the amount due under the trial court’s judgment for temporary-total-disability benefits and post-judgment interest thereon, the attorney’s fee and postjudgment interest thereon, and accrued permanent-total-disability benefits and postjudgment interest thereon. He indicated that the total amount due under the judgment was $149,645.61. Thomas’s counsel asked Yasko’s counsel to review the figures included in the letter and to let him know if he had any questions about, or was in disagreement with, any of the figures. He stated that if Yas-ko’s counsel was in agreement with the figures, he would proceed with obtaining a check from Thomas to satisfy the judgment.

Apparently counsel for the parties discussed the matter shortly after the August 17, 2009, letter was sent, because, on August 20, 2009, Thomas’s counsel sent a second letter to Yasko’s counsel in which he included “the revised numbers as we discussed.” In that letter, counsel for Thomas also asked that counsel for Yasko provide his tax-identification number and a Form W-9. Thomas’s counsel also asked how Yasko’s counsel “would like the checks made out.”

On August 25, 2009, Thomas’s counsel sent a third letter to Yasko’s counsel in which he provided new figures on the basis that Yasko had died, thus lowering the amount of accrued permanent-total-disability benefits due. Thomas’s counsel again requested that Yasko’s counsel provide his tax-identification number and to let him know how he “would like the checks made out.”

Discussions between counsel for the parties continued, and, for reasons not pertinent to our disposition of this appeal, a dispute arose between them as to whether Thomas was responsible for the payment of postjudgment interest accruing after August 28, 2009. On October 2, 2009, Thomas filed a motion with the trial court in which it requested that the trial court enter an order allowing Thomas to pay the judgment amount and interest into court. It argued that Yasko’s counsel’s actions had prevented it from satisfying the judgment. It asked that the trial court enter an order providing that postjudgment interest had stopped accruing as of August 28, 2009, and it argued that Yasko was estopped by his counsel’s actions from obtaining any postjudgment interest after that date.

On December 2, 2009, Yasko’s counsel, purportedly on behalf of Yasko, filed a response to Thomas’s motion in which he argued that Thomas had never made an actual, unconditional tender of the amount of the judgment and that, as a result, postjudgment interest continued to accrue.

On December 14, 2009, after a hearing on Thomas’s motion, the trial court entered an order allowing Thomas to pay the judgment amount, along with the undisputed amount of postjudgment interest, into court. The trial court’s order indicated that the trial court would rule at a later date on Thomas’s motion with regard to the proper calculation of postjudgment interest.

On March 19, 2010, the trial court entered a judgment in which it concluded that Thomas was required to pay post-judgment interest until December 14, 2009, the date that it paid the amount of the judgment into court. The trial court found that Thomas had failed to tender payment of the judgment to either Yasko’s counsel or to the circuit clerk at any time before December 14, 2009, and that, as a result, postjudgment interest had continued to accrue until that date. The trial court awarded accrued postjudgment interest for the period of August 28, 2009, to December 14, 2009, of $4,069.44 to Yasko. Thomas appeals.

On appeal, Thomas contends that the trial court erred when it ordered it to pay postjudgment interest for the period of August 28, 2009, to December 14, 2009, because Yasko’s counsel had thwarted its ability to tender payment of the judgment during that time. We do not reach that issue because we conclude that the trial court was without jurisdiction to enter the judgment from which Thomas appeals.

As previously noted, Yasko died on October 14, 2008. Rule 25, Ala. R. Civ. P., provides that when a party dies and the claim is not extinguished by the party’s death, a proper party may be substituted for the dead party. However, it is undisputed that no one was substituted for Yas-ko in the trial court, and, as a result, Thomas was the only proper party before the trial court at the time the trial court entered its March 19, 2010, judgment regarding postjudgment interest.

In Wells v. Wells, 376 So.2d 750 (Ala.Civ.App.1979), a husband had filed a motion to amend a judgment of divorce pursuant to Rule 60, Ala. R. Civ. P. During the pendency of that motion, the wife died. The husband filed a motion to substitute the personal representative of the wife’s estate for the wife. The trial court denied the husband’s Rule 60 motion and stated that it would not rule on the husband’s motion to substitute. The husband appealed.

On appeal, although neither party had raised the issue, this court determined that, because the representative of the wife’s estate had not been substituted for the wife, there had been no defendant before the trial court at the time it entered its judgment. Wells, 376 So.2d at 751. Therefore, this court concluded, the trial court had been without jurisdiction to enter the judgment from which the husband had appealed, and this court reversed that judgment. Id. See also Estate of Bell v. Bell, 598 So.2d 917, 918 (Ala.Civ.App.1991) (dismissing appeal because postjudgment motion was filed two days after death of purported movant and no substitution of parties had been made).

In the present case, when the trial court entered the March 19, 2010, judgment, Thomas was the only party properly before it. Because no individuals had been substituted for Yasko, the trial court lacked jurisdiction to proceed in the action and to enter its judgment. The trial court’s judgment was therefore void, and it will not support the present appeal. As a result, we dismiss the appeal, and we instruct the trial court to vacate its judgment regarding postjudgment interest.

The motion to substitute the appel-lee is denied.

APPEAL DISMISSED WITH INSTRUCTIONS.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . During the pendency of this appeal, this court ordered the parties to substitute a proper party for Yasko. The court should not have done so because Rule 43, Ala. R.App. P., which permits the substitution of parties on appeal, “applies to substitution when death of a party occurs in an appeal then pending.” Killough v. Killough, 373 So.2d 336, 338 (Ala.Civ.App.1979). Yasko's death occurred before this appeal was filed.
      In compliance with this court's order, Yas-ko’s counsel filed a motion to substitute Yas-ko’s estate for Yasko. That motion is due to be denied because such a substitution is not appropriate under Rule 43.


author: PER CURIAM. THOMAS, Judge, PITTMAN, Judge,

text:
    Rebecca R. GRELIER v. Maximilian J. GRELIER III.
    2090642.
    Court of Civil Appeals of Alabama.
    Nov. 19, 2010.

      Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellant.
    Dinah P. Rhodes of Rhodes & Creech, Huntsville, for appellee.
   PER CURIAM.

This is the second time these parties, Rebecca R. Grelier (“the wife”) and Maximilian J. Grelier III (“the husband”), have been before this court. In Grelier v. Gre tier, 44 So.3d 1092 (Ala.Civ.App.2009) (“Grelier ”), the wife appealed from the trial court’s January 8, 2007, judgment of divorce. In that judgment, the trial court applied a 40% minority/marketability discount to the husband’s business interests in multiple closely held business entities to reduce the value of those business interests from $1,008,514 to $602,108.40. The trial court also awarded the wife rehabilitative alimony for 36 months, but it failed to reserve the right to award the wife periodic alimony in the future.

Analogizing the situation to that of a dissenting shareholder who was not a willing seller, see Ex parte Baron Servs., Inc., 874 So.2d 545 (Ala.2003), this court concluded that the trial court should have determined the value of the husband’s multiple interests in the closely held business entities as “a going concern without applying any discounts.” Grelier, 44 So.3d at 1098. As a result, we reversed the trial court’s judgment and remanded the cause for the trial court “to reconsider its property division and its award of alimony in light of the proper valuation of the husband’s business interests.” 44 So.3d at 1099.

On remand, the trial court divided the marital property as it had before. In its February 24, 2010, judgment on remand, the trial court stated:

“1. ... Except for an equitable division of the household goods, furniture, and furnishings accumulated by the parties during the marriage; an honorary membership in ‘The Ledges,’ a local country club; and one-half (½) of the net proceeds from the sale of the parties’ marital residence, after payment to the Wife of the sum of $200,000, as additional property settlement, the only remaining marital assets awarded to the Husband consisted of the ownership interests in various business entities in which the Husband is a minority stockholder in closely-held businesses, in which he participates with his father, his brother, and a friend. This court does not find that it would be fair or equitable to award the Wife any of those business interests. A review of the evidence presented to this court at final hearing does not indicate any other financial resources from which this court could provide any further property award to the Wife, nor does this Court find from the evidence that the Husband possesses sufficient income to pay any additional alimony or additional property award to the Wife, after payment of the child support, periodic alimony, additional periodic alimony for Wife’s education, attorney’s fees for the Wife, 76% of the fees for the Special Master, the monthly payments on the Wife’s automobile, and the other marital and business debts, ordered by this court to be paid by him. Any further award made to the Wife by this court on remand, either as a property award or as additional periodic alimony, would therefore require the Husband to either borrow money and go deeper in debt, or sell some or all of the business interests awarded to him in said Final Decree, which would necessarily involve the sale of a minority interest in closely-held corporations.
“2. This court finds that the property division and the award of alimony previously made by this court ... are fair and equitable, even considering the proper valuation of the Husband’s business interests, as ordered by the Alabama Court of Civil Appeals.
“3. The following provisión is added to Paragraph 12(A) of the Final Decree of Divorce ...:
“ ‘This court reserves the right to modify the periodic alimony herein awarded to the Wife, on petition filed by the Wife prior to the expiration of the periodic alimony award herein made to the Wife.’
“4. Except as herein modified, the terms and provisions of the Final Decree of Divorce ... entered by this court on January 8, 2007, as amended by the Order on Pending Motions entered by this court on February 27, 2007, shall remain in full force and effect, on remand to this court by the Alabama Court of Civil Appeals.”

The wife again timely appealed, asserting that, on remand, the trial court ignored this court’s mandate by dividing the parties’ marital property exactly as it had previously; she also asserts that the trial court erred in not reserving the issue of alimony after the expiration of the initial 36-month period relating to rehabilitative alimony. We affirm in part and reverse in part.

Analysis

This court must consider the issues of property division and alimony together when reviewing the decision of the trial court. Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1995). “[T]here is no rigid standard or mathematical formula on which a trial court must base its determination of alimony and the division of marital assets.” Yohey v. Yohey, 890 So.2d 160, 164 (Ala.Civ.App.2004). In Lackey v. Lackey, 18 So.3d 393 (Ala.Civ.App.2009), this court stated:

“ “When dividing marital property and determining a party’s need for alimony, a trial court should consider several factors, including “ ‘the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source; value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage.’ ” Ex parte Elliott, 782 So.2d 308 (Ala.2000) (quoting Nowell v. Nowell, 474 So.2d 1128, 1129 (Ala.Civ.App.1985)) (footnote omitted). In addition, the trial court may also consider the conduct of the parties with regard to the breakdown of the marriage.’ ”

18 So.3d at 401 (quoting Baggett v. Baggett, 855 So.2d 556, 559 (Ala.Civ.App.2003)).

In Roberts v. Roberts, 802 So.2d 230, 235 (Ala.Civ.App.2001), this court set forth the standard of review applicable to a trial court’s division of property in a divorce action:

“A trial court’s division of property following an ore tenus presentation of evidence is presumed correct on appeal and will not be reversed absent a plain and palpable abuse of discretion. A property division is required to be equitable, not equal. In fashioning a property division, the trial court considers the parties’ earning abilities; their probable future prospects; their ages, health, and station in life; the duration of the marriage, and the conduct of the parties with regard to the breakdown of the marriage.”

(Citations omitted.)

We first address the wife’s challenge to the trial court’s acceptance of the special master’s valuation of the husband’s business interests. After nearly two years and several amendments to the valuation, the special master concluded that the husband’s business interests were valued at $1,003,514. The wife presented her own expert who testified that the information relied upon by the special master was either outdated or incomplete and, therefore, that the special master’s valuation of the husband’s business interests was incorrect. The wife’s expert, however, offered no opinion as to the value of the husband’s business interests, and the wife did not present appraisals of the business entities to assist the trial court in valuing the husband’s business interests. The trial court accepted the special master’s valuation.

We conclude that no error is presented. The trier of fact is authorized to resolve conflicting expert testimony. See, e.g., Taylor v. Goodyear Tire & Rubber Co., 37 So.3d 813, 822 (Ala.Civ.App.2009) (recognizing trial court’s discretion in a bench trial to resolve conflicts among expert testimony). Further, the wife presented no alternative valuation for the trial court’s consideration. Thus, we find no reversible error as to the trial court’s valuation of the husband’s business interests.

The wife next asserts that the trial court ignored this court’s mandate on remand by not altering its division of the marital property. In Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983), the supreme court, quoting 5 Am.Jur.2d Appeal and Error § 991 (1962), stated:

“ ‘It is the duty of the trial court, on remand,.to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered .... The appellate court’s decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence....’”

In Grelier, supra, we instructed the trial court to reconsider its division of the marital property and its award of alimony in light of the proper valuation of the husband’s business interests. In its February 24, 2010, judgment, the trial court expressly stated that it had considered the value of the husband’s business interests without applying any marketability or minority discounts to that value and had found it equitable to divide the marital property as it had before. In light of that language, we must conclude that, on remand, the trial court complied with this court’s mandate in Grelier, supra.

We next address the wife’s argument that the trial court’s property division was inequitable. She argues that the trial court erred in concluding that any additional property award to her beyond that already awarded to her would

“require the Husband to either borrow money and go deeper in debt, or sell some or all of the business interests awarded to him ... which would necessarily involve the sale of a minority interest in closely-held corporations.”

She asserts that the trial court could have made a more equitable property division by awarding her a portion of the husband’s business interests, i.e., by making an “in-kind” award of those interests. She also asserts that the trial court could have ordered a sale of the husband’s business assets and then divided the net proceeds between the parties or could have awarded her alimony in gross. We review the trial court’s division of the marital estate to determine if it was, in fact, inequitable. If so, we then consider the wife’s suggested means of awarding her additional property-

Based upon our reading of the trial court’s judgment, the wife received marital property valued at $212,000 (proceeds from the sale of the marital residence in the amount of $200,000, at a minimum, and her vehicle, valued at $12,000). The trial court ordered the wife to pay marital debts totaling $169,682 ($59,417 to her mother and stepfather; $68,930 to her mother; $8,800 to her mother; $20,000 to her father; $1,109 to Parisians department store; $137 to American Express credit card; and $11,289 to the special master). Subtracting the debts the trial court ordered the wife to pay from the value of the marital assets the trial court awarded to the wife, we determine that the wife’s net property award from the marital estate totaled $42,318.

We conclude that the trial court awarded the husband marital assets totaling $1,003,514 (the value placed on his business interests) and ordered the husband to pay marital debts totaling $207,476 ($18,789 for the wife’s vehicle; $4,944 for his credit-card debt; $59,417, representing one-half of the joint debt owed to Dianna and Jack Norman; $40,000 to Betty La-das; $30,000 to Remy Gross; $18,575 to the wife’s attorney; and $35,751 to the special master). Thus, the husband’s net property award of a sum certain totaled $796,038.

The husband, however, was also ordered to pay certain contingent debts and liabilities, which the trial court clearly factored into its division of the parties’ marital property. The trial court ordered the husband to pay “all debts owed by him personally from any business entity herein awarded to him, including the $975,000 debt owed to Bodega Bay and the $84,000 owing to Wachovia Bank as a result of the home buy-back at The Ledges.” Thus, the trial court ordered the husband to pay contingent debts totaling $1,059,000.

In Mosley v. Mosley, 747 So.2d 894 (Ala.Civ.App.1999), we concluded that contingent assets and contingent liabilities were not to be included in the computation of the parties’ net worth but should be calculated separately and awarded separately. See 747 So.2d at 901 (discussing with approval the method used in Florida courts to compute parties’ net worth, by which the court calculated and awarded contingent assets and liabilities separately). Thus, the trial court should have determined the value of the parties’ marital estate without reference to their contingent assets and liabilities; after determining the net worth of the parties in that fashion, the trial court then should have considered their contingent assets and liabilities separately.

On appeal, the wife argues that the trial court exceeded its discretion in “us[ing] this contingent debt to deny the [w]ife a fair and just property division.” The wife, however, did not specifically argue to the trial court that the valuation of the marital estate was flawed under governing caselaw, and she has failed to provide this court with citations to authorities regarding the proper method to be applied by a trial court in valuing a marital estate. We, therefore, deem the wife’s challenge to the valuation of the marital estate based on the contingent debt to be waived on appeal. See Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003) (“ ‘[I]t is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undeli-neated general propositions not supported by sufficient authority or argument.’ ” (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994), citing in turn Spradlin v. Spradlin, 601 So.2d 76 (Ala.1992))). As a result, we accept the trial court’s valuation of the parties’ marital estate.

When the trial court’s award to the husband of marital assets is measured against the liabilities the trial court ordered the husband to pay, we conclude that the husband’s net property award totaled -$262,962 ($1,003,514 less liabilities of $1,266,476). Considering the facts of this case as presented on appeal and the presumption of correctness that attaches to a trial court’s property division following an ore tenus presentation of the evidence, we conclude that the property division does not rise to the level of a plain and palpable abuse of the trial court’s discretion. See Roberts, supra. Accordingly, we preter-mit consideration of the wife’s arguments that the trial court should have considered alternative ways of increasing her property award.

The wife next asserts that the trial court erred in failing to reserve the right to award her periodic alimony in the future. The trial court addressed this issue in its February 24, 2010, judgment on remand by stating:

“3. The following provision is added to Paragraph 12(A) of the Final Decree of Divorce ...:
“ ‘This court reserves the right to modify the periodic alimony herein awarded to the Wife, on petition filed by the Wife prior to the expiration of the periodic alimony award herein made to the Wife.’ ”

The wife asserts that the trial court committed reversible error by not reserving the right to award her periodic alimony in the future. We agree.

In Giardina v. Giardina, 987 So.2d 606 (Ala.Civ.App.2008), this court concluded that the trial court in that case had erred by failing to reserve the issue of permanent periodic alimony after awarding the wife rehabilitative alimony. This court stated:

“We acknowledge that some of our prior decisions have implicitly rejected the idea that a spouse who has been awarded rehabilitative alimony must seek a modification of the award before the expiration date of the rehabilitative-alimony period or be forever barred from receiving periodic alimony. In Fowler v. Fowler, 773 So.2d 491, 495 (Ala.Civ.App.2000), overruled on other grounds by J.L. v. A.Y., 844 So.2d 1221, 1225 (Ala.Civ.App.2002), this court stated:
“ “We have previously held that when the court awards rehabilitative alimony based on the earning ability of the parties, their probable future prospects, and the length of the marriage, it is reversible error for the court not to reserve the right to award periodic alimony in the future. See Robinson v. Robinson, 628 So.2d 300 (Ala.Civ.App.1993); Sammons v. Sammons, 598 So.2d 941 (Ala.Civ.App.1992).’ ”

Giardina, 987 So.2d at 620.

In this case, although the trial court awarded the wife rehabilitative alimony for a period of 36 months to allow her time to update her professional license and skills and to obtain employment, the evidence established that the wife had not worked in the field of accounting since giving birth to the parties’ children and that her license as a certified public accountant (“CPA”) had expired. She testified that regaining her CPA license would require many hours of continuing-education credits and that she was unsure whether she could maintain employment in that professional field while raising two children. The only other employment the wife held during the parties’ marriage was operating various home-based businesses from which she earned a small profit. Thus, it was unknown whether the wife would be able to obtain employment sufficient to allow her to support herself without the husband’s assistance and to maintain a lifestyle similar to the one she had enjoyed during the parties’ marriage. See, e.g., Yohey v. Yohey, 890 So.2d at 160 (discussing the purpose of periodic alimony); and Dees v. Dees, 390 So.2d 1060, 1064 (Ala.Civ.App.1980) (accord).

Under those circumstances, it was error for the trial court not to reserve the right to award the wife permanent periodic alimony in the future. Giardina, supra; and Fowler, supra. We, therefore, reverse the trial court’s judgment on the issue of periodic alimony and remand the cause for the trial court to enter a judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and MOORE, J., concur.

THOMAS, J., concurs in part and concurs in the result, with writing.

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

PITTMAN, J., concurs in the result only, with writing.

THOMAS, Judge,

concurring in part and concurring in the result.

Although I agree with all other aspects of the main opinion, I must only concur in the result insofar as the opinion reverses the trial court’s judgment because it failed to reserve the issue of permanent periodic alimony. As I explained in my opinion concurring in part and concurring in the result in part in Edwards v. Edwards, 26 So.3d 1254, 1262-63 (Ala.Civ.App.2009), I see no reason for this court to continue to require a trial court to reserve jurisdiction to award something that it has already awarded. A party receiving rehabilitative alimony may petition for a modification of that award, and thus an extension of the award, at any time before its expiration. See Beckwith v. Beckwith, 475 So.2d 575, 576-77 (Ala.Civ.App.1985).

The trial court awarded the wife rehabilitative alimony for 36 months to commence the first day of the month following the closing of the sale of the former marital residence. Because of the time that transpired between the original appeal and this appeal after remand and the lack of evidence concerning when the marital residence was actually sold, I cannot determine whether the wife could file a timely petition seeking modification of the rehabilitative-alimony award after the conclusion of this appeal. Thus, in all fairness and because of the wife’s reliance on the longstanding legal principle that a failure to reserve the right to award permanent periodic alimony is reversible error, I cannot dissent from the main opinion’s reversal. I therefore concur in the result insofar as the main opinion reverses the trial court’s judgment on this point.

PITTMAN, Judge,

concurring in the result only.

Although I disagreed with the majority opinion in Grelier v. Grelier, 44 So.3d at 1099 (Pittman, J., concurring in part and dissenting in part), as to the present appeal, I concur in the result only based, in part, upon the rationale expressed by Judge Thomas in her special writing. See also Edwards v. Edwards, 26 So.3d 1254, 1262-63 (Ala.Civ.App.2009) (Thomas, J., concurring in part and concurring in the result in part, joined by Pittman, J.).

      . The factual background of this case is set forth in Grelier v. Grelier, 44 So.3d 1092 (Ala.Civ.App.2009).

      . The wife also was awarded rehabilitative alimony in the amount of $1,500 for 36 months to begin the month after the marital residence was sold. She also was awarded additional rehabilitative alimony to cover educational expenses necessarily incurred by her to renew her license as a certified public accountant, not to exceed the sum of $10,000; the husband's obligation for this additional rehabilitative alimony terminated 36 months after the entry of the original divorce judgment. Those awards of support are not considered in our calculation of the wife’s property award.

      . Because the amount of the proceeds, if any, to be awarded to the husband from the sale of the marital residence cannot be determined from the record and was contingent upon the sales price of the residence less associated repair costs and other expenses, we have not credited the husband with an award for that asset.

      .It was undisputed at the trial that the husband was jointly and severally liable for the $975,000 and the $84,000 debts but that, at the time of the trial, he was not servicing those debts. Although it had no legal obligation to do so, CG Partners, one of the businesses in which the husband held a significant interest and his most valuable business interest, was making the payments on those notes as they came due. The husband testified that, if CG Partners was unable to make those payments, he and his father would be called upon to do so. Thus, the contingent nature of those debts was undisputed. The special master, however, testified that it was inappropriate to include those debts in the valuation of CG Partners and that such liabilities were chargeable against the husband personally.

      . Additionally, the wife’s arguments to the trial court on this issue raised accounting issues, which, although perhaps valid under general accounting principles, do not defeat the trial court’s discretion in effectuating an equitable property division. Roberts, 802 So.2d at 235 (discussing the trial court’s broad discretion in dividing marital property).