author: THOMAS, Judge. MOORE, Judge,

text:
    James CLAYTON v. Camden CLAYTON.
    2091045.
    Court of Civil Appeals of Alabama.
    March 11, 2011.
    Certiorari Denied Aug. 5, 2011 Alabama Supreme Court 1100716.

      E. Allen Dodd, Jr., of Scruggs, Dodd & Dodd, Attorneys, P.A., Fort Payne, for appellant.
    F. Michael Haney of Inzer, Haney & McWhorter, P.A., Gadsden, for appellee.
   THOMAS, Judge.

James Clayton (“James”), the son of Es-tellene Clayton (“Ms. Clayton”), appeals from the trial court’s judgment holding that Camden Clayton (“Camden”), James’s son, is entitled to one-half of the royalties from a sublease of the mining rights in property that James had leased from Ms. Clayton (“the property”). James had leased the property from Ms. Clayton before he and Camden inherited the property as joint tenants from Ms. Clayton.

Facts and Procedural History

Before her death on July 28, 2009, Ms. Clayton was the sole owner of a 182-acre piece of land. In October 1999, Ms. Clayton leased the property, which comprises approximately 103 acres of the 182-acre tract, to James. The lease was for a 10-year term with the option to renew the lease for another 10-year term, which James exercised before Ms. Clayton’s death. On December 10,1999, James subleased the mining rights to Blount Springs Sand & Gravel Co., Inc. (“Blount Springs”), “for the purpose of exploring for, mining, taking out, and removing therefrom the merchantable limestone and sandstone”; Ms. Clayton was not a party to the sublease and was not entitled to the royalties resulting therefrom. The sublease required Blount Springs to pay James $10,000 per year. The sublease also required Blount Springs to pay James royalties in the amount of 20 cents per ton for marketable and/or saleable limestone and sandstone (hereinafter referred to as the “tonnage royalty” or “tonnage royalties”); the $10,000 payment was credited to the tonnage royalty owed to James. The sublease was for a 20-year term.

Ms. Clayton died testate on July 28, 2009. James’s lease was still operative at the time of Ms. Clayton’s death. Ms. Clayton’s will named James as personal representative of her estate and devised the 182-acre tract, including the property to James and Camden as joint tenants with the right of survivorship. James filed a petition to probate Ms. Clayton’s will in the Etowah County Probate Court on August 4, 2009. On September 9, 2009, Camden filed a petition to remove the proceedings to the Etowah Circuit Court (“the trial court”); the trial court granted Camden’s petition and entered an order of removal on September 15, 2009.

On October 2, 2009, Camden filed a petition alleging that James had collected tonnage royalties from Goodhope Contracting, Inc. (“Goodhope”), and that James had not given Camden the one-half interest in the tonnage royalties to which Camden alleged he was entitled as a joint tenant of the property. Camden requested that the trial court order Goodhope to pay all future tonnage royalties to the clerk of the trial court to be held pending a final decision as to James’s and Camden’s rights to the tonnage royalties. The trial court granted Camden’s petition on November 10, 2009.

On December 23, 2009, Camden filed a contempt motion against James, alleging that “at least two rental payments have occurred since the entry of the [November 10, 2009,] order and neither have been paid into the court by [James].” Camden further alleged that James had attempted to oust Camden and that James had committed, and would continue to commit, waste on the property. On January 14, 2010, the trial court again ordered that Goodhope pay all tonnage royalties to the clerk of the trial court. The trial court also set the matter for a hearing to occur on February 2, 2010.

On January 29, 2010, Camden filed a motion to amend the January 14, 2010, order of the trial court, requesting that the order require Blount Springs, the company that James had entered into the sublease with, rather than Goodhope, to pay the tonnage royalties to the clerk of the trial court. The trial court granted Camden’s motion on February 1, 2010.

On February 10, 2010, James filed a “motion to set aside order for payment of royalties.” The trial court set James’s motion and all related issues for a hearing to occur on March 1, 2010.

On March 29, 2010, following a nonjury trial, the trial court entered an order in favor of Camden, stating in pertinent part:

“2. That all royalty payments from Blount Springs Sand & Gravel, paid or payable since the death of [Ms.] Clayton, belong equally to Petitioner, Camden Clayton, and Respondent, [James] Clayton. Since the death of [Ms.] Clayton, royalties have been paid in the amount of $89,860.00. Petitioner Camden Clayton is entitled to one-half (½) of said royalties in the sum of $19,980,00. There is currently held by the Clerk of this Court, pursuant to prior Orders of this Court, the sum of $23,751.89. It is ordered that the Clerk shall pay to Camden Clayton the sum of $19,930,00 and pay to [James] Clayton the sum of $3,821.89.
“3. All future royalty payments from Blount Springs Sand & Gravel commencing with all payments due on or after April 1, 2010, shall be divided such that one-half (½) of royalties shall be payable to Camden Clayton ... and one-half (½) to [James] Clayton-”

On April 27, 2010, James filed a motion to alter, amend, or vacate the trial court’s March 29, 2010, order. The trial court denied James’s motion on May 10, 2010. On June 9, 2010, James filed a motion requesting that the trial court set aside its May 10, 2010, order denying James’s motion to alter, amend, or vacate the March 29, 2010, order. Camden filed a motion to strike James’s motion to set aside the May 10, 2010, order, which the trial court granted on June 15, 2010. Also on June 15, 2010, the parties filed a “joint motion to certify [the trial court’s] May 10, 2010, order” as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. The trial court granted the parties’ joint motion, and James appealed to our supreme court. Our supreme court transferred the appeal to this court on August 5, 2010, pursuant to § 12-2-7(6), Ala. Code 1975.

Standard of Review

This court set forth the well established standard by which we review trial court judgments based on ore tenus evidence in Farmers Insurance Co. v. Price-Williams Associates, Inc., 873 So.2d 252 (Ala.Civ.App.2003):

“ ‘When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987). When the trial court in a nonjury case enters a judgment without making specific findings of fact, the appellate court “will assume that the trial judge made those findings necessary to support the judgment.” Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala.1992). Moreover, “[u]nder the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.” Transamerica, 608 So.2d at 378. However, when the trial court improperly applies the law to [the] facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). “Questions of law are not subject to the ore tenus standard of review.” Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (“[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.”).’ ”

873 So.2d at 254-55 (quoting City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002)).

Discussion

Initially, we note that the trial court did not set forth specific findings of fact upon which it based its judgment that the tonnage royalties were to be split evenly between James and Camden. However, as noted earlier, “it is well settled that where the trial court does not make specific factual findings, this court will assume that the trial court made such findings as would support its judgment.” Berryhill v. Reeves, 705 So.2d 505, 507 (Ala.Civ.App.1997) (citing Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992)).

James argues on appeal that he lawfully leased the property from Ms. Clayton before her death, that he lawfully sublet the mining rights to the property to Blount Springs, and, thus, that he is the “sole legal recipient” of the tonnage royalties generated from the property. James further argues that Ms. Clayton’s interest in the property did not include an interest in the tonnage royalties from the sublease and, thus, that Camden’s interest in the property likewise does not include an interest in the tonnage royalties. Relying on Kelly v. Kelly, 250 Ala. 664, 35 So.2d 686 (1948), and Kellum v. Balkum, 93 Ala. 317, 9 So. 463 (1891), James argues that Ms. Clayton’s death did not terminate his lease; rather, he argues, upon Ms. Clayton’s death, he and Camden were substituted as the “ ‘landlords of their ancestor’s tenants....’”

The present case is distinguishable from Kelly and Kellum. In the present case, unlike in Kelly and Kellum, James, the lessee, inherited from Ms. Clayton, the lessor, the property as a joint tenant with the right of survivorship. Under Alabama law, our supreme court has held that “[i]n a joint tenancy each tenant is seized of some equal share while at the same time each owns the whole.” Porter v. Porter, 472 So.2d 630, 634 (Ala.1985) (citing Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972)). Therefore, Ms. Clayton’s reversionary interest in the fee and James’s tenancy interest vested in James when he and Camden inherited the property from Ms. Clayton as joint tenants. Accordingly, James’s lease was destroyed under the doctrine of merger. See Whigham v. Travelodge Int’l, Inc., 349 So.2d 1078, 1085 (Ala.1977) (citing McMahan v. Jacoway, 105 Ala. 585, 17 So. 39 (1894); Otis v. McMillan & Sons, 70 Ala. 46 (1881); and Martin, Bradley & Co. v. Searcy, 3 Stew. 50, 52 (1830)); see also Welsh v. Phillips, 54 Ala. 309, 316 (1875) (“The general rule of law is, that when a greater and less, or a legal and equitable estate, meet and coincide in the same person, they are merged, the one drowned in the other.”). Holding otherwise would result in the absurdity our supreme court warned against in Otis, 70 Ala. at 59: “There can be no greater absurdity, than to place [a man] in the relation of being his own landlord, and his own tenant, at one and the same time; bound himself to pay, and to receive rent.” Our conclusion that James’s lease terminated at the moment James and Camden inherited the property from Ms. Clayton as joint tenants negates James’s further arguments.

The dissent asserts that, “[i]n this case, the same persons have never held and do not hold both the freehold interest and the leasehold interest in the property at issue” because James and Camden inherited the property from Ms. Clayton as joint tenants. 75 So.3d at 657. The dissent further asserts that “Alabama law should recognize that a merger of estates does not occur when a lone tenant under a lease acquires ownership of the freehold estate as a joint tenant with another.” 75 So.3d 658. However, in order to reach the dissent’s conclusion this court would have to ignore the long-held principle noted above that “[i]n a joint tenancy each tenant is seized of some equal share while at the same time each owns the whole.” Porter, 472 So.2d at 634. Under Alabama law, James is considered to own an undivided interest in the whole property; thus, the merger doctrine applies to terminate James’s lease.

In reaching the conclusion that it does, the dissent relies upon a case from the Supreme Court of New Mexico, Tri-Bullion Corp. v. American Smelting & Refining Co., 58 N.M. 787, 277 P.2d 293 (1954). The dissent asserts that in Tri-Bullion “the New Mexico Supreme Court denied application of the merger doctrine in circumstances almost identical to those at issue in this case.” 75 So.3d at 658. Though “almost identical,” the facts in Tri-Bullion present a significant distinction from the present case. In Tri-Bul-lion, American Smelting, a corporation that held a lease allowing it to mine certain real property, later acquired fee-simple ownership of the same real property as tenant in common with Tri-Bullion. 58 N.M. at 792, 277 P.2d at 296. In the present case, James and Camden acquired fee-simple ownership of the property as joint tenants with the right of survivorship.

Alabama law has long recognized a distinction between joint tenants and tenants in common. Under Alabama law, joint tenants share the unities of interest, title, and possession. See Nunn v. Keith, 289 Ala. 518, 524, 268 So.2d 792, 797 (1972) (noting that the unity of time, though a requirement at common law to create a joint tenancy, is not required under Alabama law in order to create a joint tenancy); see also 48A C.J.S. Joint Tenancy § & (2004) (“[I]n ... a joint tenancy ... each of the owners must have one and the same interest; conveyed by the same act or instrument; ... and each must have the entire possession of every parcel of the property held in joint tenancy as well as of the whole.” (footnotes omitted)). Conversely, tenants in common share only the unity of possession. Porter, 472 So.2d at 633 (citing Van Meter v. Grice, 380 So.2d 274 (Ala.1980)) (“[A] tenancy in common requires only one unity, that of possession.”). Further, tenants in common are not considered to own the entirety of the parcel, as in a joint tenancy; rather, each tenant in common owns an undivided part of the parcel. Kellum v. Williams, 252 Ala. 71, 72, 39 So.2d 573, 574 (1949) (“A tenancy in common may be defined as that character of tenancy where two or more persons are entitled to property in such manner that, while there are several freeholds, the possession is not divided but is a single unity....”); see also 86 C.J.S. Tenancy in Common § 3 (2006). Therefore, our conclusion that the merger doctrine applies to terminate the lease between Ms. Clayton and James is consistent with Alabama law.

The dissent also asserts that, “even if the joint tenancy with a right of survivor-ship somehow could be viewed as a unification of the freehold estate and the leasehold estate in the same person, the doctrine of merger would not apply” based on the rules of equity. 75 So.3d 659. However, as the dissent notes, James did not raise this argument to the trial court and does not raise it on appeal. Thus, we will not reverse the trial court’s judgment based on an argument not presented for its consideration. See Ex parte Wiginton, 743 So.2d 1071, 1072-73 (Ala.1999) (“The appellate courts will sustain the decision of the trial court if it is right for any reason, even one not presented by a party or considered or cited by the trial judge, Morrison v. Franklin, 655 So.2d 964 (Ala.1995), even though the appellate courts will not reverse the trial court on an issue or contention not presented to the trial court for its consideration in making its ruling, Smith v. Equifax Services, Inc., 537 So.2d 463 (Ala.1988)

James’s argument that Camden’s interest in the property is limited to the interest that Ms. Clayton held is correct. However, James’s conclusion that because Ms. Clayton was not entitled to the tonnage royalties likewise bars Camden from the tonnage royalties does not follow. Rather, James and Camden inherited the property as joint tenants. “In a joint tenancy each tenant is seized of some equal share while at the same time each owns the whole.” Porter, 472 So.2d at 634 (citing Nunn, supra). James’s relationship with Ms. Clayton was that of lessor-lessee. However, James’s relationship with Camden is that of joint tenants, which “have a common right to possess and enjoy the property.” Porter, 472 So.2d at 633. Further, our supreme court has held that

“ ‘... [i]t has become a settled rule in this country that a cotenant who has received money from third persons for the use of the common property becomes a trustee for the amount collected for the benefit of his cotenants.... ’ 14 Am.Jur. pp. 99, 100. For money so received, he must account. Henderson v. Stinson, 207 Ala. 365, 92 So. 453 [ (1922) ], 27 A.L.R. page 188.”

Faust v. Faust, 251 Ala. 35, 37, 36 So.2d 232, 233 (1948). Therefore, we affirm the trial court’s judgment that James and Camden are entitled to an equal share of the tonnage royalties.

James also argues that Camden produced no evidence indicating that James had committed waste. However, based on our previous holding, we need not address this argument. See Favorite Market Store v. Waldrop, 924 So.2d 719, 723 (Ala.Civ.App.2005) (stating that this court would pretermit discussion of further issues in light of dispositive nature of another issue).

Conclusion

Based on the foregoing, we affirm the trial court’s judgment.

AFFIRMED.

PITTMAN, J., concurs.

THOMPSON, P. J., concurs in the result, without writing.

MOORE, J., dissents, with writing, which BRYAN, J., joins.

MOORE, Judge,

dissenting.

I respectfully dissent.

In the proceedings below, Camden Clayton, the grandson of Estellene Clayton (“Ms. Clayton”), removed the probate proceedings relating to Ms. Clayton’s estate to the Etowah Circuit Court (“the trial court”). Before the removal, it was established that, in her will, Ms. Clayton had named James Clayton, her son and Camden’s father, as the administrator of her estate and that Ms. Clayton had devised certain real property (“the property”) to James and Camden as joint tenants with the right of survivorship. Upon removal, Camden requested the trial court to resolve the issue whether, based on his status as a joint tenant with the right of survivorship, he had the right to share in the royalties from a mining lease relating to the property. The trial court initially ordered James to pay the royalties to the clerk of the court, but later, after an ore tenus hearing, it entered a judgment awarding Camden one-half of the royalties of the mining lease dating from the death of Ms. Clayton and into the future.

The evidence from the brief hearing conducted by the trial court indicates that, at some point in the late 1990s, James leased a portion of the property from Ms. Clayton. Subsequently, on December 10, 1999, James entered into a limestone and sandstone mining lease with Blount Springs Sand & Gravel Co., Inc. (“Blount Springs”), relating to the property. Thereafter, James received annual and monthly mineral royalties from Blount Springs as specified in the mining lease. James testified that the mineral royalties constituted his sole source of income, so he would daily supervise the mining operations conducted by Blount Springs on the property. James did not share the royalties with Ms. Clayton during her lifetime, and he did not remit any payments to her estate after her death on July 28, 2009. At some point in 2009, before the death of Ms. Clayton, James renewed his lease on the property, and the lease was set to expire at some point in 2019.

The trial court evidently concluded that Camden, by virtue of his inheritance of a joint interest in the property, obtained a right to share equally in the royalties from the mining lease. The main opinion affirms that judgment on the theory that James’s lease terminated upon the death of Ms. Clayton, reasoning as follows:

“Ms. Clayton’s reversionary interest in the fee and James’s tenancy interest vested in James when he and Camden inherited the property from Ms. Clayton as joint tenants. Accordingly, James’s lease was destroyed under the doctrine of merger. See Whigham v. Travelodge Int'l, Inc., 349 So.2d 1078, 1085 (Ala.1977) (citing McMahan v. Jacoway, 105 Ala. 585, 17 So. 39 (1894); Otis v. McMillan & Sons, 70 Ala. 46 (1881); and Martin, Bradley & Co. v. Searcy, 3 Stew. 50, 52 (1830)); see also Welsh v. Phillips, 54 Ala. 309, 316 (1875) (‘The general rule of law is, that when a greater and less, or a legal and equitable estate, meet and coincide in the same person, they are merged, the one drowned in the other.’). Holding otherwise would result in the absurdity our supreme court warned against in Otis, 70 Ala. at 59: ‘There can be no greater absurdity, than to place [a man] in the relation of being his own landlord, and his own tenant, at one and the same time; bound himself to pay, and to receive rent.’ ”

75 So.3d at 653. The main opinion further concludes that, once James’s lease was destroyed, James and Camden, as joint owners of the leased property, were entitled to share in the proceeds of the mining royalties equally. 75 So.3d at 653.

I respectfully disagree. Most of the cases cited in the main opinion involve fact situations in which, by one form of conveyance or another, a lone tenant acquires in his or her individual capacity a fee-simple interest in property that is subject to a lease. The rule of law applicable to that situation is that, when the same person, holds both the lesser leasehold interest and the greater freehold interest, the lease is extinguished. See Whigham v. Travelodge Int'l, Inc., 349 So.2d 1078, 1084 (Ala.1977) (noting that, when lone tenant purchases leased property at a foreclosure sale, his or her new ownership of the freehold estate destroys the lease); McMahan v. Jacoway, 105 Ala. 585, 588, 17 So. 39, 39 (1894) (holding that a sublease merged into the lease when individual sublessee purchased lease from individual sublessor); Otis v. McMillan & Sons, 70 Ala. 46, 49 (1881) (stating the general rule that, when an individual becomes both landlord and tenant, the lease is destroyed by merger); and Welsh v. Phillips, 54 Ala. 309, 311 (1875) (stating that merger doctrine applies when the “same person” holds greater and lesser interest in same property). The fact situation in Martin, Bradley & Co. v. Searcy, 3 Stew. 50 (1830), is slightly different because, in that case, the owner of the fee-simple interest in the property sold the property to his tenants, plural. However, the same result inured. In Martin, Bradley & Co., the court held that, when the transfer of ownership resulted in the tenants owning both the freehold estate and the leasehold estate, the doctrine of merger extinguished the leasehold interest because the same persons cannot hold both interests. 3 Stew, at 52. The holdings in the foregoing cases are consistent with the common law as stated in the current Corpus Juris Secundum, which describes the necessary elements for merger as

“[t]wo or more distinct estates of greater and lesser rank; a valid greater estate; a meeting of the estates in one person or class of persons; coincidence in time of meeting; absence of intervening estates; and a holding of the estates in the same right.”

31 C.J.S. Estates § 156 (2008).

In this case, the same persons have never held and do not hold both the freehold interest and the leasehold interest in the property at issue. Upon Ms. Clayton’s death, pursuant to the terms of her will, her freehold interest in the property fell to James and Camden as joint tenants with rights of survivorship. However, that freehold interest remained subject to the leasehold interest, see Kellum v. Balkum, 93 Ala. 317, 9 So. 463 (1891), and Kelly v. Kelly, 250 Ala. 664, 35 So.2d 686 (1948) (holding that death of lessor does not terminate lease, but passes freehold estate to heirs subject to lease), which was vested solely in James. Hence, the entire basis for the merger doctrine, the coincidence of ownership of the freehold estate and the leasehold estate in the exact same person or persons, does not exist in this case.

In Sisson v. Swift, 243 Ala. 289, 9 So.2d 891 (1942), the court recognized that, despite the merger doctrine, one could act both as a trustee and a beneficiary of a trust when the trust also benefited others. 243 Ala. at 297, 9 So.2d at 898. Sisson apparently recognizes the common-law rule that the doctrine of merger depends upon a complete identity of ownership in both the greater and the lesser estates so that any deviation prevents a merger of estates. Extending the reasoning in Sis-son to the present factual situation, Alabama law should recognize that a merger of estates does not occur when a lone tenant under a lease acquires ownership of the freehold estate as a joint tenant with another.

Although Alabama law has not directly addressed that point, the New Mexico Supreme Court denied application of the merger doctrine in circumstances almost identical to those at issue in this case. In Tri-Bullion Corp. v. American Smelting & Refining Co., 58 N.M. 787, 277 P.2d 293 (1954), American Smelting acquired a lease allowing it to mine certain real property. American Smelting later acquired fee-simple ownership of the same real property as a tenant in common with Tri-Bullion. The New Mexico Supreme Court held that the cotenancy did not extinguish the lease. The court stated:

“In the instant case we are of the opinion and so hold that there was no merger because the same party never became the owner of the larger (fee) and of the smaller (leasehold) estates in this property. We deem this situation similar to the following: A, the owner of a building, leases office space to B, the tenant; B, the tenant, and C, a third party, purchase A’s interest as owner of the building. The doctrine of merger does not apply to kill B’s lease. 51 C.J.S., Landlord and Tenant, § 257, p. 894; Patterson v. United Natural Gas Co., 263 Pa. 21, 105 A. 828 [(1919)]; Vucinich v. Gordon, 51 Cal.App.2d 434, 124 P.2d 868 [ (1942) ].”

Tri-Bullion Corp., 58 N.M. at 794, 277 P.2d at 297. Based on Sisson, and the basic principles of the merger doctrine, it appears that, if our supreme court were addressing this case, it would use the same reasoning and reach the same holding as did the court in Tri-Bullion.

The main opinion points out that the cotenancy at issue in Tri-Bullion differs from the joint tenancy with right of surviv-orship at issue in this case. Although I recognize that distinction, I do not believe it compels a different result. The principle to be derived from Tri-Bullion and Sisson is that merger occurs only when a complete identity of ownership concurs in two estates in the same property. See First Alabama Bank of Tuscaloosa, N.A. v. Webb, 373 So.2d 631, 637 (Ala.1979) (“Sisson described the doctrine of merger in terms of the same person owning both the legal and equitable estates.”). The characterization of the ownership rights may make a difference when the owner is the same, but that factor does not control when the identity of the owner or owners of the two estates differs. The main opinion does not cite a single case in which any court has held that a lease is extinguished upon the lessor’s acquiring the property along with another as a joint tenant with the right of survivorship. It would seem such a holding would invalidate many presently existing business relationships by which property is leased by one joint tenant to or from all joint tenants.

At any rate, even if the joint tenancy with a right of survivorship somehow could be viewed as a unification of the freehold estate and the leasehold estate in the same person, the doctrine of merger would not apply. Our supreme court has long recognized that the common-law rule of merger is highly disfavored and will not be applied rigorously when to do so would be to the disadvantage of the prior owner of one of the estates. Kidd v. Cruse, 200 Ala. 293, 296, 76 So. 59, 62 (1917). In Kidd, the court surveyed the law in other jurisdictions in order to declare Alabama law on the doctrine of merger. The present state of the law is best summarized as follows:

“It was an inflexible rule at common law that a merger always took place when a greater and a lesser estate met in the ownership of the same person without any intermediate estate, but modernly the doctrine of merger is not favored either at law or in equity. Consequently, the courts will not compel a merger of estates where the party in whom the two interests are vested does not intend such a merger to take place, or where it would be inimical to the interest of the party in whom the several estates have united ..., nor will they recognize a claim of merger where to do so would prejudice the rights of innocent third persons. 19 Am.Jur. 589, Estates, § 136; 21 C.J. 1034, Estates, § 234; 31 C.J.S., Estates, § 124.”

Mobley v. Harkins, 14 Wash.2d 276, 281-82, 128 P.2d 289, 291 (1942) (emphasis added). See also IP Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 108-09 (Miss.1998) (“ ‘ “Termination does not, however, always follow the acquisition of the landlord’s title by the tenant. The question whether or not a merger affecting a termination of the lease results depends on what will best serve the interests of justice and the intention of the parties.” ’ ” (quoting Zouboukos v. Costas, 232 Miss. 860, 870, 100 So.2d 781, 785 (1958), quoting in turn 51 C.J.S. Landlord and Tenant § 94, p. 666)).

In this case, James obtained a lease from Ms. Clayton, which allowed him to enter the mining lease that has generated his sole source of income for over 10 years and which he was relying upon to continue to generate income for the next 8 years. If the court applied the merger doctrine mechanically so as to terminate James’s lease, the mining lease would attach to the property and James would be required to share one-half of the mineral royalties with Camden as a joint tenant. See Faust v. Faust, 251 Ala. 35, 37, 36 So.2d 232, 233 (1948). In other words, James would experience a loss of half of his income through no action of his own. Because that result would be inimical to James’s interest, the doctrine of merger cannot be applied.

Because, in the present case, the leasehold estate did not merge into the freehold estate upon the devise of the property to James and Camden as joint tenants, the leasehold estate remains the separate estate of James, as does the mining lease, which was entered into solely between James and the mining company. Moreover, even if the doctrine of merger could be applied, it would be inequitable to do so under the facts of this case. Thus, James, alone, is entitled to the royalty payments unless the trial court had some other valid reason for apportioning those royalties.

Having reviewed the record and the briefs of the parties thoroughly, I do not find any legal or factual justification supporting the trial court’s decision that James and Camden are entitled to equally share in the royalties. I would reverse the trial court’s judgment and remand the case to the trial court with instructions to vacate that portion of the judgment awarding Camden one-half of the past and future royalties from the mining lease.

BRYAN, J., concurs.

      . In his petition, Camden improperly named Goodhope as the mining company to whom James had sublet the mining rights to property; the error was later corrected, and Blount Springs was properly named as the mining company, as explained infra.

      . We also recognize the dissent’s reliance upon Sisson v. Swift, 243 Ala. 289, 9 So.2d 891 (1942), and, although we question the applicability of a trust-law case to the situation presented in this case, we note that our conclusion is consistent with the proposition in Sisson upon which the dissent relies.

      . In his appellee brief, Camden argues other theories for why he should receive a share of the royalties; however, he did not present any of those theories to the trial court and did not notify James of his reliance on those theories. Although ordinarily we can affirm a judgment on any valid legal ground presented in the record, we cannot take that action when to do so would violate the due-process rights of the opposing party. Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003).

      . James did not introduce a copy of the written lease at trial, but he did attach a copy of the written lease to his motion to alter, amend, or vacate. Because the record is unclear as to whether the trial court considered that lease, I do not rely on its contents on appeal. See J.S.M. v. P.J., 902 So.2d 89, 91 n. 2 (Ala.Civ.App.2004) (this court refused to consider an affidavit submitted in support of a valid postjudgment motion when it was unclear whether the trial court had considered that evidence).

      .Early in his testimony, in response to a question regarding whether he was collecting the royalties remitted after the death of Ms. Clayton as the personal representative of her estate, James responded: "Yes, I have, due to my contract with [the mining company].” However, James later clarified that rather ambiguous response by stating that he had retained the royalties on his own behalf and had not remitted any payments to the bank accounts of the estate. The whole of his testimony indicates that James never acknowledged that any part of the royalty payments belonged to the estate; rather, he maintained throughout the proceedings that he was the rightful owner of the royalties unless the court ruled otherwise. See McGough v. G & A, Inc., 999 So.2d 898 (Ala.Civ.App.2007) (requiring court to review the entirety of a witness’s testimony to determine its substantialness). Thus, I reject Camden's contention that James admitted that the estate had an interest in the royalty payments.

      . The main opinion questions my reliance on Sisson because it is a trust case. As illustrated by Sisson, the principles of the doctrine of merger apply equally to coincidental ownership in legal and equitable estates in property. Thus, although this case involves the merger of greater and lesser estates in real property, that distinction does not affect the relevancy of the holding in Sisson on the issue whether Alabama law recognizes merger when the ownership of two estates in the same property varies.

      . I recognize that James has not specifically argued this point. However, I point out the inequity of applying the merger doctrine in order to show that, based on the record before us, the doctrine does not present a valid legal ground for affirming the judgment of the trial court.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Hilda RUFFIN v. GENERAL MOTORS ACCEPTANCE CORPORATION.
    2090814.
    Court of Civil Appeals of Alabama.
    April 29, 2011.
    Rehearing Denied July 15, 2011.

      Samuel Fisher and Toni J. Braxton of Wiggings, Childs, Quinn & Pantazis, LLC, Birmingham, for appellant.
    Robert C. Ward and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery; and Curtis L. Mack and Halima Horton of McGuireWoods LLP, Atlanta, Georgia, for appellee.
   PER CURIAM.

Hilda Ruffin, one of the plaintiffs below, appeals from a summary judgment in favor of General Motors Acceptance Corporation (“GMAC”), the defendant below. We affirm in part, reverse in part, and remand.

Factual Background

Ruffin, who is African-American, began working for GMAC as a level-2 credit clerk in GMAC’s Gadsden office in 1985. In 1986, she was promoted to a level-3 credit clerk. In 1987, she was promoted to a level-4 customer-service representative. In 1994, she moved to GMAC’s Birmingham office. In 1996, she became a level-4 credit administrator in GMAC’s Birmingham office. In 1999, GMAC awarded two level-5 positions in its Birmingham office (“the 1999 level-5 promotions”) to two Caucasian employees, Christa Williamson and Kelly Hopkins.

In 2001, GMAC announced that it was closing its Birmingham office as part of a reorganization, and Ruffin was offered a position in GMAC’s Atlanta office, which she accepted. Ruffin was then “banded” as a level-5 employee in June 2001. Also in 2001, Ruffin applied for a level-6 position in the Atlanta office, which would have constituted a promotion for her if it had been awarded to her (“the 2001 level-6 promotion”); however, that position was awarded to Donna Verling, a Caucasian employee, in August 2001.

On August 24, 2001, Ruffin filed with the Equal Employment Opportunity Commission (“the EEOC”) a charge claiming that GMAC had discriminated against her on the basis of her race. The EEOC investigated her charge and issued a right-to-sue letter on September 18, 2002.

Procedural History

On December 16, 2002, Ruffin and five other African-American employees of GMAC (“the other five plaintiffs”) sued GMAC in the Lowndes Circuit Court. Ruffin claimed that GMAC had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 by discriminating against her on the basis of her race with respect to job-performance evaluations, promotions, and pay. Ruffin alleged that GMAC had discriminated against her with respect to job-performance evaluations by rating her below the actual rating she deserved based on her job performance, which adversely affected her ability to receive promotions. She alleged that GMAC had discriminated against her with respect to promotions by awarding to less qualified Caucasian employees promotions for which Ruffin was qualified. She alleged that GMAC had discriminated against her with respect to pay by paying her less than Caucasian employees who were performing the same job at the same grade level.

In January 2003, GMAC removed the action to the United States District Court for the Middle District of Alabama. In February 2003, that court remanded the action to the Lowndes Circuit Court.

On March 5, 2003, GMAC moved to dismiss the action or, in the alternative, to transfer the action to a different venue. Specifically, GMAC asserted that venue was not proper in the Lowndes Circuit Court under § 6 — 3—7(a), Ala.Code 1975, and, therefore, that the action should be dismissed pursuant to § 6-5-430, Ala.Code 1975, or, in the alternative, should be transferred to the Jefferson Circuit Court pursuant to § 6-3-21.1(a), Ala.Code 1975. On October 20, 2008, the trial court denied GMAC’s March 5, 2003, motion to dismiss or, in the alternative, to transfer.

On August 20, 2004, GMAC again moved to dismiss the action or, in the alternative, to transfer it; however, the trial court denied that motion on December 29, 2004.

On January 27, 2005, GMAC petitioned the Alabama Supreme Court for a writ of mandamus directing the Lowndes Circuit Court to grant GMAC’s motion to dismiss the action or, in the alternative, to transfer it. The supreme court denied the petition without an opinion on July 8, 2005.

On February 20, 2007, GMAC moved the trial court for a summary judgment with respect to the claims of Ruffin and the other five plaintiffs. With respect to Ruffin’s claims, GMAC asserted that it was entitled to a summary judgment because, it said, (1) Ruffin’s § 1981 claims based on job-performance evaluations, promotions, and pay were time-barred by the two-year Alabama statute of limitations, which, GMAC said, applied to Ruffin’s § 1981 claims; (2) Ruffin’s Title VII claim based on the 1999 level-5 promotions was time-barred because, GMAC said, she had not filed her EEOC charge within 180 days after the 1999 level-5 promotions were awarded; (3) Ruffin’s Title VII and § 1981 claims based on the 2001 level-6 promotion had no merit because, GMAC said, she could neither prove that she was qualified for a level-6 promotion when the 2001 level-6 promotion was awarded to Verling nor prove that the legitimate, nondiscriminatory reason offered by GMAC for promoting Verling was a pretext; (4) Ruffin’s Title VII and § 1981 claims based on job-performance evaluations and pay had no merit because, GMAC said, she could not prove that similarly situated non-African-American employees received more favorable job-performance evaluations or higher pay; (5) Ruffin’s Title VII claim based on pay was time-barred insofar as it was based on pay she received more than 180 days before she filed her EEOC charge; (6) Ruffin’s Title VII claim based on pay was proeedurally barred insofar as it was based on pay she received after the EEOC issued the right-to-sue letter; and (7) Ruffin could not prevail on any of her claims because, GMAC said, she could not prove that GMAC purposefully and intentionally discriminated against her because she is an African-American. In support of its summary-judgment motion, GMAC submitted, among other things, an affidavit signed by Phillip Wilson (“the Wilson affidavit”), a retired employee of GMAC who had served as Human Resources Manager for GMAC’s Southeast Region from 2001 through February 1, 2005, and an affidavit signed by Ashley Cink (“the Cink affidavit”), a GMAC employee who had served as Human Resources Manager for GMAC’s Eastern Region, which included GMAC’s Southeast Region, from May 2004 through July 2005.

On June 6, 2007, Ruffin and the other five plaintiffs filed their response in opposition to GMAC’s summary-judgment motion. On November 1, 2007, Ruffin and the other five plaintiffs moved the trial court to strike the Wilson affidavit and the Cink affidavit.

On December 27, 2007, GMAC filed responses to Ruffin and the other five plaintiffs’ motions to strike the Wilson affidavit and the Cink affidavit. On March 81, 2008, Ruffin and the other five plaintiffs filed replies to GMAC’s responses to Ruf-fin and the other five plaintiffs’ motions to strike the Wilson affidavit and the Cink affidavit. On May 6, 2008, Ruffin and the other five plaintiffs supplemented their motion to strike the Cink affidavit. On July 7, 2008, Ruffin and the other five plaintiffs supplemented their motion to strike the Cink affidavit a second time. On September 5, 2008, GMAC responded to the supplements to the motion to strike the Cink affidavit.

After taking the deposition of the expert witness proffered by Ruffin and the other five plaintiffs, GMAC, on May 6, 2009, supplemented its summary-judgment motion to address the testimony of that expert witness.

Following a hearing, the trial court, on September 21, 2009, entered an order (“the September 21 order”) granting GMAC’s summary-judgment motion with respect to Ruffin’s claims but denying it with respect to the claims of the other five plaintiffs. The trial court did not expressly rule on the motions to strike the Wilson affidavit and the Cink affidavit. Moreover, the trial court did not direct that the September 21 order be entered as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Subsequently, the other five plaintiffs stipulated to the dismissal of their claims with prejudice, and, on December 15, 2009, the trial court entered an order (“the December 15 order”) dismissing the claims of the other five plaintiffs with prejudice.

On January 8, 2010, Ruffin filed a Rule 59(e), Ala. R. Civ. P., postjudgment motion challenging the propriety of the trial court’s summary judgment as to her claims. The trial court did not rule on Ruffin’s Rule 59(e) postjudgment motion within 90 days after it was filed; consequently, it was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., on April 8, 2010. On May 18, 2010, Ruffin filed a notice of appeal to the supreme court. The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Jurisdictional Challenge

As a threshold matter, GMAC asserts that this court lacks jurisdiction over Ruffin’s appeal because, GMAC says, Ruf-fin did not timely file her notice of appeal. GMAC first argues that Ruffin did not timely file her notice of appeal because, GMAC says, she did not file it within 42 days after the entry of the September 21 order granting GMAC’s summary-judgment motion with respect to Ruffin’s claims. However,

“[a]n appeal ordinarily lies only from the entry of a final judgment. Ala.Code 1975, § 12-22-2; Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). A judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987). The only exception to this rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Bean, 557 So.2d at 1253.”

Henning v. Henning, 999 So.2d 523, 525 (Ala.Civ.App.2008).

In the case now before us, the September 21 order did not adjudicate the claims of all the parties or the rights and liabilities of all the parties; it adjudicated only the claims of Ruffin. Moreover, the trial court did not direct that the September 21 order be entered as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Consequently, an appeal could not lie from the September 21 order, and Ruffin was not required to file her notice of appeal within 42 days after the entry of the September 21 order. See Henning.

Second, GMAC argues that Ruffin did not timely file her notice of appeal because, GMAC says, she did not file a Rule 59(e), Ala. R. Civ. P., motion “within 30 days in order to toll the time for her to appeal the Circuit Court’s summary judgment ruling, as required by Ala. R. Civ. P. 59(e).” GMAC’s brief at p. 20. Given that Ruffin filed her Rule 59(e) motion on January 8, 2010, which was within 30 days after the entry of the December 15 order, GMAC appears to be arguing that Ruffin did not timely file her Rule 59(e) motion because she did not file it within 30 days after the entry of the September 21 order. However, the supreme court has held that a Rule 59(e) motion may be made only in reference to a final, appealable judgment:

“By its express terms, Rule 59(e) applies only where there is a ‘judgment.’ That term is specifically defined in Ala. R. Civ. P. 54(a), as ‘a decree and any order from which an appeal lies.’ (Emphasis added.) Rule 59 does not apply to interlocutory orders, because such orders remain “within the breast of the court.’ Rheams v. Rheams, 378 So.2d 1125, 1128 (Ala.Civ.App.1979). A ‘Rule 59 motion may be made only in reference to a final judgment or order.’ Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999); see also Anderson v. Deere & Co., 852 F.2d 1244, 1246 (10th Cir.1988); Momar, Inc. v. Schneider, 823 So.2d 701, 704 (Ala.Civ.App.2001) (a Rule 59(e) ‘motion may be taken only from a final judgment’).”

Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala.2003).

Thus, because an appeal could not lie from the September 21 order, see Hen-ning, Rule 59(e) did not require that Ruf-fin file her Rule 59(e) motion within 30 days after the entry of the September 21 order; it required that Ruffin file her Rule 59(e) motion within 30 days after the entry of the December 15 order, which was the final, appealable judgment entered by the trial court. Ruffin did timely file her Rule 59(e) motion within 30 days after the entry of the December 15 order. In pertinent part, Rule 4(a)(3), Ala. R.App. P., provides:

“The filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure (ARCP) shall suspend the running of the time for filing a notice of appeal. In cases where post-judgment motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion. If such post-judgment motion is deemed denied under the provisions of Rule 59.1 of the Alabama Rules of Civil Procedure, then the time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1.”

Ruffin’s timely filing of her Rule 59(e) motion suspended the running of the time for filing her notice of appeal until her motion was denied by operation of law pursuant to Rule 59.1 on April 8, 2010. She timely filed her notice of appeal on May 18, 2010. Accordingly, we find no merit in GMAC’s argument that this court lacks jurisdiction over Ruffin’s appeal.

Venue Challenge

GMAC also asserts that this court should dismiss Ruffin’s appeal because, GMAC says, the Lowndes Circuit Court became an improper venue for Ruffin’s claims upon the entry of the trial court’s December 15 order because, GMAC says, the December 15 order dismissed with prejudice the claims of the only plaintiff who was a resident of Lowndes County. However, this argument has no merit because, “[a]s [the supreme court] has frequently held, proper venue for an action is determined at the commencement of the action.” Ex parte Overstreet, 748 So.2d 194,196 (Ala.1999).

Standard of Review
“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12. ‘[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 Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

Analysis

A. Whether Ruffin’s § 1981 claims based on job-performance evaluations, promotions, and pay are time-barred.

GMAC argued that it was entitled to a summary judgment with respect to all Ruffin’s § 1981 claims because, it said, those claims were barred by Alabama’s two-year statute of limitations. Ruffin argued that GMAC was not entitled to a summary judgment on that ground because, she said, a four-year statute of limitations applied to those claims.

Section 1981 does not contain an express statute of limitations.

“Prior to 1990, in determining the proper statute of limitations, federal courts were to apply the most analogous state statute of limitations to § 1981 claims, which, in this case, was two years under Alabama law. See Goodman v. Lukens Steel Co., 482 U.S. 656, 660-61, 107 S.Ct. 2617, 2620-21, 96 L.Ed.2d 572 (1987), superseded by statute as stated in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004); see also Moore v. Liberty Nat. Life Ins. Co., 267 F.3d 1209, 1219 (11th Cir.2001) (applying Alabama’s two-year statute of limitations for personal-injury torts to § 1981 claim). In 1990, Congress enacted § 1658(a), which created a default four-year limitations period for federal causes of action created after that date. See 28 U.S.C. § 1658. One year later, as part of the Civil Rights Act of 1991, Congress amended § 1981 to include a cause of action for discrimination in the terms and conditions of employment as well as discrimination in the making and enforcement of contracts. See 42 U.S.C. § 1981.
“The Supreme Court subsequently determined in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 1845, 158 L.Ed.2d 645 (2004), that Congress’s 1990 enactment of § 1658 changed the limitations period to four years for some claims under § 1981. See id. at 377-80, 124 S.Ct. at 1842-44. The Supreme Court also explained that, to the extent that the Civil Rights Act of 1991 created new causes of action not previously cognizable under § 1981, such claims are subject to the four-year ‘catch-all’ statute of limitations of § 1658. See id. at 380-83, 124 S.Ct. at 1844-45.”

Price v. M & H Valve Co., (No. 05-15205, April 7, 2006) (11th Cir.2006) (not selected for publication in the Federal Reporter)

In her brief to this court, Ruffin argues that the four-year statute of limitations of 28 U.S.C. § 1658 applies to her § 1981 claim based on the 1999 level-5 promotions. Under Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), superseded by statute as stated in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004), which applied to § 1981 claims before the amendments contained in the Civil Rights Act of 1991, a failure-to-promote claim was actionable under § 1981 if the promotion rose “to the level of an opportunity for a new and distinct relation between the employee and the employer.” Id. at 185.

“In Patterson, the Court sought to distinguish between routine increases in salary or responsibility which are clearly part of an original contract of employment and promotions which signal a new contractual relationship between employee and employer. In determining whether a particular promotion rises to the level of a new and distinct relation between employer and employee, the court must compare the nature of the employee’s current duties, compensation, and benefits [with the] duties, compensation, [and] benefits in the different position in question. As an example of one change in employment position which constitutes a new and distinct relation, the Court cites Hishon v. King and [Spalding], 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). The plaintiff in Hishon was an associate in a law firm who alleged that she was denied partnership status because she is a woman. The Court’s example is instructive. The difference between [the] rights, duties, and compensation of associates and partners in a law firm are significant. While both the associate and the partner are attorneys, the role of the partner is supervisory and carries increased responsibility. It may also involve personal liability for the affairs of the firm. The method of compensation and amount of benefits attendant to an associate position differ from those of a partner. In applying Patterson, the Fourth Circuit has ruled that a promotion from billing clerk to supervisor is the type of promotion which also engenders a new and distinct relation between employee and employer covered by § 1981. Mallory v. Booth Refrigeration Supply Co., Inc., 882 F.2d 908, 911 (4th Cir.1989).”

Harrison v. Associates Corp. of North America, 917 F.2d 195, 198 (5th Cir.1990).

If Ruffin had been awarded either of the 1999 level-5 promotions, she would have been promoted from a level-4 administrative position to a level-5 administrative position. Such a promotion would not have involved a promotion from an administrative, nonsupervisory position to a supervisory position; to the contrary, such a promotion would have merely been a promotion from one administrative, nonsuper-visory position to another administrative, nonsupervisory position that was one level higher. Moreover, there is no evidence in the record indicating that the increases in salary and responsibility that would have been occasioned by such a promotion would have risen to the level of signaling a new relationship between Ruffin and GMAC if she had received the promotion. Accordingly, we conclude that the four-year “catch-all” statute of limitations under § 1658 was applicable to Ruffin’s § 1981 claim based on the 1999 level-5 promotions and, therefore, that claim was not time-barred.

Because Ruffin filed her action within four months after GMAC awarded the 2001 level-6 promotion to Verling, Ruffin’s § 1981 claim based on that promotion is not time-barred regardless of whether the Alabama two-year statute of limitations or the § 1658 four-year statute of limitations applies to that claim.

In her principal brief to this court, Ruffin has not specifically argued that her § 1981 claims based on job-performance evaluations and pay are timely. In Scrushy v. Tucker, 70 So.3d 289, 306-07 (Ala.2011), the supreme court stated:

“ ‘In order to secure a reversal, “the appellant has an affirmative duty of showing error upon the record.” Tucker v. Nichols, 431 So.2d 1263, 1264 (Ala.1983). It is a familiar principle of law:
“ ‘ “When an appellant confronts an issue below that the appellee contends warrants a judgment in its favor and the trial court’s order does not specify a basis for its ruling, the omission of any argument on appeal as to that issue in the appellant’s principal brief constitutes a waiver with respect to the issue.”
‘Fogarty v. Southworth, 953 So.2d 1225, 1232 (Ala.2006) (footnote omitted) (emphasis added). This waiver, namely, the failure of the appellant to discuss in the opening brief an issue on which the trial court might have relied as a basis for its judgment, results in an affirmance of that judgment. Id. That is so, because “this court will not presume such error on the part of the trial court.” Roberson v. C.P. Allen Constr. Co., 50 So.3d 471, 478 (Ala.Civ.App.2010) (emphasis added). See also Young v. Southern Life & Health Ins. Co., 495 So.2d 601 (Ala.1986)....’
“Soutullo v. Mobile County, 58 So.3d 733, 738-39 (Ala.2010).”

Accordingly, because GMAC asserted before the trial court that Ruffin’s § 1981 claims based on job-performance evaluations and pay were time-barred, because the trial court did not specify the basis for its granting GMAC’s summary-judgment motion with respect to those claims, and because Ruffin has not specifically argued in her principal brief to this court that those claims are not time-barred, we affirm the summary judgment in favor of GMAC with respect to those claims. See Scrushy.

B. Whether Ruffin’s Title VII claims based on the 1999 level-5 promotions and pay she received more than 180 days before she filed her charge with the EEOC are time-barred.

“A plaintiff may not sue under Title VII unless she first exhausts administra-five remedies by filing a timely charge of discrimination with the Equal Employment Opportunity Commission (‘EEOC’). See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir.2001). In a non-deferral state such as Alabama, the deadline for filing is 180 days after the alleged discriminatory act. See Ledbetter v. Goodyear Tire and Rubber Co., 421 F.3d 1169, 1178 (11th Cir.2005) (explaining that Alabama is a non-deferral state, such that only unlawful practices occurring within 180 days of the operative EEOC charge can give rise to Title VII liability).”

Carter v. University of South Alabama Children’s & Women’s Hosp., 510 F.Supp.2d 596, 606 (S.D.Ala.2007).

GMAC argued that it was entitled to a summary judgment with respect to Ruffin’s Title VII claim based on the 1999 level-5 promotions because, GMAC said, Ruffin did not file her charge with the EEOC within 180 days after those promotions occurred. Although the trial court did not state its rationale for granting GMAC’s summary-judgment motion, Ruffin, in her principal brief to this court, has not argued that her Title VII claim based on the 1999 level-5 promotions was not time-barred despite her failure to file her charge with the EEOC within 180 days after those promotions. Accordingly, she has waived that issue, and we affirm the summary judgment in favor of GMAC with respect to Ruffin’s Title VII claim based on the 1999 level-5 promotions. See Scrushy.

GMAC also argued that it was entitled to a summary judgment with respect to Ruffin’s Title VII pay claim insofar as it was based on pay she received more than 180 days before she filed her charge with the EEOC on August 24, 2001, because, GMAC said, it was time-barred. Ruffin argues that the trial court erred insofar as it may have granted the summary-judgment motion on the basis of that argument because, Ruffin says, her Title VII pay claim was timely insofar as it was based on pay she received more than 180 days before she filed her charge with the EEOC by virtue of the Lilly Ledbetter Fair Pay Act of 2009 (“the FPA”), Pub.L. No. 111-2, 123 Stat. 5.

In Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007), the United States Supreme Court held that Lilly Ledbetter’s Title VII claim based on pay was time-barred because she did not file an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her and that her employer’s issuance of paychecks that reflected those allegedly discriminatory pay decisions during the 180 days before she filed her EEOC charge did not alter that result:

“The EEOC charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse' effects resulting from the past discrimination....
“... Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure.”

Ledbetter, 550 U.S. at 628-29.

Congress responded to Ledbetter by passing the FPA. Among other things, the FPA amended § 706(e) of the Civil Rights Act of 1964, which is codified as 42 U.S.C. § 2000e-5(e), to add the following:

“(S)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation ..., when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
“(B) In addition to any relief authorized by section 1977A of the Revised Statutes (42 U.S.C. 1981a), liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.”

Pub.L. No. 111-2, § 3, 123 Stat. 5 (emphasis added).

Thus, the FPA has superseded the Supreme Court’s holding in Ledbetter and provides that the issuance of a paycheck reflecting a discriminatory pay decision or practice is itself an unlawful employment practice under Title VII. Moreover, the FPA provides that if the issuance of paychecks reflecting the discriminatory pay decision during the 180 days before the plaintiff filed his or her EEOC charge was “similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge,” the plaintiff can recover “back pay for up to two years preceding the filing of the charge.” Pub.L. No. 111-2, § 3, 123 Stat. 5. Furthermore, the FPA provides that it “take[s] effect as if enacted on May 28, 2007 and applies] to all claims of discrimination in compensation under Title VII ... that are pending on or after that date.” Pub.L. No. 111-2, § 6, 123 Stat. 5. Thus, because Ruffin’s Title VII claim based on pay was pending on May 28, 2007, the FPA applies to her claim. Id.

Accordingly, the FPA provides that Ruffin’s Title VII claim based on pay is not time-barred with respect to pay she received up to two years before she filed her EEOC charge if she can prove (1) that GMAC issued her a paycheck during the 180 days before she filed her EEOC charge that reflected a discriminatory pay decision and (2) that the issuance of that paycheck was “similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.” Pub.L. No. 111-2, § 3, 123 Stat. 5. GMAC did not submit evidence establishing that Ruffin could not prove that she was entitled to recover back pay for up to two years before she filed her EEOC charge. Therefore, we cannot affirm the summary judgment with respect to Ruf-fin’s Title VII pay claim insofar as it is based on pay Ruffin received up to two years before she filed her EEOC charge on the ground that it is time-barred. Moreover, GMAC did not assert that it was entitled to a summary judgment with respect to that portion of Ruffin’s Title VII pay claim on the ground that she could not prove her prima facie case and, therefore, GMAC never shifted to Ruffin the burden to prove her prima facie case with respect to that portion of her Title VII pay claim. Kennedy v. Western Sizzlin Corp., 857 So.2d 71, 78 (Ala.2003). In Kennedy, the supreme court stated:

“ ‘ “[A] party seeking a summary judgment always bears the initial responsibility of informing the [trial] court of the basis of its motion.” ’ Rector v. Better Houses, Inc., 820 So.2d 75, 80 (Ala.2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). When a motion for a summary judgment is based on a failure of the nonmovant’s evidence, the moving party must indicate where the nonmovant’s case suffers an evidentiary failure. Id.”

857 So.2d at 78. Consequently, we reverse the summary judgment with respect to Ruffin’s Title VII pay claim insofar as it is based on paychecks issued to her within two years of her filing her EEOC charge. However, we affirm the summary judgment with respect to Ruffin’s Title VII pay claim insofar as it is based on paychecks issued to her more than two years before she filed her EEOC charge because that portion of her Title VII pay claim is not timely under the FPA.

C. Whether Ruffin’s Title VII pay claim is procedurally barred insofar as it is based on pay she received after the EEOC issued the right-to-sue letter.

GMAC also argued that it was entitled to a summary judgment with respect to Ruffin’s Title VII pay claim insofar as it was based on pay she received after the EEOC issued its right-to-sue letter because, GMAC said, that portion of her Title VII pay claim was procedurally barred because, GMAC said, Ruffin could not prove that it was reasonably related to the charge she filed with the EEOC. Ruf-fin argues that the trial court erred insofar as it granted GMAC’s summary-judgment motion with respect to the portion of Ruf-fin’s Title VII pay claim that was based on pay she received after the EEOC issued the right-to-sue letter because, she says, that portion of her claim is “ ‘like or related to’ the original charge before the EEOC.” Ruffin’s principal brief at p. 58 (quoting Gamble v. Birmingham S. R.R. Co., 514 F.2d 678, 689 (5th Cir.1975)). However, the record on appeal does not contain a copy of her original charge before the EEOC.

“An appellate court does not presume error; the appellant has the affirmative duty of showing error. Appellate review is limited to the record and cannot be altered by statements in briefs. Error asserted on appeal must be affirmatively demonstrated by the record. If the record does not disclose the facts upon which the asserted error is based, the error will not be considered on appeal.”

Greer v. Greer, 624 So.2d 1076, 1077 (Ala.Civ.App.1993) (citations omitted). Accordingly, because Ruffin’s original charge before the EEOC is not in the record, we cannot consider Ruffin’s argument that the portion of her Title VII pay claim based on pay she received after the EEOC issued its right-to-sue letter is “like or related to” her original EEOC charge. Thus, we affirm the trial court’s judgment as to this portion of Ruffin’s Title VII pay claim.

D. Whether Ruffin established a prima facie case with respect to her § 1981 claim based on the 1999 levels promotions.

Title VII and § 1981 “have the same requirements of proof and use the same analytical framework....” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.1998).

“When a plaintiff offers circumstantial evidence to prove a Title VII claim, we use the analytical framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, the plaintiff must establish a prima facie case of discrimination. The establishment of a prima facie case creates a presumption of discrimination. The employer must then offer legitimate, nondiscriminatory reasons for the employment action to rebut the presumption. If the employer successfully rebuts the presumption, the burden shifts back to the plaintiff to discredit the proffered nondiscriminatory reasons by showing that they are pretextual. Id., at 802-04, 93 S.Ct. at 1824-25.”

Standard, 161 F.3d at 1331.

In order to establish a prima facie case of discriminatory failure to promote,

“the plaintiff must demonstrate only that: (i) he or she belonged to a protected class; (ii) he or she was qualified for and applied for a position that the employer was seeking to fill; (iii) despite qualifications, he or she was rejected; and (iv) the position was filled with an individual outside the protected class. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).”

Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir.2005).

In this case, GMAC did not assert as a ground of its summary-judgment motion that Ruffin could not prove an essential element of her prima facie case with respect to her § 1981 claim based on the 1999 level-5 promotions. Therefore, GMAC never shifted to Ruffin the burden of producing substantial evidence of any of the elements of that prima facie case. See Kennedy, supra. Therefore, we reverse the summary judgment with respect to Ruffin’s § 1981 claim based on the 1999 level-5 promotions.

E. Whether Ruffin established a prima facie case with respect to her § 1981 and Title VII claims based on the 2001 leveK6 promotion and, if so, whether GMAC met its burden of offering a legitimate, nondiscriminatory reason for awarding that promotion to Verling.

GMAC argued that it was entitled to a summary judgment with respect to Ruffin’s § 1981 and Title VII claims based on the 2001 level-6 promotion on the grounds that Ruffin could neither prove that she was qualified for a level-6 promotion when the 2001 level-6 promotion was awarded to Verling nor prove that the legitimate, nondiscriminatory reason offered by GMAC for promoting Verling was a pretext. Ruffin argues that the trial court erred in granting GMAC’s summary-judgment motion with respect to her Title VII and § 1981 claims based on the 2001 level-6 promotion because, she says, she did make a prima facie showing that she was qualified for that promotion when it was awarded to Verling and GMAC failed to meet its burden of offering a legitimate, nondiscriminatory reason for awarding that promotion to Verling.

GMAC argued that Ruffin did not make a prima facie showing that she was qualified for the 2001 level-6 promotion because, GMAC said, (1) Ruffin was a level-4 employee when that level-6 position was awarded to Verling and (2) Ruffin admitted in her deposition that a GMAC employee would have to be at least a level-5 employee in order to qualify for a promotion to a level-6 position.

However, the Wilson affidavit submitted by GMAC states that, “[i]n June 2001, Plaintiff Ruffin was re-banded from a level-four to a level-five employee.” It is undisputed that the 2001 level-6 promotion was awarded to Verling in August 2001. In reviewing a summary judgment, “we must view all the evidence in a light most favorable to the nonmovant and we must entertain all reasonable inferences from the evidence in favor of the nonmovant,” First Fin. Ins. Co. v. Tillery, 626 So.2d 1252, 1254 (Ala.1993), which, in this case, is Ruffin. Accordingly, based on the Wilson affidavit, we conclude that a genuine issue of material fact exists regarding whether Ruffin was re-banded as a level-5 employee before the 2001 level-6 promotion was awarded to Verling and, therefore, that a genuine issue of material fact exists regarding whether Ruffin made a prima fa-cie showing that she was qualified for that promotion. Therefore, the trial court could not have properly granted GMAC’s summary-judgment motion on the basis of GMAC’s argument that Ruffin was not qualified for the 2001 level-6 promotion because she was still a level-4 employee when that promotion was awarded to Ver-ling. See Standard, 161 F.3d at 1331.

Thus, we must determine whether a genuine issue of material fact exists regarding whether GMAC had a legitimate, nondiscriminatory reason for awarding the 2001 level-6 promotion to Verling. Id. GMAC designated Wilson as its Rule 30(b)(6), Ala. R. Civ. P., representative to give deposition testimony regarding, among other things, GMAC’s “employment decisions relevant to this lawsuit....” During the 30(b)(6) deposition, Wilson gave the following testimony regarding GMAC’s awarding the 2001 level-6 promotion to Verling instead of Ruffin:

“Q. Does the company have a reason for denying Hilda Ruffin the Level 6 supervisor position in Atlanta?
“A. I don’t know.
“Q. Does the company have a reason for denying Hilda Ruffin the Level 6 supervisory position that was given to Donna Verling?
“A. I don’t know.”

In the Wilson affidavit, Wilson attested:

“In June 2001, Plaintiff Ruffin was re-banded from a level-four to a level-five employee. Donna Verling, by contrast, had been a level-six employee since 1994. Additionally, as a level-six employee, Donna Verling had rated ‘superi- or’ on performance evaluations since at least 1996. In August 2001, Donna Ver-ling moved from a level-six position in Orlando, Florida to a level-six position in the Atlanta administration center. A copy of Plaintiff Ruffin’s employment history and Donna Verling’s employment history is Exhibit K hereto.
“In choosing among candidates to fill available positions, GMAC chose the most qualified candidates. Although the ‘qualification’ criteria varied by position, GMAC consistently chose the most qualified candidates. Race was not a factor in promotion decisions or any other employment decisions.”

The Wilson affidavit offered no explanation for the change in Wilson’s testimony since his deposition, and Ruffin argues that the trial court erred in failing to grant her motion to strike the Wilson affidavit based on the absence of such an explanation. However, we need not reach that issue because, even- if the trial court did not err in failing to strike the portions of the Wilson affidavit that constitute unexplained changes in Wilson’s deposition testimony, those unexplained changes create a jury question with respect to his credibility. “ ‘It goes without saying that “ ‘ “a court may not determine the credibility of witnesses on a motion for summary judgment.” ’ ” ’ Dixon v. Board of Water & Sewer Comm’rs of the City of Mobile, 865 So.2d 1161, 1166 n. 2 (Ala.2008).” Davis v. Sterne, Agee & Leach, Inc., 965 So.2d 1076, 1089 (Ala.2007). Thus, a jury question exists regarding whether GMAC had a legitimate, nondiscriminatory reason for awarding the 2001 level-6 promotion to Verling instead of Ruffin.

Because jury questions exist with respect to both the issue whether Ruffin was qualified for the 2001 level-6 promotion and the issue whether GMAC had a legitimate, nondiscriminatory reason for awarding that promotion to Verling, we reverse the summary judgment with respect to Ruffin’s Title VII and § 1981 claims based on the 2001 level-6 promotion awarded to Verling.

F. Whether Ruffin established a prima facie case with respect to her Title VII pay claim based on pay she received between the 180th day before she filed her charge with the EEOC and the date the EEOC issued the right-to-sue letter and, if so, whether GMAC offered evidence of a legitimate, nondiscriminatory reason for paying Ruffin less than similarly situated non-African-American employees.

GMAC argued that it was entitled to a summary judgment with respect to Ruffin’s Title VII pay claim insofar as it was based on pay she received between the 180th day before she filed her charge with the EEOC and the date the EEOC issued the right-to-sue letter because, GMAC said, Ruffin could not prove that similarly situated non-African-American employees received higher pay than she did and she could not prove that GMAC purposefully and intentionally discriminated against her with respect to pay because she is an African-American. Ruffin argues that the trial court erred insofar as it granted GMAC’s summary-judgment motion with respect to that portion of her Title VII pay claim because, she says, she produced evidence establishing a prima fa-cie case of discrimination with respect to that portion of her Title VII pay claim by introducing evidence indicating that six similarly situated non-African-American employees, Jan Wood, Lisa Daniel, Sandy Dorrill, Phyllis Waldrep, Pamela Lord, and Joy Ryan, were paid more than Ruffin and GMAC failed to offer any evidence of a legitimate, nondiscriminatory reason for paying those six non-African-American employees more than it paid her.

A plaintiff establishes a prima fa-cie case of a Title VII violation based on a disparity in wages by showing that she occupies a job similar to that of higher paid employees who are outside the protected class. See Passmore v. Kindercare Learning Centers, 979 F.Supp. 1413, 1422 (M.D.Ala.1997). Ruffin offered evidence indicating that, during the period beginning on the 180th day before she filed her charge with the EEOC and ending in June 2001 when she was rebanded a level-5 employee, there were six non-African-American level-4 employees, Wood, Daniel, Dorrill, Waldrep, Lord, and Ryan, who performed jobs that were similar to Ruf-fin’s job and received higher pay than Ruf-fin. Accordingly, we conclude that Ruffin established a prima facie case of discrimination with respect to pay during the period beginning on the 180th day before she filed her EEOC charge and ending with her rebanding as a level-5 employee in June 2001. See Passmore.

Thus, the burden shifted to GMAC to produce evidence indicating that it had a legitimate, nondiscriminatory reason for paying the six non-African-American employees cited by Ruffin more than it paid Ruffin. Standard, 161 F.3d at 1331. As GMAC’s Rule 30(b)(6) representative, Wilson testified in his deposition as follows:

“Q. ... During the period between 1999 and 2001, do you know whether Jan Wood made more money than Hilda Ruffin?
“A. Don’t know.
“Q. Assuming that she did, does the company have a reason why Jan Wood made more money than Hilda Ruffin?
“A. Don’t know.
“Q. Do you know Lisa Daniel? Have you ever heard of that name?
“A. Yes.
“Q. Do you know whether she made more money than Hilda Ruffin?
“A. Don’t know.
“Q. Assuming that she did, does the company have a reason for why Lisa Daniel made more money than Hilda Ruffin during that period from '99 to 2001?
“A. Don’t know.
“Q. Do you know Sandy Dorrill?
“A. I’ve seen that name.
“Q. D-o-r-r-i-1-1.
“A. I’ve seen the name.
“Q. Do you know how much money Sandy Dorrill made during that period from '99 to 2001?
“A. No, I don’t.
“Q. Assuming that she made more money than Hilda Ruffin, does the company have a reason why Sandy Dorrill made more money than Hilda Ruffin during that period of time?
“A. No, I don’t.
“Q. Phyllis Waldr[e]p, do you know Phyllis Waldr[e]p?
“A. I’ve also seen that name.
“Q. Do you know how much money she made in comparison to Hilda Ruffin during that period of time, '99 to 2001?
“A. No, I don’t.
“Q. Assuming that she made more than Hilda Ruffin, does the company have a reason why Hilda Ruffin was paid less than Phyllis Waldr[e]p during that period of time?
“A. No, I don’t.
“Q. Do you know Joy Ryan?
“A. I’m not familiar with that name.
“Q. Do you know how much she made during that period from '99 through 2001?
“A. No.
“Q. Assuming that she made each year more than Hilda Ruffin, does the company have a reason why Joy Ryan made more money than Hilda Ruffin during that period of time?
“A. No.”

However, in the Wilson affidavit, Wilson attested:

“Pursuant to its ‘pay for performance’ philosophy, GMAC made decisions regarding pay in accordance with employees’ performance. Under GMAC’s rating system, employee performance is rated on the following descending scale: outstanding, superior, highly effective, good competent, needs slight improvement and needs much improvement.”

The Wilson affidavit offered no explanation for the change in Wilson’s testimony since his deposition. Ruffin argues that the trial court erred in failing to strike the Wilson affidavit based on the absence of such an explanation. However, we need not reach that issue because, even if the trial court did not err in failing to strike the portions of the Wilson affidavit that constitute unexplained changes in his deposition testimony, those unexplained changes create a jury question with respect to his credibility. Thus, a jury question exists regarding whether GMAC had a legitimate, nondiscriminatory reason for paying Wood, Daniel, Dorrill, Waldrep, and Ryan more than it paid Ruffin. See Davis. Therefore, we reverse the summary judgment in favor of GMAC with respect to Ruffin’s Title VII pay claim based on pay she received beginning on the 180th day before she filed her charge with the EEOC and ending when she was rebanded as a level-5 employee in June 2001.

G. Whether Ruffin established a prima facie case with respect to her Title VII claim based on job-performance evaluations.

GMAC asserted that it was entitled to a summary judgment with respect to Ruffin’s Title VII claim based on job-performance evaluations because, GMAC said, she could not prove that similarly situated non-African-American employees received more favorable job-performance evaluations than she did and she could not prove that GMAC purposefully and intentionally discriminated against her with respect to job-performance evaluations because she is an African-American.

An employee can establish a pri-ma facie case of discrimination based on job-performance evaluations by showing that “(1) [she] belongs to a protected class; (2) [she] was qualified to do the job; (3) [she] was subjected to adverse employment action; and (4) [her] employer treated similarly situated employees outside [her] class more favorably.” Braswell v. Allen, 586 F.Supp.2d 1297, 1305 (M.D.Ala.2008). The United States Court of Appeals for the Eleventh Circuit has held “that an evaluation that directly disentitles an employee to a raise of any significance is an adverse employment action under Title VII,” Gillis v. Georgia Dep’t of Corr., 400 F.3d 883, 888 (11th Cir.2005), for purposes of establishing a prima facie case.

Ruffin testified that, in 1997, she received a job-performance evaluation of “highly effective” instead of “superior”; that she disagreed with that evaluation; and that she considered it discriminatory. However, Ruffin testified that she was satisfied with her job-performance evaluations in 1998, 1999, 2000, and 2001. Ruffin did not produce any evidence establishing that her 1997 evaluation directly disen-titled her to a raise of any significance or a promotion. Accordingly, we conclude that Ruffin failed to establish that her 1997 evaluation was an adverse employment action under Title VII and, therefore, failed to establish a prima facie case of discrimination with respect to job evaluations under Title VII. Consequently, we affirm the summary judgment with respect to her Title VII claim based on job-performance evaluations.

H. Whether the trial court erred in granting GMAC’s summary-judgment motion with respect to Ruffin’s claims while denying the motion with respect to the claims of the other five plaintiffs.

Finally, Ruffin argues that the trial court erred in granting GMAC’s summary-judgment motion with respect to her claims because, she says, the trial court denied the summary-judgment motion with respect to identical claims asserted by some of the other five plaintiffs. However, Ruffin has not cited any legal authority in support of that argument.

“Rule 28(a)(10), Ala. R.App. P., provides that the appellant’s brief shall contain ‘[a]n argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.’ It is well settled that ‘ “[wjhere 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)).”

Mantiply v. Mantiply, 951 So.2d 638, 653 (Ala.2006). Therefore, we decline to consider Ruffin’s argument regarding the denial of the summary-judgment motion with respect to the claims of the other five plaintiffs.

Conclusion

In summary, we reverse the summary judgment in favor of GMAC with respect to Ruffin’s § 1981 claim based on the 1999 level-5 promotions, her Title VII and § 1981 claims based on the 2001 level-6 promotion, and her Title VII pay claim based on paychecks issued to her up to two years before she filed her EEOC charge and paychecks issued to her during the period beginning with the 180th day before she filed her EEOC charge and ending when she was rebanded to a level-5 employee in June 2001, and we remand the cause for further proceedings consistent with this opinion. In all other respects, we affirm the summary judgment in favor of GMAC.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

All the judges concur.

      .When asked in her deposition what "banding” means, Ruffin testified that "[t]hat means that everyone in Atlanta already were Level 5s, and they had to bring the Birmingham employees up to what other employees were already considered.”

      . The record does not contain a copy of Ruf-fin's EEOC charge.

      . Because the other five plaintiffs are not parties to this appeal, we do not discuss the specifics of their claims.

      . 42 U.S.C. § 2000e-2(a)(l) provides:
      "It shall be an unlawful employment practice for an employer—
      "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

      . 42 U.S.C. § 1981(a) provides:
      "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every land, and to no other.” Section 42 U.S.C.1981(b) provides:
      "For purposes of this section, the term 'make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”

      . Section 6-3-7(a) provides:
      "(a) All civil actions against corporations may be brought in any of the following counties:
      "(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the action is situated; or
      “(2) In the county of the corporation's principal office in this state; or
      "(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiff’s residence; or
      "(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action.”

      .Section 6-5-430 provides:
      "Whenever, either by common law or the statutes of another state or of the United States, a claim, either upon contract or in tort has arisen outside this state against any person or corporation, such claim may be enforceable in the courts of this state in any county in which jurisdiction of the defendant can be legally obtained in the same manner in which jurisdiction could have been obtained if the claim had arisen in this state; provided, however, the courts of this state shall apply the doctrine of forum non conveniens in determining whether to accept or decline to take jurisdiction of an action based upon such claim originating outside this state; and provided further that, if upon motion of any defendant it is shown that there exists a more appropriate forum outside this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interests of justice, the court must dismiss the action without prejudice. Such dismissal may be conditioned upon the defendant or defendants filing with the court a consent (i) to submit to jurisdiction in the identified forum, or (ii) to waive any defense based upon a statute of limitations if an action on the same cause of action is commenced in the identified forum within 60 days of the dismissal.”

      . In pertinent part, § 6-3-21.1 provides:
      “(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

      . In pertinent part, Section 2 of the FPA provides:
      "(I) The Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades. The Ledbetter decision undermines those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.
      "(2) The limitation imposed by the Court on the filing of discriminatory compensation claims ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended.”
      Pub.L. No. 111-2, § 2, 123 Stat. 5.

      . Wilson was not questioned regarding Pamela Lord.

      . GMAC did not assert that Ruffin's Title VII claim based on job-performance evaluations was time-barred or procedural!/ barred.