author: MOORE, Judge.

text:
    William Samuel COUSINS v. Patricia McNEEL and George Houston.
    2110039.
    Court of Civil Appeals of Alabama.
    May 4, 2012.

      Regina B. Edwards, Wetumpka; and Brandon C. Stone, Millbrook, for appellant.
    Alan T. Hargrove, Jr., R. Mac Freeman, Jr., James R. Dickens, Jr., and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee Patricia McNeel.
    Jonathan K. Vickers, Birmingham, for appellee George Houston.
   MOORE, Judge.

William Samuel Cousins appeals from a judgment entered by the Autauga Circuit Court (“the trial court”) in favor of Patricia McNeel, declaring that McNeel is the owner of certain disputed property, awarding McNeel damages for Cousins’s cutting of timber from the disputed property, and establishing the boundary line between the property owned by McNeel and that owned by Cousins, and in favor of George Houston, from whom Cousins had acquired his property, on Cousins’s third-party claim against Houston alleging breach of a warranty deed. We affirm in part and reverse in part.

Procedural Background

■ In February 2007, McNeel sued Cousins, seeking a judgment declaring the boundary line between their adjacent properties. She also asserted claims, pursuant to Ala.Code 1975, § 35-14-2 and § 9-13-6(2), based on Cousins’s alleged cutting and removal of timber from the disputed property, and common-law claims of trespass, negligence, and wantonness; she sought to recover the value of the timber cut and other damages. Cousins denied McNeel’s allegations, asserting that he was the record owner of the disputed property or, alternatively, that he had acquired title to the disputed property through the doctrines of prescriptive or statutory adverse possession. Cousins also asserted a third-party claim against George Houston alleging breach of the warranty deed by which Houston had conveyed property to Cousins in November 2004.

Beginning on April 27, 2011, the trial court conducted a two-day bench trial; ore tenus evidence was presented at that trial. On May 11, 2011, the trial court entered its judgment, stating, in pertinent part:

“The Plaintiff, [McNeel], having pled her cause of action and provided testimony on the following claims, to wit: Trespass by cutting trees, Declaratory Judgment as to land line, Statutory action for cutting of trees, Common law action for recovery for cutting trees, Statutory action for converting cut timber and for Negligence/Wantonness. Upon hearing the testimony, the Court considers these claims as well as the Third Party Complaint on the warranty in the deed, this Court finds as follows:
“1. That the true, legal and actual east boundary line between ... [the property of MeNeel] and west boundary line of ... [the property of Cousins] is as follows:
“In the SE Quarter of Section I, Township 17, Range 13
“Commencing at the Southeast corner of Section 4, Township 17, Range 13, Autauga County, Alabama, thence west along the South line of said Section 4, 361.5 feet to the point of beginning; thence North 361.5 feet, thence East to the east line of said Section 4, thence North along the east line of said Section 4 to the Northeast corner of the Southeast Quarter of said Section 4.
“In the NE Quarter, Section 9, Township 17, Range 13
“Commencing in Independence Road 24.32 chains South from the Northwest corner of section 10, Township 17, Range 13, Autauga County, Alabama; thence North 24.32 chains, thence West 7.26 chains to the point of beginning, thence South 20 degrees West 22.80 chains, thence South 15 degrees West 7.50 chains to a point on Independence Road.
“2. Court finds that ... [Cousins] cut timber on ... [McNeel’s] property after notice that there was a dispute with his action of cutting, trespassed upon her land and wantonly damaged the property of [MeNeel] .... [T]his Court finds in favor of ... [MeNeel] and against ... [Cousins] on wantonness, double damage for statutory damage and for the lease loss of revenue and assess her damage at $41,050.00 plus cost of Court.
“3. Court finds no indication, proof or inference that ... Cousins nor ... Houston ever did any act of possession on the disputed property until Cousins trespassed after 2004. Therefore the defense of adverse possession does not apply.
“4. Defendant Cousins is directed to immediately and not after 60 days, remove all markings on the ground, trees, fencing, wire, post, tape and pins on or along any of the disputed area other tha[n] the actual, true, legal line established by this Order.
“5. Court finds that ... Cousins got exactly what he bargained for in the property located east of the line established herein. Therefore, there is no[ ] contribution from Houston to Cousins.”

On June 10, 2011, Cousins moved the trial court to alter, amend, or vacate its judgment. In his motion, Cousins asserted, among other things, that it was unclear from the language of the May 11, 2011, judgment whether the trial court had ruled on Cousins’s breach-of-warranty-deed claim against Houston, that the legal descriptions contained in the trial court’s judgment were unsubstantiated and unsupported by any evidence before the trial court, and that MeNeel was not entitled to damages for the cutting of timber from the disputed property. On August 19, 2011, the trial court denied that motion. Cousins timely filed his notice of appeal.

Evidentiary Background

The evidence presented to the trial court established the following pertinent facts. MeNeel owns property in Autauga County, which her now-deceased husband, Joe MeNeel, Jr., had conveyed to her in 2000; McNeel’s husband had inherited that property in the 1970s from his aunt, Stella Underwood. The property had been in Underwood’s family for many years. We refer to this property as “the McNeel property.” It was undisputed that, at the time of the trial, a creek ran near the eastern border of the McNeel property and that a fence was located to the east of the creek, up a hill and some distance away from the creek. Until 2004, Houston owned property lying to the east of and adjacent to the McNeel property. Houston had inherited his property in 1978 from a family member who had owned that property for many years.

In November 2004, Cousins purchased Houston’s property for $500,000. The creek and the fence referenced above, which lied at or near the eastern boundary of the McNeel property, was located at or near the western boundary of Cousins’s property. Whether the boundary line between the two properties was located at the creek or at the fence is at the center of this dispute. The property lying between the creek and the fence is hereinafter referred to as “the disputed property”; according to trial testimony, the disputed property totaled approximately 30 acres.

The following language was included in Cousins’s purchase agreement:

“Seller/s agree to sell and convey to Purchaser/s and the Purchaser/s agree to purchase from Seller/s upon the following terms and conditions, the following described real property, in its AS IS condition: Approximately 250 acres and Residence, Township 17 North, Range 13 East, Sections 3, 4, 9, and 10 in Mulberry Community of Autauga County. Actual acreage must be verified by survey.”

A copy of the deed by which Houston had obtained title to the property was attached to the purchase agreement. Houston’s real-estate agent, Mike Vaughn, arranged for surveyor Ronald Burke to perform the required survey. A copy of correspondence sent by Vaughn to Burke, by facsimile transmission, was introduced into evidence; in that correspondence, Vaughn indicated that, although the deed by which Houston had acquired the property indicated that Houston’s property consisted of 231 acres, Houston had indicated that he believed his property totaled approximately 250 acres. Vaughn also indicated that, according to Houston, the “creek is the line all the way up the west boundary ... there are also a lot of cattle cross fences that do not follow the actual property lines.”

Burke testified that, in preparing the survey, he had consulted records in the county tax assessor’s office, which had indicated that Houston owned approximately 270 acres and that the creek served as the western boundary of Houston’s property. Burke and his crew then located the creek and the pertinent section corners. Using those identifiers, Burke’s survey indicated that Houston’s property totaled 264 acres.

Burke testified that
“[t]he [Houston] deed is vague and not very good to start with, which we run into a lot. A lot of times you have to take a deed and understand what is the intent of the deed because basically they don’t make any sense. It said something about a fence. And in the process of the survey I saw the fence at the top of the hill where the fields met the woods. I asked about the fence.... I was told it was just a fence to keep the cattle from getting to the bottom land.... Mike Vaughn was the only person I ever talked to. And so I didn’t locate the fence because they told me it was just a fence to keep the cattle out of that bottom land that you can’t farm anyway. It’s just like a ravine.... And so as soon as the crew got there, the tax map indicated the fence was the line.... And I did call the tax assessor’s office and ask them, that line does represent the creek, and they said it does. And so I told the survey crew to start locating the creek because it was going to take a while to locate that creek. So that’s the first thing we did was locate that creek. The rest of the lines were just GLO forty lines. So that’s why we went to the creek. I didn’t know if there was a fence down there by that creek at one time and that was the fence that everybody was talking about. And then there was a — something about three acres in the corner of the forty which would be out in the middle of that field which didn’t make any sense. And that’s why I went to the creek.”

Burke testified that “nothing was ever said to me ever that the creek is maybe not the line. No one ever said that.” Burke admitted that, in surveying Houston’s property, he never reviewed the McNeel deed and never spoke with Houston or McNeel about the boundary line because he believed that the creek was the proper boundary line.

Burke admitted that the legal description of Houston’s property as stated in his survey did not match the legal description of the property contained in Houston’s deed. Burke testified that he did not think Houston’s property had been surveyed previously. Burke also admitted that just because he had been asked to survey a parcel of property did not indicate that the parcel was owned by the requesting party. The closing attorney, Regina Edwards, relied on the description of the property contained in Burke’s survey, rather than the description of property contained in Houston’s deed, when preparing the warranty deed by which Houston conveyed his property to Cousins in November 2004.

In May 2005, McNeel’s son, Joe McNeel III (“Joe”), learned that Cousins was claiming ownership of the disputed property; Joe informed Cousins that McNeel owned the disputed property. Cousins referred Joe to Burke, and, according to Joe, Burke indicated that he had surveyed “to the creek” as he had been requested to do. When the dispute could not be resolved, McNeel instituted this action in February 2007.

Joe testified that McNeel’s family had always recognized the fence as the eastern boundary of their property. Joe’s testimony on that' point was supported by McNeel, who testified that, beginning in 1958, she had regularly visited the property, including the disputed property; by Fletcher Majors, who had marketed timber from the McNeel property, including the disputed property, in 1986; and by Robert (Bobby) H. Shackelford, Jr., who had leased the McNeel property, including the disputed property, since the 1960s, when Stella Underwood owned it, and who had continued to lease the McNeel property after the McNeels acquired it. According to McNeel, Shackelford’s lease included all portions of the McNeel property, including the disputed property.

Joe testified that, in 2007, he noticed that timber had been cut from an area of the disputed property. He testified that, in his opinion, the cut had been recent; he based his opinion on the appearance of the stumps and the sap visible on those stumps. He also testified that, in 2008, he noticed that timber in another area of the disputed property had been cut. According to Joe, the cut area he observed in 2008 had not been cut in 2007. Based on Joe’s training and experience as a forester, his experience in the timber industry, and his knowledge of what had been planted in the areas that had been cut, the trial court allowed him to testify as an expert as to the value of the timber that had been cut from the disputed property. Based on his experience and knowledge, Joe estimated that the value of the timber cut from the disputed property in 2007 and 2008 totaled between $10,000 to $15,000.

McNeel testified that, because of the boundary-line dispute, she had felt it necessary to reduce the amount she was charging Shackelford, her farming and hunting lessee, because she had asked him not to use the disputed property until the boundary-line issue was resolved. She testified that, from 2005 until the time of the trial, she had lost $1,050 in rental income as a result of the boundary-line dispute.

Thomas Edmunson, Jr., who had worked as a timber buyer for 20 years, was accepted as an expert witness by the trial court. Edmunson testified that, at Cousins’s request, he had cut timber from Cousins’s property in 2005 and again in 2007. He indicated that the plan in 2005 had been to thin the timber so that the trees would be free to grow. He disagreed that the value of the cut timber, which he referred to as “the value of the stumpage,” had been $12,000 to $15,000. He testified that he did not believe the value would be that high, but, because of the length of time that had passed, he could not place a value on the trees that had been cut.

Edmunson testified that he. had been told “both times” not to cross the creek and that he had not done so. In response to an inquiry by the trial court during his direct examination by Cousins’s counsel, Edmunson testified: “[I]f the creek is not the line, that’s what we need to get established. That’s what I was told not to cross. I haven’t crossed the creek.” On cross-examination by counsel for McNeel, Edmunson testified:

“Q: Basically you’re saying you went around in this area [indicating] and cut in 2005 and then cut on the north section in 2007?
“A: Uh-huh.
“Q: Okay. Other than that, you can’t really recall anything else?
“A: I don’t think it would be no twelve thousand dollars.
“Q: On the south section?
“A: On any of it because we wasn’t clear cutting and we was just picking through it, you know. Eleven, twelve hundred dollars, something like that. It wasn’t a whole lot.
“Q: Okay. Last question. Do you think it was August 2007 that you cut?
“A: ... I feel like it was August or September.”

Cousins testified that, when he became interested in purchasing his property, he first spoke with Vaughn, Houston’s realtor, and then met with Houston. Cousins testified that because Houston had been unsure of the boundary line on the east side of his property, Cousins had decided to get a survey. Cousins, however, also testified that Houston had represented to him and to two of Cousins’s employees who were also present that the creek served as the western boundary of the property. According to Cousins, before he purchased the property, Houston had told him that, at one time, a fence had been located in the creek but that, at some point, the creek had flooded and the fence had subsequently been moved up the hill, where it stood at that time. Cousins testified that he had been unaware that Houston’s deed indicated that Houston owned only 231 acres; according to Cousins, he had believed that Houston had conveyed 250 acres to him for the stated price of $500,000.

Cousins testified that he first learned of the boundary-line dispute in May 2005. He testified that, by that time, he had already caused timber to be cut from the disputed property and from the remaining portion of his 350-acre tract. Cousins denied, however, that he had instructed Edmunson or anyone else to cut timber from the disputed property after learning of the boundary dispute. He also denied that “his timber crew” had cut timber from the disputed property in 2007. Cousins testified that he had had timber cut from the disputed property in February or March 2005 but that, in 2007, he had instructed Edmunson to cut timber from the east side of his property, not the west side where the disputed boundary line was located. Cousins testified that Edmunson was simply confused when he testified that he had cut timber from the disputed property in 2007.

Like Edmunson, Cousins disagreed with Joe’s opinion as to the value of the timber cut from the disputed property. Cousins testified that, in his opinion, the timber cut from the disputed property in 2005 had been valued at a total of $1,517.70. As noted earlier, he denied that any timber had been cut from the disputed property after 2005.

Cousins also testified to the damages he claimed to have suffered as a result of Houston’s breach of the warranty deed. Cousins testified that, based on Burke’s survey and the warranty deed given to him by Houston, he had purchased 264 acres for $500,000. Thus, Cousins testified, he had paid approximately $1,893.94 per acre. Cousins testified that, if he lost the use of the 30 acres of the disputed property, he would lose their value — $56,818.18 ($1,893.94 x 30 acres) — which was part of the purchase price he had paid to Houston.

Cousins also testified that he had incurred $25,000 in defending his title to the disputed property. He testified that, had he known there was a dispute as to the boundary line separating his property from the McNeel property in Township 17 North, Range 13 East, Section 4 (“section 4”) and in Township 17 North, Range 13 East, Section 9 (“section 9”), the sections in which the disputed property lies, he would not have cut timber from the disputed property in 2005.

Houston testified that he had inherited the property he sold to Cousins from his uncle in the 1970s. When asked if he had ever had a dispute with the Underwoods or the McNeels regarding the location of the boundary line, Houston indicated that he had not, that he had not known the location of the boundary line, and that he had never really cared.

Houston testified that, during his ownership of the property, the taxes had doubled in one year and that he had noticed that, although his deed had indicated that his property totaled 231 acres, his tax-assessment notice had indicated that he was being assessed taxes on 250 acres. According to Houston, he unsuccessfully disputed that assessment, so he had continued to pay property taxes on 250 acres. Houston testified that, in 2002 or 2003, he had discovered that the tax assessor had improperly included in his tax assessment property that, Houston testified, should not have been included.

Houston reviewed the responses he had given to Cousins’s written discovery requests; in those responses, Houston had admitted that “there had never been any fence boundaries on the property that I was selling.” Houston testified that all he knew about the fencing on the western side of his property was that it served as a cattle fence. Houston testified that, to the best of his recollection, he had not told Cousins that the western boundary ran to the creek but that, instead, he had indicated that he was uncertain of the location of the western boundary line. Houston further testified that he believed he had conveyed to Cousins the property required to be conveyed by the purchase agreement.

Analysis

Cousins asserts multiple issues on appeal. We first address his argument that the boundary line as established in the trial court’s judgment is unsubstantiated and unsupported by evidence and that the evidence before the trial court was insufficient to allow the trial court to establish the boundary line where it did. As a result, Cousins argues, the trial court’s judgment must be reversed.

In Todd v. Owens, 592 So.2d 534, 535 (Ala.1991), our supreme court stated the standard of review applicable to this issue:

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

Cousins asserts that the trial court’s description of the location of the boundary line between the properties insofar as they lie in section 4 “is from an unknown source, is not taken from any of the deeds in either party’s chain of title, is not supported by any evidence before the court, and does not provide a proper or adequate solution to the boundary line dispute at issue.” McNeel disagrees, asserting that the property description used by the trial court to establish the boundary line in section 4 was taken from a 1979 deed in her chain of title, that that deed was before the trial court, and that the only dispute as to that portion of the boundary line that required any interpretation by the trial court was regarding the “three acres in the Southeast Corner.”

McNeel further asserts that the trial court properly applied long-standing 'case-law to create a square of the three acres in the southeast corner of section 4, as referenced in the property description contained in the judgment. See Daniels v. Williams, 177 Ala. 140,144, 58 So. 419, 421 (1912) (“A conveyance of a definite quantity of land in or off of a specified corner of a designated tract is under a well-settled rule of construction, the grant of a corner quadrangle, of equal sides, extending to that corner.”); Green v. Jordan, 83 Ala. 220, 224, 3 So. 513, 514 (1887) (“The phrase, ‘except two acres in the south-east corner,’ must be construed to mean two acres, in such corner, lying in a square, and bounded by four equal sides.”); and Wilkinson v. Roper, 74 Ala. 140,148 (1883) (stating that, when a property description called for a specified acreage off of a “side, edge or corner,” the described property must be drawn in a quadrangle of equal sides from the side, edge, or corner). See also Henderson v. Elliott, 274 Ala. 339, 341, 342, 148 So.2d 622, 623, 624 (1963) (“Complainant’s deed calls for a quadrangle containing one acre of land of equal sides in the southeast corner of the SW 1/4 of the NW 1/4 of the named section.” “As we have shown, the deed of the complainant on its face must be construed to convey one acre, in the southeast corner of the forty, lying in a square, bounded by four equal sides.”). Because the trial court relied on evidence before it and longstanding principles of property law to establish the boundary line in section 4, we conclude that Cousins has failed to demonstrate reversible error as to the description of that portion of the boundary line.

Cousins also asserts that the trial court’s description of the location of the boundary line between the properties insofar as they lie in section 9 “appears to have been taken from an old prior deed in Cousins’s chain of title ... [and] is not consistent with Cousins’s deed from Houston, his survey, or the Autauga County Tax Assessment for the last twenty years.” He also complains because the trial court’s boundary-line description gives no indication of the location of the fence in question. We find no reversible error based on those arguments.

In drafting the boundary-line description for section 9, the trial court relied on language contained in the deed by which Houston acquired his property in 1978; that deed was before the trial court. We also note that the trial court, as the trier of fact, could have concluded that Burke’s survey, Houston’s deed to Cousins, which was based on Burke’s survey, and the tax assessor’s records relating to Houston’s property contained errors in their legal descriptions.

The trial court’s description of the boundary line in section 9 also relies on section corners and an identified road, i.e., landmarks, and provides stated measurements from those landmarks to define the boundary line. Therefore, we reject Cousins’s claim that the boundary line in section 9, as established by the trial court, is deficient under Ala.Code 1975, § 35-3-3.

Additionally, although the better practice might have been to identify the location of the fence in describing the boundary line between the two parcels of property, Cousins has cited no authority, and we know of none, requiring the trial court to have done so. We further note that a trial court may, but is not required to, appoint a surveyor, pursuant to Ala. Code 1975, § 35-3-20, to assist the court in determining the location of a boundary line. See, e.g., Ex parte M.C. Dixon Family P’ship, LLLP, 993 So.2d 447, 450 (Ala.Civ.App.2006) (recognizing the trial court’s discretion as to whether to appoint a surveyor in a boundary-line dispute). As a result, we conclude that Cousins has failed to identify reversible error in the trial court’s establishment of the boundary line in section 9.

We next address Cousins’s argument that he should not be held liable for damages resulting from his cutting of timber from the disputed property. In addressing this issue, we note that, on appeal, Cousins has not challenged the trial court’s findings that the disputed property rightfully belongs to McNeel or that none of Cousins’s predecessors in title had claimed ownership to the disputed property and, therefore, that Cousins’s claim of adverse possession failed as a matter of law.

Cousins, however, has challenged the trial court’s award of damages for his cutting of the timber because, he asserts, he had a sincere belief that any timber he cut was his own and the evidence did not establish a reckless disregard for the ownership of the trees. In support of his argument, he cites Mizell v. Container Corp. of America, 486 So.2d 398, 399 (Ala.1986), in which our supreme court stated:

“The existence of a reasonable belief that the cutting is authorized or that the trees are on one’s own property constitutes a defense to [an action for statutory damages, pursuant to Ala.Code 1975, § 35-14-1 et seq.]. Vick v. Tisdale, 56 Ala.App. 565, 568, 324 So.2d 279, 282 (1975). Moreover, such a belief, even if unreasonable, will preclude liability under these statutes unless the belief is ‘so patently unreasonable as to constitute a reckless disregard for the ownership of the trees.’ Id.”

Cousins did not specifically present this theory to the trial court. During the course of the trial, he simply argued that the disputed property had been conveyed to him by Houston and that he had not cut timber from the disputed property after learning that McNeel was asserting ownership of the disputed property. Cousins, however, did not present his “reasonable belief’ defense to the trial court until the filing of his postjudgment motion. It is well settled that “a trial court has the discretion to consider a new legal argument in a post-judgment motion, but is not required to do so,” and that “[w]e will reverse only if the trial court abuses that discretion.” Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369, 1370 (Ala.1988). Thus, the trial court was within its discretion in refusing to consider Cousins’s belated defense.

Even assuming that the trial court considered Cousins’s belated defense and rejected it, we find no reversible error. Cousins claimed that he had caused timber to be cut from the disputed property only once, in 2005, before he was notified of McNeel’s claim to the disputed property. The trial court, however, was presented with evidence indicating that Cousins had caused timber to be cut from the disputed property in 2007, after learning that McNeel was claiming to own the disputed property, and again in 2008, after this litigation had been initiated. The trial court, as the trier of fact, was entitled to resolve the dispute in the evidence, and, in this case, it did so in favor of McNeel.

We also note that McNeel asserted multiple causes of action under which the trial court could have imposed damages against Cousins. McNeel asserted, among others, a claim for statutory damages, pursuant to Ala.Code 1975, § 9-13-62, which provides:

“Any person or entity who damages, destroys, cuts, or removes timber or other forest products not owned by that person or without the authority of the legal owner, ... regardless of whether the act was done knowingly or intentionally, shall be jointly and severally liable to the owner for double the fair market value of the timber or other forest products that were damaged, destroyed, cut, or removed.”

The trial court’s judgment included language sufficient to indicate that it was awarding McNeel double statutory damages, pursuant to § 9-13-62. Additionally, the trial court specifically found that Cousins had acted wantonly, which, when used in an action for trespass, “means simply an invasion of the plaintiffs’ premises with knowledge of the violation of plaintiffs’ rights.” Calvert & Marsh Coal Co. v. Pass, 393 So.2d 955, 956 (Ala.1980). See also Martin v. Glass, 84 So.3d 131 (Ala.Civ.App.2011) (plurality opinion) (affirming award of nominal and punitive damages awarded to landowner in trespass action against logger who cut several of landowner’s trees on the basis that evidence supported trial court’s finding that logger had acted wantonly; landowner had asked logger twice to leave her property and to cease cutting of timber, but logger returned and continued cutting).

On appeal, Cousins did not assert that the damages award is excessive until he filed his reply brief. In Steele v. Rosenfeld, LLC, 936 So.2d 488 (Ala.2005), the supreme court stated:

“‘The law of Alabama provides that where no legal authority is cited or argued, the effect is the same as if no argument had been made.’ Bennett v. Bennett, 506 So.2d 1021, 1023 (Ala.Civ.App.1987) (emphasis added). ‘[A]n argument may not be raised, nor may an argument be supported by citations to authority, for the first time in an appellant’s reply brief.’ Improved Benevolent & Protective Order of Elks v. Moss, 855 So.2d 1107, 1111 (Ala.Civ.App.2003), abrogated on other grounds, Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638 (Ala.2003). Where an appellant first cites authority for an argument in his reply brief, it is as if the argument was first raised in that reply brief, and it will not be considered.”

936 So.2d at 493. See also Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 173 (Ala.2005) (“It is a well-established principle of appellate review that we will not consider an issue not raised in an appellant’s initial brief, but raised only in the reply brief.”); and Rule 28(a)(10), Ala. R.App. P. We, therefore, find no reversible error in the trial court’s award of damages to McNeel based on Cousins’s cutting of timber from the disputed property.

Cousins next asserts that the trial court erred in denying his breach-of-the-warranty-deed claim against Houston. The deed by which Houston conveyed the property to Cousins contained the following language:

“And I do, for myself and for my heirs, executors and administrators, covenant with said GRANTEE, his heirs and assigns, that I am lawfully seized in fee simple of said premises; that he is free from all encumbrances, unless otherwise stated above; that I have a good right to sell and convey the same as aforesaid; that I will and my heirs, executors and administrators shall WARRANT and DEFEND the same to the said GRANTEE, his heirs and assigns forever, against the lawful claims of all persons, except as hereinbefore provided.”

(Capitalization in original.) Thus, the deed from Houston to Cousins contained the following covenants and warranties: the covenant that Houston was seized in fee simple of the premises identified in the deed; the covenant that Houston had the right to convey the property described in the deed; the covenant of quiet enjoyment of the premises described in the deed; a covenant that there were no encumbrances against the premises described in the deed; and a covenant that Houston would warrant and defend the title to the premises described in the deed against the claims of all other persons. See, e.g., Boyce v. Cassese, 941 So.2d 932, 944 (Ala.2006) (addressing a breach-of-warranty-deed claim asserted against the seller of real property); and St. Paul Title Ins. Corp. v. Owen, 452 So.2d 482, 484 (Ala.1984) (addressing express warranty deeds and the covenants and warranties found therein); see also Jesse P. Evans III, Alabama Property Rights and Remedies § 4.4[b] (3d ed.2004) (addressing express covenants and their meaning). No exceptions to those covenants and warranties were noted in the deed.

As noted before, the deed conveying Houston’s property to Cousins incorporated the legal description from Burke’s survey, which, Burke admitted,' placed Houston’s western boundary line at the creek. To award McNeel damages on her claim of trespass, the trial court must have concluded that the disputed property, i.e., the property to the east of the creek and to the west of the fence, belongs to McNeel and that Cousins had wrongfully cut timber from the disputed property. As a result, we must conclude that the deed by which Houston conveyed his property to Cousins purported to convey property that rightfully belonged to McNeel. Thus, the evidence at trial established that, at the time Houston conveyed his property to Cousins by warranty deed, Houston was not lawfully seized in fee simple of all the property he purported to convey to Cousins. See, e.g., Boyce, 941 So.2d at 944 (in action alleging breach of a warranty deed, reversing a summary judgment entered in favor of Cassese because, at the time of the conveyance to Boyce, the property had not been free of all encumbrances, as warranted in the deed). See also Jesse P. Evans III, Alabama PropeRy Rights and Remedies § 4.4[b][I] (“The covenant of sei-sin is broken if there is an outstanding superior title, an outstanding encumbrance diminishing the value or enjoyment of the property, or if the grantor does not have substantially the very estate, both in quality and quantity, which is purportedly conveyed.”).

In his brief to this court, Houston asserts that the deed by which he conveyed the property to Cousins was a statutory warranty deed rather than a general warranty deed. He argues that a statutory warranty deed carries a lesser warranty to the grantee and that, because he was not responsible for the defect in the legal description in Cousins’s deed and because he did nothing to create McNeel’s superior claim to Cousins’s title, he cannot be liable to Cousins. It is sufficient to state that Houston’s deed to Cousins was not a statutory warranty deed because a statutory warranty deed does not contain express warranties as did the deed Houston provided to Cousins. See, e.g., Ala.Code 1975, § 35-4-271 (addressing implied warranties and covenants that arise when a deed memorializing a “conveyance” contains no express warranties but contains any or all of the words “grant,” “bargain,” or “sell”).

In its May 11, 2011, judgment, the trial court found that “defendant Cousins got exactly what he bargained for in the property located east of the line established herein. Therefore there is not contribution from Houston to Cousins.” In his postjudgment motion, Cousins notified the trial court that, from the above-quoted language, it was unclear whether the -trial court had ruled on his breach-of-the-warranty-deed claim against Houston. Cousins also argued, alternatively, that, if the trial court had denied that claim, it had erred in doing so. The trial court denied that motion.

Based on the trial court’s judgment in favor of McNeel, i.e., concluding that Cousins was not the legal owner of the disputed property, which was warranted in his deed, Cousins was entitled to a judgment in his favor on his breach-of-the-warranty-deed claim against Houston. We, therefore, conclude that the trial court erred in denying Cousins’s postjudgment motion on that issue, and we reverse the trial court’s judgment to the extent it denied Cousins’s claim against Houston alleging breach of the warranty deed. We remand the cause to the trial court to determine the amount of Cousins’s damages based upon the evidence presented at the trial.

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

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

      . This is the second time Cousins and McNeel have been before us regarding this property dispute. See Cousins v. McNeel, 62 So.3d 1039 (Ala.Civ.App.2010). In Cousins, supra, we reversed a summary judgment that had been entered in favor of McNeel because, we concluded, genuine issues of material fact existed; we remanded the cause for further proceedings. Id. at 1046.

      . On appeal, Cousins asserts that the disputed property totals 15 acres.

      .Edmunson's testimony did not make clear whether the "value” he was referring to was regarding the timber cut in 2005, the timber cut in 2007, or both.

      . Much of Edmunson's testimony was accompanied by references to "here” or “there” while pointing to a map or a plat.

      . Those two employees testified at the trial; they agreed with Cousins that Houston had indicated that the creek was the western boundary of his property.

      . Simultaneously with his purchase of Houston's property, Cousins had purchased 30 acres located to the north of Houston’s property ("the Condra property”) and approximately 56-70 acres located to the east of Houston’s property ("the Buchanan property”). Those purchases, along with the purportedly 250-264 acres purchased from Houston, totaled approximately 350 acres. Burke’s survey had included the Condra property but not the Buchanan property.

      . Cousins testified that he had received a total of $8,701.37 in 2005 for timber cut from his entire 350-acre tract, which was half open and half wooded. Cousins testified that he had calculated the per-acre price he had received from the 2005 thinning of the timber to be $50.59. He explained that he had calculated that per-acre value by dividing the amount he had received in 2005 as a result of the timber thinning ($8,701.37) by the number of woodland acres on his property (350/2 = 175) and multiplying that amount by the number of acres contained in the disputed property. Thus, he testified that he calculated the value of the "stumpage” removed from the 30-acre disputed property in the 2005 thinning as $8,701.37/175 x 30 acres = $1,517.70. Our calculation is slightly lower: $8,701.37/175 = $49.72 x 30 acres = $1,491.66.

      . Houston specifically recalled, however, that, as a child, he had "sneaked” over the fence to swim in the pond or lake located on the adjacent property. According to the trial testimony, that pond or lake had once stood in the general vicinity of where the creek is located. That testimony lends support to McNeel’s and Joe’s testimony that the fence had always stood in its current location and had always served as the boundary line between the two properties.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Terence MERCHANT v. Irving M. WINTER, Jr.
    2110116.
    Court of Civil Appeals of Alabama.
    May 4, 2012.

      Terence Merchant, pro se.
   THOMPSON, Presiding Judge.

On March 16, 2011, Terence Merchant (“Merchant”), who is an inmate of a correctional facility, filed a complaint against Irving M. Winter, Jr. (“Winter”). In his complaint, Merchant alleged claims under the Alabama Legal Services Liability Act (“ALSLA”), § 6-5-570 et seq., Ala.Code 1975, in connection with Winter’s representation of him in the criminal proceeding that resulted in. Merchant’s incarceration. Both Merchant and Winter proceeded pro se in the trial court and are proceeding pro se before this court.

Winter answered Merchant’s complaint and denied liability. In addition, Winter filed a motion seeking to dismiss the claims Merchant asserted against him. In support of that motion, Winter submitted certain documents. Merchant responded to the “motion to dismiss,” and he also submitted documents in support of his arguments. The trial court scheduled a hearing on the motion, and it entered an order allowing Merchant to be transported from the correctional facility in which he is incarcerated to attend the scheduled hearing. At that hearing, the trial court considered the parties’ arguments and admitted into evidence several documents as exhibits.

On August 10, 2011, the trial court entered a judgment “dismissing” Merchant’s claims against Winter. In that judgment, the trial court stated that it found that “[Merchant’s] allegations lacked merit.” Merchant filed a supplemental submission of evidence two days after the entry of the judgment; it appears that Merchant mailed that submission to the trial court before the entry of the judgment.

Merchant also filed a postjudgment motion. The trial court did not rule on Merchant’s postjudgment motion, but, before the 90 days allowed under Rule 59.1, Ala. R. Civ. P., had expired, Merchant filed his notice of appeal. An appeal filed before the disposition of a pending postjudgment motion is deemed to be held in abeyance until the resolution of that motion by a ruling or by its denial by operation of law. Rule 4(a)(5), Ala.R.App. P. The trial court did not rule on Merchant’s post-judgment motion, and, therefore, it was denied by operation of law pursuant to Rule 59.1. Merchant’s notice of appeal became effective on the date the post-judgment motion was deemed denied by operation of law. Kenco Signs & Awning Div., Inc. v. CDC of Dothan, L.L.C., 813 So.2d 913, 915 (Ala.Civ.App.2001). The appeal was transferred to this court by the supreme court pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Merchant argues that the trial court erred in entering a judgment in favor of Winter. Initially, we note that the parties’ submission of evidence outside the pleadings, and the trial court’s acceptance and consideration of that evidence, resulted in Winter’s “motion to dismiss” being converted to a motion for a summary judgment. Rule 12(b), Ala. R. Civ. P.; Jenkins v. State Farm Mut. Auto. Ins. Co., 80 So.3d 414, 417 (Ala.Civ.App.2008).

“ ‘ “[An appellate 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. South-Trust 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).” ’ ”

Gooden v. City of Talladega, 966 So.2d 232, 235 (Ala.2007) (quoting Prince v. Poole, 935 So.2d 431, 442 (Ala.2006), quoting in turn Dow v. Alabama Democratic Party, 897 So.2d 1035,1038-39 (Ala.2004)).

According to the allegations in the pleadings and the documents submitted by the parties, Merchant is incarcerated pursuant to a plea agreement entered on October 12, 2010. That agreement provided that Merchant serve sentences of 25 years, split to serve 5 years in prison followed by 20 years on probation, on each of 9 counts of unlawful distribution of cocaine; those sentences were to be served concurrently. Additionally, Merchant was sentenced to a five-year sentence, split to serve one year in prison followed by four years’ probation, on each of five counts of trafficking cocaine. The trafficking sentences were to run concurrently with each other but consecutively to the unlawful-distribution sentences. Merchant was also charged with other felonies, but it appears that those charges were dropped as part of the October 2010 plea agreement.

Merchant alleged in his complaint that in March 2010 an assistant district attorney offered him a 10-year sentence on all 21 criminal counts then pending against him and that, pursuant to that purported offer, he was to receive credit for “good time” and for time served pending sentencing. Merchant alleged that Winter advised him against taking that purported offer and that Winter did so in order to increase the amount of time he spent on Merchant’s case in order to increase his legal fee. Merchant alleged in his complaint that he was currently incarcerated on a 33-year sentence. Merchant sought damages for negligence, wantonness, breach of contract, and fraud.

In his “motion to dismiss,” Winter argued that Merchant had committed a fraud upon the court by representing that he was indigent and, therefore, entitled to waive certain court costs for that reason. Winter argued that Merchant’s conduct in making that representation to the court constituted contempt and that Merchant’s claims against him should be dismissed for that reason. Winter also asserted that Merchant knowingly rejected the purported plea offer by the assistant district attorney and that the plea agreement pursuant to which Merchant was ultimately sentenced was less than the 10-year sentence the assistant district attorney had purportedly offered in March 2010.

In support of his motion, Winter submitted certain evidence pertaining to some land-sale transactions in which he represented Merchant, a letter from Merchant to Winter concerning those transactions and Winter’s representation of him in the criminal matter, and documents pertaining to the plea agreement pursuant to which Merchant is currently incarcerated. In response to Winter’s motion, Merchant submitted only copies of four letters he sent to Winter in which Merchant documented certain complaints he had about Winter’s representation of him in the criminal proceeding.

During the hearing on Winter’s summary-judgment motion, Merchant submitted as exhibits some of the letters he had already submitted in support of his opposition to Winter’s motion. Winter submitted into evidence as exhibits certain documents pertaining to Merchant’s acceptance of the October 2010 plea offer and Winter’s itemization of charges for his representation of Merchant in the criminal proceeding.

Before the trial court during the summary-judgment hearing, Merchant and Winter also each made representations to the trial court pertaining to other facts each contended supported his position with regard to the summary-judgment motion. Merchant explained to the trial court his version of facts pertaining to the purported March 2010 plea offer, its terms, and the length of time he expected to serve on his current sentence. Winter made representations regarding the validity of the purported March 2010 plea offer and the quality of his representation of Merchant. However, neither Merchant nor Winter was sworn in during the summary-judgment hearing, and, therefore, their representations did not constitute admissible evidence that could be properly considered by the trial court in a summary-judgment proceeding. Alabama Dep’t of Indus. Relations v. Smith, 62 So.3d 1046 (Ala.Civ.App.2010).

In Alabama Department of Industrial Relations v. Smith, supra, the trial court conducted a hearing on the Department’s summary-judgment motion. In that case, the Department made a prima facie case in support of its summary-judgment motion, and Smith failed to respond to the summary-judgment motion except through her appearance at the summary-judgment hearing. During the summary-judgment hearing, the trial court heard the arguments of the parties, and Smith made certain factual representations to the trial court; “however, Smith was not sworn in as a witness, and, therefore, she did not provide sworn testimony before the trial court.” Alabama Dep’t of Indus. Relations v. Smith, 62 So.3d at 1048. Based on the matters presented to it at the summary-judgment hearing, the trial court entered a judgment on the merits in favor of the Department. That judgment included factual findings that were based on the factual representations Smith had made before the trial court during the hearing on the Department’s summary-judgment motion. This court reversed the trial court’s judgment, holding that because Smith’s factual representations to the trial court were not sworn and did not constitute admissible evidence, the trial court erred in relying on those representations in entering its judgment. Alabama Dep’t of Indus. Relations v. Smith, 62 So.3d at 1049-50.

Similarly, in this case, we conclude that the oral representations Winter and Merchant made to the trial court did not constitute admissible evidence upon which the trial court could base its summary judgment. Alabama Dep’t of Indus. Relations v. Smith, supra. The only admissible evidence before the trial court was the documentary evidence submitted by the parties, which included evidence pertaining to land-sale transactions, certain letters regarding Winter’s representation of Merchant, and documents formalizing the plea agreement accepted by Merchant in October 2010. Neither Winter nor Merchant submitted an affidavit or other testimony concerning the underlying facts, and neither presented evidence regarding the standard of care applicable to an action under the ALSLA. See Valentine v. Watters, 896 So.2d 385 (Ala.2004) (discussing, generally, the ALSLA and the applicable standard of care).

In entering its judgment in this case, the trial court found that Merchant’s claims were “without merit.” However, “because there was no admissible evidence to support that judgment,” this court must reverse the judgment and remand this cause to the trial court for further proceedings. Alabama Dep’t of Indus. Relations v. Smith, 62 So.3d at 1050.

REVERSED AND REMANDED.

PITTMAN and THOMAS, JJ, concur.

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

BRYAN, J., dissents, without writing.

      . Recently, in Williams v. Harris, 80 So.3d 273 (Ala.Civ.App.2011), this court determined that the facts of Alabama Department of Industrial Relations v. Smith, supra, were distinguishable from those of that case. In Williams v. Harris, supra, the trial court failed to swear in the witnesses during a hearing on the merits. This court held that the parties’ failure to object to the trial court’s failure to place the parties under oath before they testified constituted a waiver .of any such objection and, therefore, that the issue had not been preserved for appeal. Williams v. Harris, 80 So.3d at 278-79. In so holding, the court distinguished that case from Smith, supra, by noting that in Smith the matter had been before the trial court on a summary-judgment hearing at which the parties made legal arguments, as opposed to the evidentia-ry hearing on the merits at issue in Williams v. Harris, supra, 80 So.3d at 278. We conclude that this case is factually similar to Smith, supra, rather than to Williams v. Harris, supra.


author: PITTMAN, Judge.

text:
    Kaylea Jill (Ritter) MUELLEN v. Hollis Talmadge (Tab) RITTER.
    2100615.
    Court of Civil Appeals of Alabama.
    May 11, 2012.

      Charles N. Reese of Reese & Reese Attorneys, P.C., Daleville, for appellant.
    Samuel Christopher Money, Abbeville, for appellee.
   PITTMAN, Judge.

Kaylea Jill (Ritter) Muellen (“the mother”) and Hollis Talmadge (Tab) Ritter (“the father”) were divorced by the Houston Circuit Court in 2004. The divorce judgment awarded the mother sole physical custody of the parties’ three minor children and ordered the father to pay child support. In May 2009, the mother properly notified the father that she and the minor children would be moving from Houston County in July 2009 to join the mother’s husband at his military assignment at Malmstrom Air Force Base in Great Falls, Montana. The father filed no objection to the move and no action to obtain a revised schedule of visitation with the children.

On July 19, 2010, the Houston Circuit Court entered a judgment that, among other things, increased the father’s child-support obligation from $380 per month to $573 per month, altered the father’s schedule of visitation with the children, made the father responsible for all expenses associated with exercising his visitation rights, and provided the father with a credit against his child-support obligation for all expenses incurred in exercising those rights. Specifically, the judgment provided the following:

“[The father] shall be responsible for the entire costs associated with exercising visitation with the children, including, without limitation, airline tickets (and lodging for himself and the children when he travels to their location to exercise visitation), and shall be relieved of the requirement to pay child support in an amount equal to such costs incurred for the same and shall be allowed to take a credit against child support in the month(s) in which he actually incurs such costs and shall provide the [mother] with proof of such costs.”

On January 26, 2011, the Alabama Department of Human Resources (“DHR”), whose State Disbursement Unit was providing child-support-enforcement services for the parties pursuant to § 30-3-195(c), Ala.Code 1975, filed a “motion to clarify” the July 19, 2010, judgment, requesting clarification as to

“what dollar amount toward child support is to be given, especially at times when the visitation costs far exceed the child support. The parties have different perspectives as to how much the [father] should be credited for travel expenses.
“The [mother] lives in Montana and the [father] lives in Alabama, and the visitation occurs only certain times of the year as the children are school age.” On January 31, 2011, the trial court

entered the following order in response to DHR’s motion:

“The court’s order contemplates that [the father] shall receive a dollar-for-dollar credit for the entire cost associated with exercising visitation with the children when he travels to the location where they are at in Montana (or elsewhere if the children are residing with the mother at a location that is 200 miles or more from the [father’s] residence). This credit is to be given even when the cost of visitation exceeds the monthly amount of child support. Further, if the cost of visitation is in excess of one month’s child support, [the father] shall be allowed to take a credit against future child support payments until the cost of visitation is fully credited against child support.”

On February 8, 2011, the mother moved to set aside the January 31, 2011, order, arguing (1) that the order constituted an impermissible modification rather than a valid clarification of the July 19, 2010, judgment (which judgment, the mother argued, the trial court had no jurisdiction to modify after 30 days) and (2) that the order violated the public policy of Alabama. The circuit court entered no ruling on the mother’s motion to set aside its January 31, 2011 order. Instead, on February 25, 2011, it ordered the parties to mediation as to the issue, stating that “[i]f after mediation is completed, all issues are not resolved, either party may file a motion to set this matter for trial.”

On April 4, 2011 (63 days after the entry of the January 31, 2011, order), the mother filed a petition for a writ of mandamus in this court, arguing that the January 31, 2011, order constituted an impermissible modification rather than a valid clarification of the July 19, 2010, judgment.

“ ‘[A] petition for writ of mandamus is a proper means to review questions of subject-matter jurisdiction.’ Shamburger v. Lambert, 24 So.3d 1139, 1142 (Ala.Civ.App.2009) (citing Ex parte Davidson, 782 So.2d 237, 240 (Ala.2000)). Nevertheless, [a petitioner is] required, as is this court, to abide by the procedural mandates of Rule 21, [Ala. R.App. P.,] which designates the proper procedure for petitioning an appellate court for a writ of mandamus.”

Ex parte R.W., 41 So.3d 800, 805 (Ala.Civ.App.2009). Rule 21(a)(3), Ala. R.App. P., provides:

“(3) Time for Filing. The petition shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking review of an order of a trial court or of a lower appellate court shall be the same as the time for taking an appeal. If a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.”

Although the mother’s mandamus petition was filed within 42 days of the entry of the trial court’s February 25, 2011, mediation order, the relief the mother seeks — vacating the trial court’s January 31, 2011, order on the ground that it constituted a modification rather than a clarification of the July 19, 2010, judgment — stems from the January 31, 2011, order and not from the February 25, 2011, order. As measured from the entry of the January 31, 2011, order, the mother’s petition was not timely filed, and it did not state good cause for the delay.

Upon initial review, this court elected to treat the mother’s mandamus petition, which asserted that the circuit court had no jurisdiction to modify its July 19, 2010, judgment, as an appeal from the denial of a motion for relief pursuant to Rule 60(b)(4), Ala. R. Civ. P., which allows for relief from a void judgment. Upon further consideration, however, we conclude that the mother’s petition cannot be treated as an appeal from the denial of a Rule 60(b)(4) petition because the trial court did not deny the mother’s motion to set aside the January 31, 2011, order. Instead, the trial court ordered the parties to mediation as to the issue, stating that “[i]f after mediation is completed, all issues are not resolved, either party may file a motion to set this matter for trial.”

The mother had a clear legal right to an order either granting or denying her motion to set aside the January 31, 2011, order, and the trial court had a corresponding duty to enter such an order. See Ex parte Gamble, 709 So.2d 67, 70 (Ala.Civ.App.1998). The trial court’s February 25, 2011, order, however, indicated an unwillingness to address the merits of the mother’s motion in an apparent attempt to encourage the parties to reach a settlement of the issue. Cf. Ex parte Ford Motor Credit, 607 So.2d 169, 170 (Ala.1992) (writ of mandamus issued to compel a ruling by the trial court on a creditor’s motion for a writ of seizure, pursuant to Rule 64, Ala. R. Civ. P., when the trial court refused to rule on the motion in an attempt to encourage settlement of the dispute).

Because in the present case the trial court’s February 25, 2011, mediation order did not constitute a ruling on the merits of the mother’s motion to set aside the January 31, 2011, order, we deem it appropriate to treat the mother’s petition as one for a writ of mandamus to compel the trial court to rule on her motion, which motion was, in essence, one seeking relief under Rule 60(b)(4).

In Ex parte Gamble, supra, this court held that, when the trial court’s order indicated “an unwillingness ... to address the merits” of an employee’s claim, pursuant to Rules 60(b)(2) and 60(b)(6), Ala. R. Civ. P., for relief from the underlying workers’ compensation judgment in favor of the employer, a writ of mandamus would issue to compel the trial court to address the merits of the claim. 709 So.2d at 69. However, this court “expressly disavowed] any opinion concerning whether [the employee’s] motion should or should not be granted,” because “ ‘[w]hile the writ [of mandamus] will issue to compel the exercise of discretion by a circuit judge, it will not issue to compel the exercise of discretion in a particular manner.’ 709 So.2d at 70 (quoting Ex parte Ford Motor Credit Co., 607 So.2d 169, 170 (Ala.1992); emphasis added by this court in Gamble).

The present case is not subject to the rule, applicable in Ex parte Gamble supra, and Ex parte Ford Motor Credit, supra, that the writ of mandamus will not issue to compel the trial court’s exercise of discretion in a particular manner, because,

“ ‘[w]hen the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b) ft), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Satterfield v. Winston Industries, Inc., 553 So.2d 61 (Ala.1989).’”

Orix Fin. Servs., Inc. v. Murphy, 9 So.3d 1241, 1244 (Ala.2008) (quoting Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991); emphasis added). Because the determination whether the trial court’s January 31, 2011, order constituted a valid clarification or an impermissible modification of the July 19, 2010, judgment does not call for an exercise of judicial discretion, but for an application of the law to undisputed facts, we now proceed to a determination of that issue.

‘“A “motion for clarification” is just what the name implies: a request for an explanation from the trial court as to the meaning of a prior, allegedly unclear, order. A “motion for clarification” does not seek to persuade the trial court that a prior judgment should be changed, modified, or invalidated. If it does seek to do any of those things, then it is not a “motion to clarify” a judgment, but a motion to alter, amend, or vacate a judgment, one that, pursuant to Rule 59(e), Ala. R. Civ. P., must be filed not later than 30 days after entry of the judgment. If a trial court’s response to a “motion for clarification” is to explain, rather than to alter, amend, or vacate a prior order, then that response is a strong indicator that the motion was, in fact, one seeking clarification. See Gold Kist, Inc. v. Crouch, 671 So.2d 695, 696 (Ala.Civ.App.1995) (noting that “the original order was not modified by [the request for clarification]; the court simply clarified what we conclude was an abundantly clear order”). The converse is also true. If the trial court’s response to a motion for clarification does “more than merely clarify the trial court’s previous order,” by making, for example, “modifications that [are] more substantial in nature than the correction of a mere mechanical mistake,” then such corrections must be made pursuant to either Rule 59(e) or Rule 60(b), Ala.R.App. P. Pate v. Pate, 849 So.2d 972, 976 (Ala.Civ.App.2002).’ ”

Mosley v. Builders S., Inc., 41 So.3d 806, 809-10 (Ala.Civ.App.2010) (quoting Moss v. Mosley, 948 So.2d 560, 565 (Ala.Civ.App.2006)).

An appellate court “construe[s] [a] trial court’s judgment like other written instruments: the rules of construction for contracts are applicable for construing judgments.” Boykin v. Law, 946 So.2d 838, 848 (Ala.2006) (citing Hanson v. Hearn, 521 So.2d 953, 954 (Ala.1988), and Moore v. Graham, 590 So.2d 293, 295 (Ala.Civ.App.1991)). ‘If the terms of a judgment are not ambiguous, then they must be given their usual and ordinary meaning and their “legal effect must be declared in the light of the literal meaning of the language used” in the judgment.’ ” Thornton v. Elmore Cnty. Bd. of Educ., 882 So.2d 855, 858 (Ala.Civ.App.2003) (quoting State Pers. Bd. v. Akers, 797 So.2d 422, 424 (Ala.2000), quoting in turn Wise v. Watson, 286 Ala. 22, 27, 236 So.2d 681, 686 (1970)).

The trial court’s July 19, 2010, judgment (a) made the father “responsible for the entire costs associated with exercising visitation with the children,” (b) relieved the father of the “requirement to pay child support in an amount equal to such costs incurred for the same,” and (c) allowed the father “to take a credit against child support in the month(s) in which he actually incurred] such costs.” In response to DHR’s “motion to clarify” the judgment, specifically, with respect to “what dollar amount toward child support is to be given, especially at times when the visitation costs far exceed the child support,” the trial court’s January 31, 2011, order first addressed those portions of the July 19, 2010, judgment that we have labeled as subparts (a) and (b). That portion of the January 31, 2011, order states:

“The court’s [July 19, 2010, judgment] contemplates that [the father] shall receive a dollar-for-dollar credit for the entire cost associated with exercising visitation with the children when he travels to the location where they are at in Montana (or elsewhere if the children are residing with the mother at a location that is 200 miles or more from the [father’s] residence). This credit is to be given even when the cost of visitation exceeds the monthly amount of child support.”

The foregoing portion of the January 31, 2011, order is consistent with the clear and unambiguous meaning of subparts (a) and (b) of the July 19, 2010, judgment: that the father may offset against his monthly child-support obligation the costs incurred in exercising visitation with the children. It is that portion of the July 19, 2010, judgment that we have labeled as subpart (c) for which DHR requested a clarification, and about which the mother complains that the trial court’s order purporting to clarify the judgment actually modified it.

Subpart (c) of the July 19, 2010, judgment clearly and unambiguously permitted the father to “take a credit against child support in the month(s) in which he actually incurs such costs.” In contrast, the January 31, 2011, order purporting to clarify the judgment provides that, “if the cost of visitation is in excess of one month’s child support, [the father] shall be allowed to take a credit against future child support payments until the cost of visitation is fully credited against child support.”

We conclude that the January 31, 2011, order impermissibly modified rather than clarified subpart (c) of the July 19, 2010, judgment. Whereas the July 19, 2010, judgment permits the father to credit against his monthly child-support obligation all visitation costs incurred in the same month or months in which he incurs such costs, the January 31, 2011, order permits the father to credit against his future monthly child-support obligation all visitation costs incurred at any time. Unlike subpart (c) of the July 19, 2010, judgment, the January 31, 2011, order allows the credit against the father’s child-support obligation to operate in futurity and conceivably could eliminate that obligation altogether. The father was ordered to pay child support in the amount of $573 per month, for an annual total of $6,876. If the father incurs costs of $1,800 each time he travels to and from Montana to visit the three children, or arranges for them to visit him in Alabama, and if he exercises his visitation rights 4 times a year (as the visitation schedule provides in odd-numbered years), then he will owe no child support for that year. Clearly, the July 19, 2010, judgment allowing he father “to take a credit against child support in the month(s) in which he actually incurs such [visitation] costs” did not provide for such a result.

We conclude that the mother has shown a clear legal right to a ruling on her motion to set aside the January 31, 2011, order. Therefore, we grant the mother’s petition and issue the writ. Because the ruling the mother seeks does not involve the exercise of judicial discretion but, instead, implicates the jurisdiction of the trial court to modify a final judgment, we direct the trial court to vacate its mediation order of February 25, 2011, and to grant the mother’s motion to set aside its January 31, 2011, order.

PETITION GRANTED; WRIT ISSUED.

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

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

      . “ ‘A petition for a writ of mandamus based on a trial court’s failure to rule on a matter does not have a benchmark date from which to begin [to] measure a reasonable time. Thus, [Rule 21(a)(3), Ala. R.App. P.], setting the presumptively reasonable time within which to file a petition, will not affect the determination of what is a reasonable time for filing a petition based on the failure to rule.' ” Ex parte Davis, 834 So.2d 830, 832-33 (Ala.Crim.App.2002) (quoting Committee Comments to Amendments to Rule 21(a) and Rule 21(e)(4) effective September 1, 2000).


text:
    OCEAN REEF DEVELOPERS II, LLC v. Michael L. MADDOX.
    2110337.
    Court of Civil Appeals of Alabama.
    May 18, 2012.
    Joshua B. Sullivan of Henslee, Robertson, Strawn & Sullivan, LLC, Gadsden, for appellant.
    David W. Owen and Luke D. Martin of Bradley Arant Boult Cummings LLP, Birmingham, for appellee.
   MOORE, Judge.

Ocean Reef Developers II, LLC, appeals from the denial of its motion for an award of attorney fees by the Etowah Circuit Court (“the Alabama trial court”). We affirm.

Background

This is the second time the parties have been before this court. See Ex parte Ocean Reef Developers II, LLC, 84 So.3d 900 (Ala.Civ.App.2011). The pertinent underlying facts and procedural history are as follows. Ocean Reef and Michael Maddox entered into an agreement pursuant to which Maddox agreed to purchase and Ocean Reef agreed to construct a condominium in Panama City, Florida (“the purchase agreement”). The terms of that purchase agreement required Maddox to deposit a specified sum into escrow; to satisfy his requirements under the purchase agreement, Maddox obtained a letter of credit from Exchange Bank of Alabama in favor of Ocean Reefs escrow agent. The purchase agreement provided that the escrow deposit would be fully refunded if Ocean Reef failed to perform any of its contractual obligations.

A dispute subsequently arose regarding whether Ocean Reef had fulfilled its contractual obligations under the purchase agreement. Maddox notified Ocean Reef that he considered Ocean Reef to be in default, and he requested the return of his letter of credit. Ocean Reef disputed Maddox’s allegations, and it refused to return the letter of credit.

Maddox filed suit against Ocean Reef in a Florida circuit court (“the Florida action”), seeking a judgment declaring that Ocean Reef had breached the purchase agreement; he also sought to terminate the purchase agreement, a refund of his deposit, a cancellation of the letter of credit, and an award of attorney fees and costs. While the Florida action was pending, Maddox filed suit against Ocean Reef in the Alabama trial court (“the Alabama action”), asserting that, because Ocean Reef had defaulted under the purchase agreement, it was not entitled to draw against the letter of credit. Maddox sought a restraining order against Ocean Reef and its escrow agent preventing them from drawing against the letter of credit, a permanent injunction to prevent the issuer of the letter of credit from honoring any request for payment under the letter of credit, and an award of attorney fees and costs. Maddox was represented by different counsel in the Florida action and the Alabama action.

On December 11, 2008, the Florida circuit court entered a judgment in favor of Maddox, finding that Ocean Reef had breached the purchase agreement and that, as a result, Maddox was entitled to a refund of all deposits he had paid, plus interest, and a return of the letter of credit. The judgment entered by the Florida circuit court also stated that “this court shall retain jurisdiction of this subject matter and the parties for all purposes, including the award of attorney fees and costs.”

After that judgment was affirmed on appeal, Maddox moved the Florida circuit court for an award of attorney fees and costs, relying on section 5(D) of the purchase agreement, which provided: “In the event of a dispute under this Agreement, the prevailing party shall be entitled to receive its costs of enforcement, including reasonable attorney fees.” In that motion, Maddox did not include a request for any attorney fees related to the Alabama action. On March 4, 2009, the Florida circuit court entered a judgment awarding Maddox attorney fees and costs.

In January 2010, Maddox filed an amended complaint in the Alabama action, seeking to recover the attorney fees that he had paid to his Alabama legal counsel “for its work to enjoin [Ocean Reefs] wrongful draw on the letter of credit and to advise and assist in the Florida case.” Maddox again relied on section 5(D) of the purchase agreement, allowing a prevailing party to recover attorney fees, as support for his motion.

Ocean Reef moved to dismiss the amended complaint filed by Maddox in the Alabama action, asserting, among other things, that Maddox’s request for attorney fees and costs in the Alabama action was barred by the doctrine of res judicata. The Alabama trial court denied that motion; it also denied Ocean Reefs subsequently filed “motion to reconsider.” In July 2011, Ocean Reef petitioned this court for mandamus relief, and, on November 4, 2011, this court granted that petition. Ex parte Ocean Reef, 84 So.3d at 907.

In granting Ocean Reefs mandamus petition, this court concluded that, in the Florida action, Maddox had had an opportunity to present his claim for all attorney fees related to his dispute with Ocean Reef, including attorney fees incurred in the Alabama action, and that he had failed to present that claim to the Florida circuit court. Ex parte Ocean Reef, 84 So.3d at 907. This court stated: “Having failed to [present a claim in the Florida action for attorney fees incurred in the Alabama action], he is now barred by the doctrine of res judicata from pursuing that claim in the Alabama action.” 84 So.3d at 907. We, therefore, directed the Alabama trial court to enter an order dismissing Maddox’s amended complaint against Ocean Reef.

On November 23, 2011, Ocean Reef moved the Alabama trial court for an award of attorney fees, asserting that it was the prevailing party in the Alabama action and that, pursuant to section 5(D) of the purchase agreement, it was entitled to an award of attorney fees. On November 28, 2011, the Alabama trial court entered an order dismissing Maddox’s action against Ocean Reef, and, on December 6, 2011, the Alabama trial court denied Ocean Reefs motion for attorney fees. The Alabama trial court stated, in pertinent part:

“[Ocean Reef] may not have its cake and eat it too. It may not seek dismissal of the action of [Maddox] on the basis that the Purchase Agreement issues have already been litigated and thus the matter is res judicata, and then seek to receive attorney’s fees itself under the terms of the same agreement. The point is made even more profound when considering [Maddox] prevailed in the previous litigation.”

On December 20, 2011, the Alabama trial court denied Ocean Reefs motion to alter, amend, or vacate the December 6, 2011, order. Ocean Reef timely appealed.

Analysis

“Under the American rule, the parties to a lawsuit bear the responsibility of paying their own attorney fees. However, the law recognizes certain exceptions to this rule, and attorney fees are recoverable when authorized by statute, when provided by contract, or when justified by special equity.” Ex parte Horn, 718 So.2d 694, 702 (Ala.1998). Ocean Reef asserts that it is entitled to an award of attorney fees pursuant to contract, i.e., section 5(D) of the purchase agreement.

Our supreme court has recognized that, on appellate review of an attorney’s fee awarded pursuant to a contract, we review de novo a trial court’s decision to enforce or its refusal to enforce an unambiguous contract provision, and we review the trial court’s findings of fact on that issue for an abuse of discretion. See, e.g., Classroomdirect.com, LLC v. Draphix, LLC, 992 So.2d 692, 710 (Ala.2008). That is because,

“[i]n Alabama, when the terms of a contract are unambiguous, the contract’s construction and legal effect become a question of law for the court, and when appropriate may be decided by summary judgment. Jehle-Slauson Constr. Co. v. Hood-Rich, Architects and Consulting Engineers, 435 So.2d 716, 720 (Ala.1983) (citations omitted). However, when the terms of a contract are ambiguous in any respect, the determination of the true meaning of the contract is a question of fact for the [fact-fínder]. Hall v. Integon Life Ins. Co., 454 So.2d 1338 (Ala.1984). Whether a contract is ambiguous is a question of law for the court. Hartford [Accident & Indemn. Co. v. Morgan Cnty. Ass’n of Volunteer Firefighters, 454 So.2d 960 (Ala.1984) ].”

Colonial Bank of Alabama v. Coker, 482 So.2d 286, 291 (Ala.1985).

On appeal, Ocean Reef does not assert that section 5(D) is ambiguous, and we conclude that it is not. We, therefore, must determine if Ocean Reef established its entitlement to an award of attorney fees under the express language of section 5(D) of the purchase agreement. In order to recover attorney fees under that express language, Ocean Reef must have established (1) that the dispute, i.e., the Alabama action, arose under the purchase agreement, (2) that Ocean Reef was the prevailing party in the dispute, and (3) that the attorney fees Ocean Reef sought to recover were incurred as the “costs of enforcement.” We conclude that, even assuming that Ocean Reef established the first two factors, an issue we need not decide, it failed to establish the third factor, i.e., that the attorney fees it was seeking to recover were incurred to enforce the purchase agreement.

Although we find no Alabama cases directly addressing the issue as we have phrased it, we find Baumann v. Long Cove Club Owners Ass’n, 380 S.C. 131, 668 S.E.2d 420 (Ct.App.2008), persuasive. In Baumann, supra, members of a homeowners’ association filed a declaratory-judgment action seeking to compel the association to comply with its covenants. 380 S.C. at 136, 668 S.E.2d at 423. After a bench trial, the trial court dismissed the homeowners’ complaint with prejudice. Id. The homeowners filed a postjudgment motion, pursuant to Rule 59, Ala. R. Civ. P., and the association filed a motion for attorney fees; the trial court denied both motions. 380 S.C. at 136-37, 668 S.E.2d at 423. The association appealed the denial of its motion for attorney fees.

On appeal, the association asserted that it was entitled to an award of attorney fees by virtue of the following covenants:

‘Section 1. Who May Enforce Generally. In the event of a violation or breach of any of the affirmative obligations or restrictions contained in this Declaration by any Property Owner or agent of such Property Owner, the Association or any other property owners or any of them jointly and severally shall have the right to proceed at law or in equity to compel a compliance with the terms hereof or to prevent the violation or breach in any event.
‘Section 2. Enforcement. In addition to the foregoing, the Association or a Property Owner shall have the right to proceed at law or in equity to compel compliance to the terms hereof or to prevent the violation or breach in any event.
‘“In the event of any litigation, the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs of such litigation. If the violation is not expeditiously terminated, the Association may engage legal counsel ... to enforce these covenants. Violators shall be obligated to reimburse the Association in full for all its direct and indirect costs, including but not limited to legal fees incurred by the Association in maintaining compliance with these covenants.’ ”

380 S.C. at 135, 668 S.E.2d at 422-23 (emphasis omitted). The South Carolina Court of Appeals, however, concluded that the covenants allowed recovery of attorney fees only against “ ‘ “violators” of the covenants.’” 380 S.C. at 139, 668 S.E.2d at 425 (quoting Queen’s Grant II Horizontal Prof. Regime v. Greenwood Dev. Corp., 368 S.C. 342, 375, 628 S.E.2d 902, 920 (Ct.App.2006)). Because the association had not alleged or shown that the homeowners were in violation of any covenants, the court concluded that the association had no contractual right to an award of attorney fees. Id. See also Willow Lake Residential Ass’n v. Juliano, 80 So.3d 226, 242 (Ala.Civ.App.2010) (recognizing that a homeowners’ association was entitled to recover, pursuant to contract, attorney fees incurred in prosecuting its counterclaim against a homeowner to enforce restrictive covenants; the association in Willow Lake, however, did not seek to recover those attorney fees it had incurred in defending against claims asserted against the association by the homeowner); Austin Apparel, Inc. v. Bank of Prattville, 872 So.2d 158, 166 (Ala.Civ.App.2003) (recognizing that a mortgagee may recover attorney fees incurred in the enforcement of the mortgage when the mortgage contract so states but recognizing that, in that case, the contract provision further authorized recovery of attorney fees “only in the event of, and from the proceeds derived from, a foreclosure of th[e] mortgage”); Tomlinson v. G.E. Capital Dealer Distributor Fin., Inc., 646 So.2d 139, 141 (Ala.Civ.App.1994) (recognizing that a lessor was not entitled to an award of attorney fees and costs for its defense of a lessee’s complaint sounding in tort because the defense of a tort could not be part of the “‘en-forc[ement of] any of the terms, conditions, or provisions of th[e] lease’ ” as required for an award of attorney fees and costs under the parties’ lease agreement); and Eubanks & Eubanks, Inc. v. Colonial Pac. Leasing, 757 So.2d 437, 442 (Ala.Civ.App.1999) (noting that the lease provision at issue in Tomlinson, supra, “provided for the recovery of fees incurred by the lessor in ‘enforcing’ the terms of that lease agreement, which can be read as encompassing only offensive claims”).

Like the association in Baumann, supra, Ocean Reef did not initiate the Alabama action and did not assert in that action that Maddox had violated any of the provisions of the purchase agreement. Additionally, as in Eubanks & Eubanks, supra, section 5(D) of the parties’ purchase agreement authorizes recovery of attorney fees incurred in the enforcement of that agreement; in the Alabama action, Ocean Reef never sought to enforce any aspect of that agreement. Black’s Law Dictionary defines “enforcement” to mean “[t]he act or process of compelling compliance with a law, mandate, command, decree, or agreement.” Black’s Law Dictionary 608 (9th ed. 2009). Because Ocean Reef asserted only that the Alabama action must be dismissed, we cannot conclude that it ever sought in that action to compel Maddox to comply with the terms of the purchase agreement, i.e., that it ever sought to enforce the purchase agreement, as required by the express language of section 5(D).

“A contract ‘ “ ‘must be given effect, if at all, according to its plain and inescapable meaning.’ ” ’ James A. Head & Co. v. Rolling, 265 Ala. 328, 338, 90 So.2d 828, 836 (1956) (quoting Oates v. Lee, 222 Ala. 506, 507, 133 So. 44, 45 (1931), quoting in turn Union Central Relief Ass’n v. Thomas, 213 Ala. 666, 667, 106 So. 133, 134 (1925)). Moreover, where the terms of a contract are ‘plain and unambiguous, there is no room for interpretation, and the parties thereto “may stand upon the letter” of the contract.’ Dunlap v. Macke, 233 Ala. 297, 300, 171 So. 721, 724 (1937).”

Home v. TGM Assocs., L.P., 56 So.3d 615, 622 (Ala.2010).

Ocean Reef construes section 5(D) as requiring only two factors: (1) that “the case must concern an ‘event or a dispute under this Agreement’ ” and (2) that “Ocean Reef [must] be the ‘prevailing party.’ ” The terms of section 5(D), however, are unambiguous, and that provision authorizes only the recovery of a prevailing party’s “costs of enforcement, including reasonable attorney fees.” (Emphasis added.) We must give effect to the unambiguous terms of the parties’ agreement.

Ocean Reef relies on Hilliard v. Brown, 103 Ala. 318, 15 So. 605 (1894), and Pritchard v. Fowler, 146 Ala. 187, 40 So. 955 (1906), in support of its argument; however, both of those cases involved an award of costs made pursuant to a statute rather than an award of attorney fees made pursuant to a contract. Ocean Reef further relies on Bay Financial Savings Bank, F.S.B. v. Hook, 648 So.2d 305 (Fla.Dist.Ct.App.1995), for the premise that the defense of res judicata “does not necessarily avert an award of attorney’s fees.” Id. at 307. Bay Financial, however, addresses a Florida statute that authorized an award of reasonable attorney fees “ ‘in any civil action in which the court finds that there was a complete absence of a justicia-ble issue of either law or fact raised by the complaint or defense of the losing party.’ ” Id. at 306 n. 1 (quoting Florida Stat. § 57.105(1) (1993)). The current version of that statute, however, does not aid Ocean Reef in its claim for an award of attorney fees pursuant to section 5(D) of the purchase agreement. Additionally, because Ocean Reef asserts for the first time on appeal, and for the first time in its reply brief, that it is entitled to an award pursuant to § 57.105(1), that argument is not properly before this court. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”). See also Kyser v. Harrison, 908 So.2d 914, 917 (Ala.2005) (“We note the ‘well-established principle of appellate review that we will not consider an issue not raised in an appellate’s initial brief, but raised only in its reply brief.’ ” (quoting Brown v. St. Vincent’s Hosp., 899 So.2d 227, 234 (Ala.2004))).

The terms of section 5(D) of the purchase agreement are plain and unambiguous when applied to the issue before this court, and it cannot be disputed that, in the Alabama action, the attorney fees Ocean Reef sought to recover were not incurred in enforcing the purchase agreement or any of Ocean Reefs rights thereunder. As a result, we conclude that Ocean Reef was not entitled to an award of attorney fees pursuant to the purchase agreement. The trial court’s judgment is affirmed, although our affirmance is premised on a different basis than that relied on by the trial court. See Verchot v. General Motors Corp., 812 So.2d 296, 305 (Ala.2001) (“ ‘We can affirm a judgment on a basis not asserted to the trial court, and we can affirm a judgment if we disagree with the reasoning of the trial court in entering the judgment, as long as the judgment itself is proper.’ ” (quoting Progressive Specialty Ins. Co. v. Hammonds, 551 So.2d 333, 337 (Ala.1989))).

AFFIRMED.

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

      . Florida Stat. § 57.105 has been amended since the decision in Bay Financial was issued. In its current form, § 57.105(1) provides, in pertinent part:
      "[T]he court shall award a reasonable attorney’s fee ... at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
      “(a) Was not supported by the material facts necessary to establish the claim or defense; or
      “(b) Would not be supported by the application of then-existing law to those material facts.”