author: BOLIN, Justice.

text:
    Timothy C. ALLSOPP v. James A. BOLDING and Kisha Bolding.
    1100482.
    Supreme Court of Alabama.
    Sept. 30, 2011.
    Rehearing Denied Dec. 16, 2011.

      C. Wayne Morris, Huntsville, for appellant.
    Gary V. Conchin and Joseph D. Aiello of Morris, Conchin, King & Hodge, Huntsville, for appellees.
   BOLIN, Justice.

Timothy C. Allsopp appeals from the trial court’s denial of his Rule 60(b)(4), Ala. R. Civ. P., motion for relief from a judgment entered in favor of James A. Bolding and Kisha Bolding.

Specifically, Allsopp contends that the judgment is void because⅛ he argues, he was not properly served with notice.

Facts and Procedural History

On January 31, 2008, the Boldings sued Naysa Realty and Investments, LLC, De-leana Davis, Keller-Williams Realty Co., and Allsopp. The Boldings alleged breach of fiduciary duty, and three counts of fraud, arising out of real-estate transactions in Madison County. Davis is a principal in Naysa Realty and is employed by Keller-Williams as a real-estate agent. Davis advised the Boldings, who were purchasing property, to give Allsopp power of attorney to sign certain closing documents on their behalf.

The Boldings amended their complaint to add claims of negligence and negligent hiring, training, and supervision against Keller-Williams. They also “properly designated” Keller-Williams as Classic Madison, LLC, d/b/a Keller-Williams Realty. Davis and Naysa Realty moved to compel arbitration of the claims against them based on the Boldings’ real-estate sales contracts, which the trial court granted. A default judgment was entered against Allsopp, with leave for the Boldings to prove damages against him later. The Boldings entered into a settlement agreement with Classic Madison, and it was subsequently dismissed as a party.

On October 27, 2010, Allsopp filed his Rule 60(b), Ala. R. Civ. P., motion for relief from the default judgment, alleging that he had not been properly served. On December 3, 2010, the trial court held a hearing on the motion. At the hearing, Allsopp testified that he was residing in Georgia with his parents on April 30, 2008, the day the summons and complaint were hand-delivered to Davis at her residence on Stage Coach Drive in Madison. He stated that he had been dating Davis since 2004 and that he spent “a fair amount” of time with her, but he denied residing with her in that house. Allsopp testified that he had a valid Georgia driver’s license. He stated that he and Davis “broke up” in December 2007 and reconciled October 2008. Allsopp testified:

“Q. [Allsopp’s attorney:] And in 2008 were you in and out of Alabama at all up until the time they say you were served?
“A. No, not up until the time they say that I was served. I was not.”

A credit-card receipt reflected that Allsopp made a charge in Huntsville on May 1, 2008. Allsopp testified that he and Davis married on March 21, 2009, and that they now reside on Jordan Lane in Huntsville. Allsopp testified that he did not have a job in 2008.

Allsopp testified regarding his involvement with the Boldings:

“Q. [The Boldings’ attorney:] Yeah. Well, [Davis] got you to — she got my clients, the Boldings, I’m assuming with your knowledge, to sign a power of attorney for three separate real estate closings naming you as power of attorney. Your girlfriend did that. That’s how you got involved in this in the first place, correct?
“A. With their permission, that’s correct.
“Q. Okay. And so they go to three real estate closings, never — they’ve never been to a real estate closing. But you go, allegedly on their behalf, and sign some documents on their behalf with them never being there. That’s how you got involved in this, correct? Because you were designated by your girlfriend, Ms. Davis, who is a defendant, as power of attorney to sign the name for the Boldings, the plaintiffs?
“A. Actually I was designated by a notary which was related to the Bold-ings who authorized the power of attorney which was prepared by the closing attorney. Ms. Davis did not authorize it. They authorized it, which was notarized by his sister-in-law. And so his sister-in-law notarized the document that he authorized providing me permission to do power of attorney on their transactions they consented to. That’s what happened.
“Q. Mr. Allsopp, the Boldings didn’t know you from Adam’s house cat before they signed a real estate transaction with your girlfriend, now your wife, miss whatever her name is at the time. They didn’t know you. You never met them. You didn’t have a clue who they were. Isn’t that correct?
“A. That’s correct.”

Allsopp’s father testified that Allsopp lived at his house in Atlanta from December 2007 to the late summer of 2008. He testified that he did not know if Allsopp was in Atlanta on April 30, 2008.

Davis testified that she and Allsopp had been dating since 2004 but that she and Allsopp were not dating on April 30, 2008. She stated that she was involved with another man at the time service of process was made in this case. Davis testified that the man she was involved with was at her house on Stage Coach Drive on April 30, 2008, between 10:00 p.m. and 12:00 a.m., when the process server arrived. Davis testified that the next day she reported the “service” to the Madison County Sheriff. Davis stated that Allsopp never spent the night at her house before their marriage because she had a minor child from a previous marriage living with her. She stated that before April 30, 2008, Allsopp had been to her house approximately 25 times. At an earlier deposition, Davis stated that she and Allsopp had reconciled and that they were engaged.

The process server testified that he tried to serve Allsopp twice at a residence on Jordan Lane. He testified that on April 30, 2008, he delivered a copy of the summons and complaint to an address on Stage Coach Drive, in Madison. Davis resided at that address. Davis answered the door when the process server knocked, and he could see a man standing inside the house. The process server had discovered that Davis was Allsopp’s girlfriend and that Allsopp did real-estate work with her. The process server asked if Allsopp resided at the address and Davis responded that he did. The process server testified as follows:

“A. All right. I did make several attempts to catch them there. When I did finally — when , I did finally catch them — someone at home, I went to the front door and rang the doorbell. And Ms. Davis — I saw her out in the hallway, answered the door. And Mr. Allsopp was in another room but it was in eye— eyesight, excuse me, of the front door. I could see him there. And I asked if he resided there. She said, Yes.’ And, T have these papers to serve.’ And I, at that point, handed them to Ms. Davis.
“Q. [The Boldings’ attorney:] All right. Now, you see this guy right here?
“A. Yes.
“Q. Is that the guy you saw through the door at that residence that night?
“A. Yes.
“Q. All right. Now, let’s do you know anything about a Dewayne (sic) Johnson or somebody else that you served papers on that night or anything of that nature?
“A. No.
“Q. All right. And you handed the papers to her?
“A. Yes. With him there, yes.
“Q. All right. And what, if anything, did you say and then what did she say?
“A. Well, I just said, more or less ‘These papers are service papers for Timothy Allsopp and just see that he gets them.’
“Q. Okay. And where was this room that you saw Mr. Allsopp in?
“A. At the end of that foyer, hallway, whichever you describe the room or would call that.
“Q. Okay. How far away was he from you?
“A. Maybe as far as from here to that second railing back there.
“Q. Would that be about 35, 40 feet?
“A. I would imagine. I’m not good judge of distances like that. But that looks like maybe about that.
“Q. Why did you not step inside and hand him the papers?
“A. It’s not my place to enter someone’s home, especially in that situation, if I’m not invited.
“Q. Well, if she said. ‘He’s here,’ and you were there to serve papers why didn’t you say. ‘Well, I need to hand these to him’?
“A. The — I guess the attempts that I had made and hearing that it may be trouble to, you know, to get this serve done. When I asked—
“Q. Well, you indicated that when she opened the door you asked something about was he there and she said, ‘He lives here’?
“A. Uh-huh. (Affirmative.)
“Q. Was there any indication [of] anybody refusing access to hand him the papers if he’s right there in front of you?
“A. I did not ask to go in. It’s my job to get the papers served to the person or to an adult living in the same premises — or address, excuse me.
“Q. Well, what do you do when you walk up to somebody to serve papers and they don’t take the papers? What do you normally do?
“A. 'Lay them at their feet and say, ‘You’ve been served.’
“Q. Okay. Did you do that?
“A. My recollection I handed them to Ms. Davis.
“Q. Okay. Well, if you saw Mr. All-sopp there why didn’t you say ‘I served Mr. Allsopp’ in your return and lay them in the front door? Because you saw him right there, from your testimony.
“A. Could you repeat that, please?
“Q. Your testimony was that when you walked to the screen door, front door, you opened the door and you saw him from here to about that chair right there?
“A. From here?
“Q. Yes, sir. And supposedly what your testimony was he was identified to you as Mr. Allsopp. And yet your return says you served Ms. Davis, not Mr. Allsopp. Is that correct?
“A. Yes, I served Ms. Davis. She was the person at the door.
“Q. Why didn’t you on the return say T served Mr. Allsopp because I left them there in his front where he could see him’ and he was straight in front of you. What’s the difference?
“A. What is the difference in — I don’t follow you.
“Q. Well, if your practice was if somebody doesn’t take the papers you put them at their feet and say you’ve been served.
“A. Correct.
“Q. Why didn’t you say to Mr. All-sopp, You’ve been served,’ or lay them there in front of him and exit the property?
“A. Because I was not speaking directly to Mr. Allsopp. He’s not the one that answered the front door.
“Q. But you saw him there' in front of you and he was the one there you were to serve; is that correct?
“A. Correct—
“Q. And you served somebody else with the papers?
“A. Correct.”

According to the process server, Davis cursed at the process server and threatened to contact the police and charge the process server with trespass. The process server then handed the summons and complaint to Davis. After he was out of “harm’s way,” the process server stated that he completed the return-of-service notice, marking the notice as delivered to “Deleana Davis, live-in partner” of Allsopp. The process server identified Allsopp as the man who was standing inside Davis’s house when he served notice of the action.

On December 9, 2010, the trial court denied Allsopp’s motion. On January 14, 2011, Allsopp appealed.

Standard of Review

Rule 60(b)(4), Ala. R. Civ. P., provides for relief from a judgment when that judgment is void. Generally, this Court reviews a trial court’s ruling on a Rule 60(b) motion to determine whether the trial court exceeded its discretion. However, with regard to Rule 60(b)(4), this Court has stated:

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

Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991). In other words, if the underlying judgment is void because the trial court lacked subject-matter or personal jurisdiction or because the entry of the judgment violated the defendant’s due-process rights, then the trial court has no discretion and must grant relief under Rule 60(b)(4). This Court reviews de novo the trial court’s decision on a Rule 60(b)(4) motion to set aside a judgment as void, because the question of the validity of a judgment is a question of law. Orix Fin. Servs., Inc. v. Murphy, 9 So.3d 1241, 1248 (Ala.2008)(Murdock, J., concurring specially). Notwithstanding our de novo review, in his special writing in Orix, Justice Mur-dock recognized that when a trial court, in ruling on a Rule 60(b)(4) motion, makes factual findings implicating the ore tenus rule, the trial court’s factual findings are entitled to some deference by this Court. In Ethridge v. Wright, 688 So.2d 818 (Ala. Civ.App.1996), the Court of Civil Appeals applied the ore tenus rule to oral testimony heard by the trial court regarding service of process challenged pursuant to Rule 60(b)(4).

The ore tenus rule affords a presumption of correctness to a trial court’s findings of fact based on ore tenus evidence, and the judgment based on those findings will not be disturbed unless those findings are clearly erroneous and against the great weight of the evidence. Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000). It is grounded upon the principle that when a trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of the witnesses. Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). The ore tenus rule does not cloak a trial court’s conclusions of law or the application of the law to the facts with a presumption of correctness. Kennedy v. Boles Invs., Inc., 53 So.3d 60 (Ala.2010).

In the present case, the trial court heard oral testimony concerning the sufficiency of service of process on Allsopp. In accordance with our well settled standard regarding a Rule 60(b)(4) motion challenging a judgment as void, our de novo standard of review applies. However, because the trial court heard oral testimony regarding disputed facts involved in the service of process, the ore tenus rule applies to our review of its factual findings.

We note that several federal courts of appeal review a district court’s decision on a Rule 60(b)(4), Fed.R.Civ.P., motion de novo, but those courts review the factual findings underlying the decision for clear error. In Securities & Exchange Commission v. Internet Solutions for Business, Inc., 509 F.3d 1161 (9th Cir.2007), the defendant filed a Rule 60(b)(4), Fed. R.Civ.P., motion to set aside a default judgment entered against him on the ground that the Commission had failed to properly serve him. The trial court found that the defendant provided insufficient evidence to prove that he was not served. In reviewing the district court’s decision, the federal appeals court stated:

“We review de novo whether default judgment is void because of lack of personal jurisdiction due to insufficient service of process. Mason v. Genisco Tech. Corp., 960 F.2d 849, 851 (9th Cir.1992). However, the ‘district court’s factual findings regarding jurisdiction are reviewed for clear error.’ Panavision Int’l, LP v. Toeppen, 141 F.3d 1316 (9th Cir.1998).”

509 F.3d at 1165. See also Goetz v. Synthesys Techs., Inc., 415 F.3d 481, 483 (5th Cir.2005) (recognizing that clear error applies to factual findings related to Rule 60(b)(4) decisions); Kelly, Sutter, Mount & Kendrick, P.C. v. Alpert, 234 Fed Appx. 246 (5th Cir.2007) (not selected for publication in the Federal Reporter) (holding that a district court’s finding of fact, following an evidentiary hearing on a Rule 60(b)(4) motion, that the defendant’s housekeeper residing in the defendant’s house was “a person of suitable age and discretion,” satisfying the service-of-process requirements, was not clear error and, therefore, affirming the district court’s judgment denying the motion).

When a trial court ruling on a Rule 60(b)(4) motion has heard oral testimony regarding the facts, we will review the trial court’s factual findings pursuant to the ore tenus rule. We will review the trial court’s conclusions of law and its application of the law to the underlying facts de novo.

jDiscussion

The trial court heard oral testimony regarding service of process on Allsopp. “Under the ore terms standard of review, we must accept as true the facts found by the trial court if there is substantial evidence to support the trial court’s findings.” Beasley v. Mellon Fin. Servs. Corp., 569 So.2d 389, 393 (Ala.1990). The trial court did not make specific findings of facts in its order denying Allsopp’s Rule 60(b)(4) motion. It is well settled that when the record is silent as to the trial court’s findings of fact on a disputed issue, we will assume the trial court made those findings necessary to support the judgment. Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992).

Allsopp argues that the service of process was flawed because the process server’s return receipt indicates that the complaint was served not on him, but on Davis, his “live-in partner.” Next, Allsopp argues that Davis’s house was not his “dwelling house or usual place of abode” under Rule 4, Ala. R. Civ. P., and that the uncon-troverted evidence shows that he was residing in Georgia on April 30, 2008. All-sopp further argues that, without legal service, the trial court lacked jurisdiction to enter the default judgment against him.

Rule 4(c)(1) provides:

“Service of process except service by publication as provided in Rule 4.3 shall be made as follows:
“(1) Individual. Upon an individual, other than a minor or an incompetent person, by serving the individual or by leaving a copy of the summons and the complaint at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and the complaint to an agent authorized by appointment or by law to receive service of process.”

Pursuant to Rule 4(c), in order for Allsopp to have been properly served, the process server had to (1) serve him in person, (2) leave the process papers at his “dwelling house or usual place of abode with some person of suitable age or discretion” residing there with him, or (3) deliver the process papers to a person authorized by appointment or by law to receive service for him. In the present case, the process server testified that, when Davis opened the door, he asked if Allsopp resided there and Davis responded that Allsopp did. The process server stated that he could see a man he assumed was Allsopp standing inside the house, and he later identified Allsopp in court. The process server testified that he told Davis that he had papers to serve on Allsopp and that he then gave those papers to Davis. The process server did not attempt to hand the papers to Allsopp. We recognize that courts have upheld service when a defendant attempts to evade service, and, therefore, “in-hand” delivery is not required. See Travelers Cas. & Sur. Co. v. Brenneke, 551 F.3d 1132 (9th Cir.2009) (upholding service where process server testified that, after five attempts to serve defendant, papers were left on the front step after the defendant spoke to process server through an intercom system but refused to answer and unlock the door); Errion v. Connell, 236 F.2d 447, 457 (9th Cir.1956) (holding that service was sufficient where sheriff pitched papers through a hole in defendant’s screen door after she spoke with him and ducked behind a door to avoid service); and Slaieh v. Zeineh, 539 F.Supp.2d 864 (S.D.Miss.2008) (holding that service was sufficient where process server dropped papers in the front yard after defendant refused to accept them and attempted to walk away). Here, service of process was not attempted upon Allsopp, but upon Davis, who is undisputedly a person of suitable age and discretion and who resided in the house.

We now turn to whether All-sopp was properly served at his “dwelling house or usual place of abode” under Rule 4(c). In support of his argument that the service of process was flawed because the return of service reflected that service was upon Davis as his “live-in partner,” Allsopp cites Northbrook Indemnity Co. v. Westgate, Ltd., 769 So.2d 890, 893 (Ala.2000), for the general proposition that a judgment is void if the court rendering it lacked subject-matter jurisdiction or if the court acted in a manner inconsistent with due process. Allsopp does not discuss Northbrook and cites no other authority regarding this argument. “It is well established that general propositions of law are not considered ‘supporting authority for purposes of Rule 28. Ex parte Riley, 464 So.2d 92 (Ala.1985).” S.B. v. Saint James Sch., 959 So.2d 72, 89 (Ala.2006). This Court will not “create legal arguments for a party based on undelineated general propositions unsupported by authority or argument.” Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992). Further, it is well settled that “ ‘[w]here an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court’s duty nor its function to perform all the legal research for an appellant.’ ” Spradlin v. Birmingham Airport Auth., 613 So.2d 347, 348 (Ala.1993)(quoting Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala.1990)).

In Northbrook, supra, the corporation moved to vacate a default judgment based on the lack of service of process on the ground that the office where notice was served was not one of the corporation’s “usual places of business” at that time. In Northbrook, we discussed the holding in Palomar Insurance Corp., supra, that the clerk’s notation of proper service creates a presumption of proper service that can be rebutted only by clear and convincing evidence. We noted that Palomar Insurance established only that the clerk mailed the process by certified mail under Rule 4.2(b)(1) and that the person signing the certified-mail receipt received the process. We noted that Palomar Insurance did not establish a presumption under Rule 4(c) that the person signing the receipt was a proper person to receive process or that the place of service was the defendant’s dwelling house or usual place of abode. In the present case, we recognize that the return of service does not create a presumption that Davis’s residence (where Allsopp was served) was Allsopp’s usual place of abode.

In support of his argument that Davis’s house was not his usual place of abode, Allsopp cites several case, including Bogus v. Bank of New York, 49 So.3d 719 (Ala.Civ.App.2010), and McDermott v. Tabb, 32 So.3d 1 (Ala.2009), for the proposition that the plaintiff has the burden of proving that service of process was performed legally and correctly. He cites Ex parte Pate, 673 So.2d 427 (Ala.1995), for the proposition that a judgment is void if the trial court rendering it acted in a manner inconsistent with due process. He cites King v. Barnes, 54 So.3d 900 (Ala.Civ.App.2010), for the proposition that a trial court is not at liberty to ignore undisputed evidence. These cases are cited for general propositions of law regarding service, but Allsopp fails to discuss the meaning of the phrase “usual place of abode” as that phrase is used in conjunction with service of process. Instead, Allsopp simply argues that the evidence that he resided in Georgia at the time the process server hand-delivered the summons and complaint to Davis at her residence was uncontroverted.

In Hudson v. Birmingham Water Works Co., 238 Ala. 38, 189 So. 72 (1939), the sole issue was whether leaving a copy of demand for possession at the tenant’s place of business satisfied the relevant statute, which permitted a copy of demand to be left at the “usual place of abode” of the party holding over in the rented premises. This Court stated:

“In 1 Corpus Juris 304, ‘abode’ is defined as one’s fixed place of residence for the time being; the place where a person dwells. And under the treatment of the subject of ‘process’ in 50 Corpus Juris 492, numerous authorities are cited to the effect that under the language of a statute as to service of notice akin to that of our own, it is not sufficient to leave a copy of such demand at one’s place of business. See, also, 4 Words and Phrases, Second Series, p. 1112. And in the absence of any intent to the contrary, the words ‘usual place of abode’ must be given their common ordinary meaning.”

238 Ala. at 39, 189 So. at 73. In Hudson, this Court held that the place of business was not a person’s usual place of abode.

More recently, in Truss v. Chappell, 4 So.3d 1110 (Ala.2008), this Court held that the default judgment against the defendant was void because service of process was invalid where the evidence, in the form of affidavits, indicated that the defendant was served at his mother’s house. The mother’s affidavit stated that the defendant was in the armed services and that he had been called to service in Iraq and may have been overseas or “stationed” in another state at the time service was attempted. In Truss, there was no evidence before the trial court indicating that the defendant was, at the time of the alleged service, or ever had been, a resident of the particular address at which service was attempted; therefore, there was no evidence indicating that the mother’s house was the defendant’s “dwelling house or usual place of abode.”

Charles Alan Wright and Arthur R. Miller’s treatise on Federal Practice and Procedure discusses “dwelling house or usual place of abode” as follows:

“The language ‘dwelling house or usual place of abode’ in Rule 4(e)(2) is taken directly from the former Equity Rule 13. Despite the length of time these words have been a part of federal practice, the judicial decisions do not make clear precisely what they mean and the facts of a particular case often prove to be crucial. Indeed, because of today’s environment of global travel, job mobility, and multiple residences, the meaning of the phrase has been blurred even further. The majority of cases interpreting the words in the context of determining the validity of service of process appear to have focused on their literal meaning.”

4A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure: Civil § 1096 (3d ed.2002).

Other courts have addressed the phrase “usual place of abode” in the context of service of process. A person can have more than one “usual place of abode,” provided that each contains sufficient indicia of permanence. National Dev. Co. v. Triad Holding Corp., 980 F.2d 258 (2d Cir.1991) (holding that one of several houses throughout the world among which the defendant divided his time constituted a dwelling house or usual place of abode for purpose of service of process, regardless of the facts that it was not the defendant’s principal domicile and that he spent comparatively little time there). Ultimately, courts look at the facts of each particular case. Courts evaluate those facts mindful that the purpose of Rule 4 is to ensure that service is reasonably calculated to provide a defendant with actual notice of the action. Karlsson v. Rabinowitz, 318 F.2d 666 (4th Cir.1963) (holding that service was proper where a copy of the summons and complaint was left with the defendant’s wife at the defendant’s Maryland house, in which the defendant had lived before moving ahead of his family to Arizona, where he had purchased a house intending never to return to Maryland and to move his family to Arizona, noting that the service was sufficient to satisfy the requirements of service at the defendant’s “dwelling house or usual place of abode” where the service succeeded in actually apprising him of the lawsuit); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (holding that due process requires that “notice be reasonably calculated under all circumstances” to provide parties with notice of the pending action).

In the present case, there is evidence to support a conclusion that Allsopp had a “usual place of abode” at Davis’s residence on Stage Coach Drive at the time of service. Allsopp and Davis had dated for years and were engaged in either August or October 2008 and were married in March 2009. Allsopp stated that he was involved in the real-estate transactions that are the subject of this action and that Davis was the real-estate agent in that transaction. A receipt shows that Allsopp was in Huntsville on May 1, 2008, the day after service. We note that the process server testified that before April 30, 2008, he attempted to serve Allsopp on Jordan Lane in Huntsville, where Davis and All-sopp now reside. However, Allsopp does not argue that Jordan Lane was his usual place of abode; instead, he contends that he was residing in Georgia on April 30, 2008. The process server testified that he saw Allsopp at Davis’s house on April 30, 2008. Davis admitted that there was a man at her house on Stage Coach Drive on April 30, 2008. In addition, the trial court heard testimony from the process server, apparently without objection, to the effect that Davis answered in the affirmative when asked if Allsopp “resided” at the house on Stage Coach Drive. Accordingly, the trial court did not err in denying All-sopp’s Rule 60(b)(4) motion for relief from judgment on the ground of insufficient service because there are facts to support the trial court’s finding that Stage Coach Drive was Allsopp’s usual place of abode.

Next, Allsopp argues that the trial court erred in not ordering him to submit along with Davis and Naysa Realty to arbitration when he was the Boldings’ “agent” under the real-estate contracts. Allsopp never raised his arbitration argument before the trial court. It is well settled that an appellate court may not hold a trial court in error in regard to theories or issues not presented to that court. Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988); Boshell v. Keith, 418 So.2d 89 (Ala.1982). An issue may not be raised for the first time on appeal. An drews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992).

Based on the foregoing, we conclude that the judgment of the trial court is due to be affirmed.

AFFIRMED.

MALONE, C.J., and STUART, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.

WOODALL, J., concurs in the result.

      . The attorney for Davis and Naysa Realty sent a copy of their motion to compel arbitration to Allsopp at the address for Naysa Realty-

      . In Ex parte Citizens Property Insurance Corp., 15 So.3d 511 (Ala.2009), an insurer petitioned this Court for a writ of mandamus directing the trial court to vacate its order denying the insurer’s motion to dismiss for lack of personal jurisdiction. In addressing the merits of the petition, this Court noted that the trial court did not make any findings of fact based on oral testimony that might have implicated the ore tenus rule.

      . No argument is made that Davis is a person authorized by Allsopp by appointment or by law to receive service on his behalf.

      . It is well settled that federal decisions regarding the Federal Rules of Civil Procedure are highly persuasive when this Court is called upon to construe the Alabama Rules of Civil Procedure because the Alabama Rules of Civil Procedure are modeled upon the Federal Rules of Civil Procedure. Ex parte Full Circle Distribution, LLC, 883 So.2d 638 (Ala.2003).

      . Allsopp had a power of attorney for the Boldings, but he was not a real-estate agent.


source: Caselaw Access Project

license: Public Domain

text:
    OAK GROVE RESOURCES, LLC, and CLIFFS NORTH AMERICAN COAL, LLC v. Tommy WHITE et al.
    1100525.
    Supreme Court of Alabama.
    Dec. 16, 2011.
    Sid J. Trant, Rusha C. Smith, and Anna Manasco Dionne of Bradley Arant Boult Cummings LLP, Birmingham; Scott Burnett Smith of Bradley Arant Boult Cummings LLP, Huntsville; and J. William Manuel of Bradley Arant Boult Cummings LLP, Jackson, Mississippi, for appellants.
    J. Gusty Yearout of Yearout & Traylor, PC, Birmingham; and Jim Entrekin, Jr., of Entrekin Consulting, L.L.C., Birmingham, for appellees.
   BOLIN, Justice.

Oak Grove Resources, LLC, and Cliffs North American Coal, LLC (hereinafter collectively referred to as “Oak Grove”), appeal from the trial court’s order in favor of a class of plaintiffs in this toxic-tort class action, finding that Oak Grove failed to satisfy the requirements of a settlement agreement between the parties and ordering the continued monitoring of air near the plaintiffs’ properties for the presence of coal dust for a period of one year.

Facts and Procedural History

On July 31, 1997, the plaintiffs sued Oak Grove alleging that it operated the Concord Coal Preparation Plant in a manner that caused coal dust to become airborne and to migrate to their properties, where it settled, causing them to suffer both personal injury and property damage. In October 2002, the parties entered into a settlement agreement (“the 2002 settlement agreement”); the 2002 settlement agreement provided for certain injunctive relief and the payment of attorney fees and expenses. The injunctive relief required Oak Grove to complete 14 specific remedial measures within 24 months of the execution of the 2002 settlement agreement. The 2002 settlement agreement provided the following with respect to the remedial measures:

“The remedial measures set out herein shall include the proper maintenance and upgrade of the system to facilitate the goals of eliminating or minimizing particulate matter and other airborne emissions affecting the plaintiff class. The Plaintiffs’ expert shall review the above remedial measures and shall inspect the facility, approve or suggest modifications or additional remedial measures. Should the proposed additional remedial measures not be acceptable to [Oak Grove], the parties shall present the dispute to the court. Once every six (6) months for a period of twenty-four (24) months, [Oak Grove] shall provide to plaintiffs’ expert and to the Court a report as to the status of compliance with the injunctive relief required by this Agreement. Plaintiffs’ expert may revisit the facility after receipt and review of each such report, if necessary, to confirm the status of compliance.”

The 2002 settlement agreement also provided that the trial court “shall retain exclusive jurisdiction over this controversy, the interpretation, implementation, application, and enforcement of this Settlement Agreement, the Final Judgement, and all injunctions and releases therein contained.”

Following a fairness hearing, the trial court, on October 31, 2002, entered a final order approving the 2002 settlement agreement and stating:

“The Court finds, based on the evidence presented at the Fairness Hearing and the submittals of the parties, that completion and continued performance of the Injunctive Relief set forth in the Settlement Agreement will prevent or minimize the off-site migration of particulate matter or other airborne emissions generated in the operations of [Oak Grove] at the ... Concord coal preparation plant such that any such off site migration will not be so offensive as to impair comfortable enjoyment of property or to materially interfere with the ordinary comforts of human existence.”

The trial court also expressly retained jurisdiction over the matter for the purpose of “enforcing [the] Final Judgment Order and for the purposes of exercising its equitable powers supervising [Oak Grove’s] commitments in carrying out the Settlement.”

Oak Grove implemented the remedial measures at the Concord plant following the trial court’s approval of the 2002 settlement agreement. However, the plaintiffs continued to complain that the Concord plant emitted coal dust onto their properties and that the remedial measures had not satisfactorily solved the problem. Based on the recommendation of their expert, the plaintiffs argued that the injunc-tive relief contained in the 2002 settlement agreement should be modified and that additional remedial measures should be taken in order to facilitate the goal of eliminating or minimizing the effect of coal dust on the plaintiffs’ properties.

The plaintiffs and Oak Grove negotiated and ultimately agreed to supplement the 2002 settlement agreement to allow for certain specific additional remedial measures relating to the Concord plant. The supplemental agreement called for a one-year ambient-air-monitoring program to determine whether there was an excessive amount of coal dust migrating from the Concord plant to the plaintiffs’ properties. If the air-monitoring program showed no exceedances of predetermined levels of coal dust migrating from the plant to the plaintiffs’ properties then the parties agreed that the 2002 settlement agreement would be fulfilled and the case resolved. Specifically, the parties agreed that if the air monitoring did not establish any excee-dances, the plaintiffs would (1) release Oak Grove from any and all claims the plaintiffs would have had up to the date of Oak Grove’s dismissal; (2) be permanently enjoined from bringing claims against Oak Grove that could have been asserted in this action; and (3) jointly submit with Oak Grove a proposed order stating that Oak Grove had fully complied with the 2002 settlement agreement. If, however, the air-monitoring program showed excee-dances, the plaintiffs would be allowed to petition the trial court for a determination as to whether further remedial measures were necessary. On December 11, 2008, the trial court entered an order approving the parties’ supplemental agreement (“the 2008 supplement”), stating that “should there not be a successful completion of the monitoring program, then this Court retains jurisdiction to direct and supervise, consistent with the Settlement Agreement, additional remedial measures.... ”

The 2008 supplement set forth a number of extensive details regarding the air-monitoring program. The 2008 supplement provided for two air monitors to be installed — one in the Concord neighborhood near the plant (“the neighborhood site”) and one on the premises of the Concord plant between the plant and the neighborhood (“the plant site”). The 2008 supplement did not provide an exact location for the placement of the monitors but provided only that the parties and their experts would “work together in good faith to determine the exact locations for the two sites.”

The 2008 supplement established an in-depth scientific method for collecting and analyzing air samples to determine whether there was an excessive migration of coal-dust pollutants from the plant to the plaintiffs’ properties. The 2008 supplement provided that a validated measurement of ambient air containing particulate matter above 150ug/m3 at the neighborhood site would be deemed an exceedance. If an exceedance occurred that was determined to be attributable to the Concord plant, then the plaintiffs’ expert was entitled to inspect the Concord plant. If two or more consecutive exceedances occurred that were attributable to the Concord plant that were not timely corrected by Oak Grove, then the plaintiffs could recommend to the trial court additional modifications or remedial measures to be implemented.

The 2008 supplement further adopted a specific air-monitoring protocol prepared by Shaw Environmental, Inc. (“the Shaw protocol”). The Shaw protocol, among other things, set forth the criteria for locating, placing, and handling the monitors used for the ambient-air testing. Section 4.4 of the Shaw protocol provides:

“[United States Environmental Protection Agency] siting criteria states that optimal placement of the sampler inlet is at breathing height [approximately 1.8 meters (6 feet) ] and that the samplers are to be placed at least 20 meters (65.6 feet) from the drip line of trees, and located away from obstacles such as buildings, so that the distance between obstacles and the samplers is at least twice the height that the obstacle protrudes above the sampler. In addition, there must be unrestricted airflow in an arc of at least 270 degrees around the sampler. For this project, the sampler locations will be selected that best meet the necessary criteria for location from obstructions and trees. Taking into account of property boundaries, access, right-of-ways, and tree lines, a ‘best-fit’ scenario will be used to site the monitors, such that each sited monitor meets the siting criteria as best as is possible considering expected limitations, such as, trees, homes, etc. The sample inlets will be located approximately 1.8 meters (6 feet) above the ground.”

The 2008 supplement also provided a multistep process by which the parties could dispute the test results of the air-monitoring program. Pursuant to this process, if neither party objected to the test results, then those results would be deemed “final and binding.” Finally, the 2008 supplement provided that Oak Grove would pay the plaintiffs attorney fees and costs incurred in the case.

Although the trial court approved the 2008 supplement, the issue of the exact locations at which to place the air monitors remained undetermined. The parties had had numerous discussions relative to this issue. In September 2008, the parties’ counsel met to discuss the location of the air monitors. Counsel for the plaintiffs recommended four potential locations for the placement of the air monitor at the neighborhood site. On October 6, 2008, counsel for Oak Grove notified the plaintiffs by electronic mail (“e-mail”) that the proposed locations for the air monitor at the neighborhood site were rejected by Oak Grove as being unsuitable because of their close proximity to trees, which violated both Environmental Protection Agency (“EPA”) criteria and the Shaw protocol. However, in that same e-mail counsel for Oak Grove proposed an alternative location for the neighborhood site in a five-acre open field. Counsel for Oak Grove stated that this proposed neighborhood site was secured by a fence and a gate; that the site was located a sufficient distance from the tree line so as to prevent obstruction of the monitor; and that the site was in the process of being purchased by Oak Grove. Oak Grove provided the plaintiffs with a map of the proposed location of the neighborhood site, which did not depict any trees in the area.

On October 8, 2008, counsel for the plaintiffs responded by telephone and informed Oak Grove that he would visit the proposed alternative neighborhood site and that he “thought it would be acceptable.” On October 10, 2008, counsel for the plaintiffs notified Oak Grove by e-mail stating that, “[a]t this time, I do not have a problem with your choice of the site.”

On October 24, 2008, Oak Grove forwarded to the plaintiffs’ counsel an updated draft of the Shaw protocol, including a map, identifying a more exact location in the five-acre field where it was proposing to place the neighborhood-site air monitor. Counsel for the plaintiffs responded by email on October 28, 2008, stating that Jim Tarr, the plaintiffs’ environmental expert, “wants the off-site location in the same area but closer to the neighborhood.” On October 29, 2008, the parties’ counsel met, and the plaintiffs’ counsel informed counsel for Oak Grove at that time that Tarr wanted the neighborhood site moved to the east so that it would be in a direct line with the plant site to the south and the center of the Concord neighborhood to the north. On November 4, 2008, counsel for the plaintiffs reaffirmed in an e-mail to Oak Grove the request to have the neighborhood site moved, stating:

“What we want to accomplish is to have an independent contractor ... do the actual monitoring. That would include setting it up in accordance with basically what you provided me in doeu-ments, with the exception of moving the sites slightly and making sure that the [neighborhood site] will be facing in the correct direction.”

Counsel for Oak Grove consulted with Ralph Lopez, Oak Grove’s environmental manager, and Shaw Environmental in order to identify a new neighborhood site that would satisfy both the plaintiffs’ requests and the EPA criteria for air monitoring. On December 24, 2008, counsel for Oak Grove forwarded an e-mail to the plaintiffs’ counsel along with an aerial photograph prepared by Lopez depicting a new and more easterly neighborhood site. The aerial photograph depicted both the neighborhood site and the plant site, along with the natural landscape, including the tree lines. The e-mail stated:

“Here is the depiction of the approximate locations of the monitors. As you can see from the picture below, we cannot go any further east with neighborhood site because of the trees and the difficult terrain. The plant monitor and the neighborhood monitor will be in a straight line from the plant. We will proceed on this basis unless you have a question or concern.”

On January 7, 2009, counsel for the plaintiffs responded as follows:

“I can’t tell if this is what we originally agreed on after moving the original proposed site to the right[] on the map. This one appears to have a forest in front of it. If this is what we originally discussed with our proposed move I don’t have a problem but if it is something different please give me a call.”

Counsel for Oak Grove responded that same day as follows:

“We are moving it as far east as we can, as shown on the map. The ‘forest’ prevents us from going any further, and therefore it is not something different than we discussed.”

A time sheet submitted to Oak Grove by the plaintiffs’ counsel indicates that the plaintiffs’ counsel visited the proposed monitoring sites on January 9, 2009. The plaintiffs’ counsel raised no objection at that time to the proposed sites. There were no further communications between the plaintiffs and Oak Grove regarding the approval of the proposed sites.

Oak Grove began construction and installation of the air monitors in January 2009. On May 28, 2009, counsel for the plaintiffs communicated with Oak Grove by letter inquiring about the progress being made on the installation of the air monitors. On June 25, 2009, Oak Grove notified the plaintiffs that air monitoring at both the neighborhood site and the plant site would begin on July 30, 2009.

In October 2009, approximately two months after testing' had begun, the plaintiffs’ counsel informed Oak Grove’s counsel that he wanted to inspect the air-monitoring locations. Counsel for the plaintiffs and an investigator photographed the monitoring locations and measured the distances from the fences surrounding the monitors to the tree lines. After inspecting the air monitors, counsel for the plaintiffs objected to Oak Grove regarding the locations of the monitors, stating that the air monitors were “in the trees.”

On November 16, 2009, the plaintiffs moved the trial court to have the court inspect personally, along with the plaintiffs’ expert, the air monitors, stating that the monitors appeared to be “constructed so that inaccurate readings would result” and that the monitors were not located “in open areas where you would expect to obtain accurate readings, but are essentially hidden in the woods.” On November 18, 2009, after receiving the plaintiffs’ motion for inspection, counsel for Oak Grove informed the plaintiffs by letter that it had no opposition to the plaintiffs’ counsel and expert inspecting the air-monitoring sites. On November 20, 2009, Oak Grove responded to the plaintiffs’ motion for an inspection, stating, among other things, that the terms of the 2008 supplement allowed the plaintiffs’ expert to inspect the monitoring sites; that the plaintiffs should not now be allowed to complain about the location of the air-monitoring sites because the sites had been agreed upon by the parties after extensive negotiations; and that the motion for inspection was premature because the plaintiffs had not followed the procedures set forth in the 2008 supplement for inspecting and challenging the air-monitoring program. On December 1, 2009, the trial court conducted a hearing on the plaintiffs’ motion for inspection. During the hearing the parties agreed to allow the plaintiffs’ expert, Tarr, to inspect the air-monitoring sites.

Tarr conducted his inspection of the air-monitoring sites on January 28, 2010. On June 2, 2010, the plaintiffs’ counsel notified Oak Grove’s counsel by letter of certain concerns the plaintiffs had with the location of the air-monitoring sites. The plaintiffs stated that the air-monitoring locations violated the EPA criteria and the Shaw protocol because of the close proximity of the air monitors to the tree lines. On June 25, 2010, Oak Grove responded by letter stating that the site distances for the air monitors from the tree lines were well within what is required by the EPA standards and the Shaw protocol. As of June 25, 2010, the air-monitoring results from both the plant site and the neighborhood site had indicated no exceedances of coal dust.

On June 30, 2010, the plaintiffs moved the trial court to require Oak Grove to comply with the 2002 settlement agreement and the 2008 supplement and orders of the court and further moved the trial court for additional remedial measures to ensure compliance with those agreements and court orders. The plaintiffs alleged that Oak Grove had not been in compliance with the trial court’s order to reasonably and properly monitor the alleged emission of coal dust from the Concord plant; that there needed to be additional remedial measures employed in order to enforce the trial court’s order; and that the air monitors had been placed at sites where accurate readings of the amounts of coal dust being emitted could not be obtained. The plaintiffs sought a hearing to determine whether Oak Grove had complied with the trial court’s order; requested that the trial court inspect the monitoring sites; requested that the air monitors be relocated to acceptable monitoring locations; and requested that Oak Grove be required to continue air monitoring for an additional year.

On July 12, 2010, Oak Grove responded to the plaintiffs’ motion to comply with the settlement agreements and the court’s orders and for further remedial measures, arguing that the plaintiffs should not now be allowed to object to the monitor locations after working with Oak Grove to select those locations; that the plaintiffs’ assertion that the monitors are improperly located too close to the tree lines is incorrect; and that the plaintiffs’ motion should be stricken or denied as premature, because the plaintiffs failed to object to the air-monitoring process in accordance with the detailed procedures set forth in the 2008 supplement. ■

On September 22, 2010, Oak Grove moved the trial court to enforce the 2008 supplement and to dismiss the case with prejudice, stating that the air-monitoring program had been conducted pursuant to the 2008 supplement and the Shaw protocol until August 12, 2010, with no excee-dances of coal dust being reported at the neighborhood site during the one-year monitoring period. Oak Grove argued that the plaintiffs were not entitled to further remedial measures in the form of continued air monitoring because, it said, the conditions of the 2008 supplement and the requirements of the Shaw protocol had been satisfied. Oak Grove further argued that it was entitled to a release of the plaintiffs’ claims against it and to a dismissal of those claims with prejudice.

On September 24, 2010, the plaintiffs filed a petition asking the trial court to enforce the 2002 settlement agreement and the 2008 supplement and for court intervention. The plaintiffs stated that the parties agreed in the 2008 supplement that the location chosen for the neighborhood site would be a location that would give the parties and the trial court an accurate measurement of the coal dust being emitted into the community. The plaintiffs stated that the neighborhood site was to be a “best-fit” site that would conform to acceptable environmental standards. The plaintiffs alleged that, although they were shown the proposed location of the neighborhood site, they never actually saw the exact location chosen by Oak Grove because the air monitor at the neighborhood site was actually constructed several months after they were shown the proposed location. The plaintiffs further alleged that the neighborhood site was unacceptable because it was hidden and obstructed by trees, and they objected and demanded a relocation of the air monitor in the neighborhood site. The plaintiffs argued that Oak Grove was in breach of the 2002 settlement agreement, the 2008 supplement, and the agreement of the parties to reduce or to eliminate pollution in the Concord community. The plaintiffs sought an order from the trial court requiring the placement of additional monitoring devices in the neighborhood site for an additional 18 months.

On December 3, 2010, Oak Grove responded to the plaintiffs’ petition to enforce the settlement agreements and for court intervention, arguing, among other things, that the plaintiffs had agreed to the location of the air-monitoring sites and that the plaintiffs’ objections to the air-monitoring sites were barred by the doctrine of laches.

Following an ore tenus proceeding, the trial court, on January 14, 2011, entered an order granting the plaintiffs’ motion for compliance with the settlement agreements and their petition to enforce those settlement agreements and for court intervention. The trial court ordered additional air monitoring for a period of one year. Oak Grove appeals.

Standard of Review

This Court has stated the following with regard to the standard of review applicable in this case:

“ ‘[A] permanent injunction is reviewed de novo.’ TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1241-12 (Ala.1999), overruled on other grounds by Holiday Isle, LLC v. Adkins, 12 So.3d 1173, 1176 (Ala.2008). ‘Nevertheless, this Court has noted that a trial court’s consideration of ore tenus testimony has a bearing upon the standard of review we apply to the entry of a permanent injunction.’ Classroomdirect.com, LLC v. Draphix, LLC, 992 So.2d 692, 701 (Ala.2008).
“ ‘ “Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment.”
‘American Petroleum Equip. & Constr., Inc. v. Fancher, 708 So.2d 129, 132 (Ala.1997) (citations omitted).’
“Collins v. Rodgers, 938 So.2d 379, 384 (Ala.2006).”

Kappa Sigma Fraternity v. Price-Williams, 40 So.3d 683, 692-93 (Ala.2009).

Discussion

Oak Grove argues, among other things, that because the plaintiffs acquiesced in the placement of the air monitors and delayed raising any objections to the locations of the monitors until after the monitors had been constructed and testing had commenced, they are barred by the doctrine of laches from seeking further injunc-tive relief in the form of continued air monitoring pursuant to the 2008 supplement. The plaintiffs contend that there was no agreement between the parties as to the placement of the air monitors and that nothing in the 2008 supplement prohibits the plaintiffs from objecting to the location of a monitor either before or after initially approving a location or after testing has begun. Further, they contend that Oak Grove’s equitable-bar defense fails because, they say, they objected to the monitor locations “only a short time [two months] after” air monitoring had commenced.

Oak Grove has asserted the equitable defense of laches in support of its position. This Court has stated:

“ ‘ “Laches” is defined as neglect to assert a right or a claim that, taken together with a lapse of time and other circumstances causing disadvantage or prejudice to the adverse party, operates as a bar.’ Ex parte Grubbs, 542 So.2d 927, 928 (Ala.1989) (citing Black’s Law Dictionary 787 (5th ed.1979)). It is an equitable doctrine applied by the courts to prevent a party that has delayed asserting a claim to assert that claim after some change in conditions has occurred that would make belated enforcement of the claim unjust. Ex parte Grubbs, 542 So.2d at 929. A party asserting laches as a defense is generally required to show that the plaintiff has delayed in asserting a claim, that that delay is inexcusable, and that the delay has caused the party asserting the defense undue prejudice. Id.”

Elliott v. Navistar, Inc., 65 So.3d 379, 386 (Ala.2010). Further,

“ ‘ “ ‘[l]aches, in legal significance, is not mere delay, but delay that works a disadvantage to another. So long as parties are in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as es-toppel against the assertion of the right.’ ” ’ ”

Sykes v. Sykes, 262 Ala. 277, 281, 78 So.2d 273, 277 (1954) (quoting Hauser v. Foley & Co., 190 Ala. 437, 440, 67 So. 252, 253 (1914), quoting in turn other sources). Because laches is a threshold defense that we find dispositive in this case, we will address that argument first. City of Huntsville v. Stove House 5, Inc., 3 So.3d 186 (Ala.2008).

The record indicates that there were considerable communications and discussions between the parties regarding the location of the air monitor at the neighborhood site. Counsel for the plaintiffs initially recommended four potential locations for the neighborhood-site air monitor; however, Oak Grove rejected those four potential sites as unsuitable because of their close proximity to trees, a closeness that violated EPA criteria and the Shaw protocol. Oak Grove then recommended a five-acre open field as an alternative location for the neighborhood site. Oak Grove provided the plaintiffs with a map of the proposed location of the neighborhood site, which did not depict any trees in the area. Counsel for the plaintiffs informed Oak Grove that he would visit the proposed alternative site and that he “thought it would be acceptable.” Subsequently, counsel for the plaintiffs notified Oak Grove that, “[a]t this time, I do not have a problem with your choice of the site.”

After receiving the above qualified confirmation from the plaintiffs that the open-field location was acceptable, Oak Grove recommended to the plaintiffs a more exact location within the five-acre field in which to place the neighborhood-site air monitor. After reviewing the more precise location recommended by Oak Grove, counsel for the plaintiffs requested that the neighborhood site be moved “closer to the neighborhood.” Shortly thereafter, the plaintiffs also requested that the neighborhood site be moved to the east so that it would be in a direct line with the plant site to the south and to the center of the Concord community to the north. On November 4, 2008, counsel for the plaintiffs reaffirmed in an e-mail to Oak Grove the request to move the neighborhood site and stated that the neighborhood site would be set up “in accordance with basically what you provided me in documents, with the exception of moving the sites slightly and making sure that the [neighborhood site] will be facing in the correct direction.” On December 24, 2008, counsel for Oak Grove forwarded an e-mail to the plaintiffs’ counsel along with an aerial photograph depicting a new and more easterly neighborhood site within the five-acre open field. The aerial photograph depicted the neighborhood site along with the natural landscape, including the tree lines. The e-mail informed the plaintiffs that Oak Grove “[could not] go any further east with neighborhood site because of the trees and the difficult terrain”; that the “plant monitor and the neighborhood monitor will be in a straight line from the plant”; and that it would “proceed on this basis unless you have a question or concern.”

The plaintiffs’ counsel then responded on January 7, 2009, to Oak Grove’s e-mail and the receipt of the aerial photograph, stating:

“I can’t tell if this is what we originally agreed on after moving the original proposed site to the right on the map. This one appears to have a forest in front of it. If this is what we originally discussed with our proposed move I don’t have a problem but if it is something different please give me a call.”

Counsel for Oak Grove responded by assuring the plaintiffs’ counsel that this was the location that had been discussed by the parties and that it was “not something different than we discussed.” Counsel for the plaintiffs visited the final proposed location for the air monitor at the neighborhood site on January 9, 2009, and raised no objection at that time to the location of the monitor.

Oak Grove began constructing and installing the air monitors shortly after the plaintiffs’ counsel visited the proposed sites and voiced no objection to the proposed locations of the monitors. The record indicates that while the air monitors were being constructed the parties communicated with each other regarding the progress of the construction of the monitors, as well as other issues. However, nothing in the record indicates that the plaintiffs’ counsel raised any objections to the location of the air monitors while the air monitors were being constructed.

On June 25, 2009, Oak Grove notified the plaintiffs that air monitoring at both the neighborhood site and the plant site would begin on July 30, 2009. The initial test results from the air-monitoring program indicated that no exceedances of coal dust were reaching the Concord community. In October 2009, two months after testing had begun, the plaintiffs’ counsel and investigator visited the monitoring locations for the first time since January 2009 and took their first measurements of the distances between the air monitors and the tree lines. Shortly thereafter, the plaintiffs raised their first objections regarding the locations of the monitoring sites.

Tarr, the plaintiffs’ expert, did not personally visit the site locations to conduct his inspection until January 28, 2010, almost seven months after testing had begun. Following Tarr’s inspection in January 2010, the plaintiffs, on June 2, 2010, raised further objections to Oak Grove regarding the locations of the air-monitoring sites. On June 30, 2010, the plaintiffs first asserted their right under the 2008 supplement to further remedial measures in the form of continued air monitoring based on their claim that Oak Grove was not in compliance with the 2008 supplement because it had violated the terms of the supplement by locating the air-monitoring sites too close to the tree lines.

The evidence indicates that the plaintiffs were aware of the location of the air monitors in January 2009, after their counsel had viewed the proposed locations both in person and on an aerial photograph that depicted the proximity of the proposed sites to the tree lines. The plaintiffs made no objection to the location of the air monitors at this time based on their proximity to the tree lines. After much discussion and communication by the parties, including the changing of the initial specific neighborhood-site location on the five-acre tract as requested by the plaintiffs, and in reliance on the plaintiffs’ acquiescence to the site as moved to accommodate the plaintiffs, Oak Grove, at substantial expense, which included purchasing the property on which the neighborhood site was constructed, thereafter constructed and installed the air monitors at the proposed sites. At no time during the construction of the air monitors and before testing commenced did the plaintiffs raise objections to the locations of the monitors. Rather, no objection was raised by the plaintiffs to the site locations until two months after testing began in July 2009. The plaintiffs’ expert did not visit the air-monitoring sites until January 2010, after which the plaintiffs raised further objections and eventually sought in June 2010 to enforce their right to further remedial measures based on their claim that the monitoring sites were located too close to the tree lines. We conclude that the plaintiffs inexcusably delayed in asserting their rights under the 2008 supplement and that Oak Grove would be unduly prejudiced if the plaintiffs are allowed to assert those rights at this point. Elliott, supra. Accordingly, we conclude that the trial court’s judgment awarding further injunc-tive relief in the form of continued air monitoring is due to be reversed and the case remanded. Our resolution of this issue pretermits discussion of the remaining issues raised by Oak Grove.

REVERSED AND REMANDED.

MALONE, C.J., and WOODALL, STUART, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.

      . The class of plaintiffs consists of property owners residing in the vicinity of the Concord Coal Preparation Plant located in the Concord community in Jefferson County.

      . The plaintiffs originally named as defendants U.S. Steel Mining Company, LLC, United States Steel Corporation, and K-Lee Processing, Inc. In December 2009, Oak Grove Resources and Cliffs North American Coal were added as defendants because they succeeded U.S. Steel Mining Company as operator and owner, respectively, of the Concord Coal Preparation Plant. The originally named defendants were released pursuant to a settlement agreement.

      .Tarr testified that he did not recall having any concern with the location of the neighborhood site or making any recommendations to move the proposed site. Moving the proposed site "closer to the neighborhood” would equate to moving the site north because the Concord neighborhood was located to the north of the proposed site.

      . Moving the monitor site to the east would have the effect of moving the monitor closer to the tree line, but it would still conform with the distances required by the Shaw protocol.

      . Moving the neighborhood site to the "right" on the map equates to moving it east.

      . A considerable amount of open field lies to the northwest of the final location of the neighborhood-site air monitor.

      . The initial results from the air-monitoring tests indicated no exceedances of coal dust.

      . The plaintiffs adopted the allegations contained in their June 30, 2010, motion to require Oak Grove to comply with the settlement agreements and orders of the court, which was still pending before the trial court when they filed their September 24, 2010, motion.

      . Although Oak Grove casts its arguments in terms of the placement of "monitors/' the briefs on appeal emphasize the location of the monitor at the neighborhood site.