author: MOORE, Judge. THOMAS, Judge,

text:
    Carolyn WILLIAMS v. VALLEY VIEW HEALTH AND REHABILITATION, LLC.
    2090366.
    Court of Civil Appeals of Alabama.
    Sept. 10, 2010.
    Certiorari Denied Dec. 10, 2010 Alabama Supreme Court 1091763.

      Timothy A. Hughes, Birmingham, for appellant.
    Tom Burgess and Ethan R. Dettling of Burgess & Associates, L.L.C., Birmingham, for appellee.
   MOORE, Judge.

Carolyn Williams appeals from a summary judgment entered by the Limestone Circuit Court in favor of Valley View Health and Rehabilitation, LLC (“Valley View”), on Williams’s workers’ compensation claim. We reverse.

While working as a licensed practical nurse for Valley View, Williams suffered an asthma attack in the early morning hours of September 21, 2005. Williams contended at the time that she had suffered a reaction to certain chemicals used by Valley View to strip and wax its floors that morning. Williams filed a complaint against Valley View on June 7, 2007. In that complaint, Williams alleged that she was entitled to workers’ compensation benefits on account of “injuries” arising out of and in the course of her employment at Valley View. Williams further asserted that those injuries had resulted from an “incident” occurring on September 20, 2005, of which Valley View “had prompt and immediate notice.”

Valley View subsequently filed a motion for a summary judgment in which it contended that Williams could not recover any workers’ compensation benefits because she could not produce substantial evidence indicating that she had contracted an occupational disease. Williams responded that her asthmatic attack could be considered an occupational disease for a variety of reasons. On September 8, 2008, the trial court entered a judgment granting Valley View’s motion for a summary judgment without entering any findings of fact or conclusions of law. On October 6, 2008, Williams filed a “motion to reconsider” the judgment, arguing that she had never filed a claim asserting that she had contracted an occupational disease and that the trial court should consider the merits of her claim that she had sustained an accidental injury. That motion was denied by operation of law on January 5, 2009, see Rule 59.1, Ala. R. Civ. P., and Williams appealed. This court reversed the judgment because it did not include findings of fact and conclusions of law as required by Ala.Code 1975, § 25-5-88. See Williams v. Valley View Health & Rehabilitation, LLC, 36 So.3d 561, 562 (Ala.Civ.App.2009). On remand, the trial court entered a summary judgment that complied with § 25-5-88, and Williams again filed a postjudgment motion restating her argument that her injury was the result of an accident for which she was entitled to compensation. The trial court again denied her post-judgment motion, prompting the instant appeal.

On appeal, Williams argues, among other issues, that the trial court erred in entering a summary judgment in favor of Valley View without considering her accidental-injury claim. We agree. In her complaint, Williams clearly asserted a claim for benefits pursuant to Article 3 of the Alabama Workers’ Compensation Act (“the Act”), Ala.Code 1975, § 25-5-1 et seq., specifically, Ala.Code 1975, §§ 25-5-50 through 25-5-93, which Code sections apply to personal injuries that result from an accident arising out of and in the course of a worker’s employment. See Ala.Code 1975, § 25-5-51. The law has long treated asthmatic episodes and similar adverse reactions to a one-time work-related chemical exposure as accidental injuries. See Kane v. South Central Bell Tel. Co., 368 So.2d 3 (Ala.1979); New River Coal Co. v. Files, 215 Ala. 64, 109 So. 360 (1926); and B.F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37 (Civ.App.1971). Williams alleged in her complaint that she had sustained “injuries” due to a specific incident occurring on a specific date, which would bring her claim within Article 3 of the Act. As a condition precedent to recovery of workers’ compensation benefits under Article 3, a worker who sustains such an accidental injury must provide the employer with proper notice of the circumstances of the injury, see Ala.Code 1975, § 25-5-78, which Williams alleged she had done.

Williams did not allege any claim under Article 4 of the Act, which applies to contractions of occupational disease. See Ala.Code 1975, §§ 25-5-110 though 25-5-123. Article 4 applies only when a worker alleges that he or she acquired a disease “caused by a hazard recognized as peculiar to a particular trade, process, occupation, or employment as a direct result of exposure, over a period of time, to the normal working conditions of the trade, process, occupation, or employment.” Ala.Code 1975, § 25-5-110(1). Williams did not assert that she had contracted asthma due to long-term exposure to the ordinary working conditions in her employment at Valley View. Moreover, the notice requirement does not apply to an occupational-disease claim. Thomas v. Gold Kist, Inc., 628 So.2d 864 (Ala.Civ.App.1993); and Edmonds Indus. Coatings, Inc. v. Lolley, 893 So.2d 1197 (Ala.Civ.App.2004). By averring that she had notified Valley View of her injuries, Williams indicated that she was not seeking benefits under Article 4.

The party moving for a summary judgment bears the burden of “‘submitting affirmative evidence that negates an essential element in the nonmovant’s claim or, assuming discovery has been completed, by demonstrating to the trial court that the nonmovant’s evidence is insufficient to establish an essential element of the nonmovant’s claim.’ ” Ex parte Gen eral Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)) (some emphasis original; some emphasis added). In order to obtain a summary judgment as to the complaint filed by Williams, Valley View bore the burden of either presenting evidence negating an essential element of Williams’s claim for benefits based on an accidental injury or proving that Williams could not present sufficient evidence to establish that claim. Valley View did not attempt to make a prima facie showing of its right to a judgment on Williams’s accidental-injury claim. Instead, in its motion for a summary judgment, Valley View argued solely that Williams could not recover benefits under Article 4 of the Act, a claim Williams had not even made in her complaint. As a result, the burden never shifted to Williams to present substantial evidence of the compensability of her asthmatic condition as an accidental injury. See Ex parte Alabama Dep’t of Transp., 764 So.2d 1263, 1266 (Ala.2000) (“The mov-ant must make a prima facie showing that there are no genuine issues of material fact and that he [or she] is entitled to a judgment as a matter of law.... If the movant makes this showing, the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by presenting ‘substantial evidence’ creating a genuine issue of material fact.”).

In her response to the summary-judgment motion, Williams argued solely that her claim could be compensable under Article 4. In her timely postjudgment motions, Williams pointed out that, even if the trial court had properly granted Valley View a summary judgment as to an unstated occupational-disease claim, she still maintained her accidental-injury claim. Arguably, that contention raised a new legal issue for the trial court’s consideration. “ ‘ “[A] trial court has the discretion to consider a new legal argument in a post-judgment motion, but is not required to do so.” ’ ” Espinoza v. Rudolph, 46 So.3d 403, 416 (Ala.2010) (quoting Special Assets, L.L.C. v. Chase Home Fin., L.L.C., 991 So.2d 668, 678 (Ala.2007), quoting in turn Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369 (Ala.1988)). When a trial court declines to consider a new legal argument advanced in a postjudgment motion, its decision to decline to consider that argument will be reversed only if the trial court exceeded its discretion. Green Tree, 525 So.2d at 1370.

Under the peculiar facts of this case, we believe that the trial court exceeded its discretion when it refused to consider the accidental-injury claim asserted in Williams’s complaint. That claim had been properly asserted by Williams as the sole basis for her recovering workers’ compensation benefits against Valley View. Although the parties later disputed the com-pensability of the asthmatic attack as an occupational disease, Williams never abandoned her accidental-injury claim and Valley View never proved its right to a judgment on that claim. Therefore, at best, Valley View obtained only a partial summary judgment, leaving for adjudication the accidental-injury claim. Williams would be severely prejudiced if her accidental-injury claim is foreclosed without any consideration of its merits. On the other hand, Valley View would suffer no prejudice if the claim is properly adjudicated because it was properly and timely notified of the claim. To avoid any injustice, the judgment of the trial court is reversed, and the cause is remanded for further proceedings relating to the accidental-injury claim.

REVERSED AND REMANDED.

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

THOMAS, J., dissents, with writing.

THOMAS, Judge,

dissenting.

I respectfully dissent. Carolyn Williams filed a complaint in the trial court alleging that,

“[o]n or about the 20th day of September, 2005, while engaged in the business of [Valley View Health and Rehabilitation, LLC,] and acting within the line and scope of her employment, [Williams] received injuries arising out of and in the course of her employment at [Valley View], ... resulting in a permanent total disability as a result of said incident. Said injuries have proximately caused, and continue to cause, [Williams] to suffer Permanent and Total disability and medical expenses compensable under the Workers’ Compensation Act of Alabama.
“[Williams] avers that [Valley View] had prompt and immediate notice of said accident and that [Valley View] has properly paid [Williams] workers’ compensation benefits from approximately the date of the incident to the present.”

Williams’s complaint contained only a single claim — one for compensation under the Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala.Code 1975. Williams did not. specify under which provisions of the Act she had brought her claim. Valley View Health and Rehabilitation, LLC, answered Williams’s complaint, denying Williams’s claim that she was entitled to benefits under the Act.

On July 7, 2008, Valley View moved the trial court for a summary judgment. In its motion, Valley View characterized Williams’s claim as one based on an alleged injury from an occupational disease, as defined by § 25-5-110(1), Ala.Code 1975. Valley View then argued that summary judgment was appropriate because Williams had not presented substantial evidence indicating that Williams’s injury was sufficiently connected to her employment at Valley View.

Williams filed a response to Valley View’s motion for a summary judgment. In her filing, Williams did more than simply respond to Valley View’s argument that the trial court should enter a summary judgment in its favor. Williams also argued that the trial court should enter a summary judgment in her favor. In her motion for a summary judgment, Williams argued that she had “presented substantial evidence to support her contention that her injury is an occupational disease .... ” (Emphasis added.) Williams cited Dodson v. Atrax Division of Wallace-Murray Corp., 437 So.2d 1294 (Ala.Civ.App.1983), for the proposition that, if any injury “leaves a residual affect in the employee’s respiratory system that creates a chronic, continuing sensitivity or susceptibility to re-injury, the disability resulting from the sensitization will be compensable under the Occupational Disease Article.” Williams further asserted, in arguing for a summary judgment in her favor, that “[t]he undisputed material facts show [Williams’s] occupational disease to be chronic asthma. This chronic asthma condition has been determined an occupational disease by Alabama Courts.” Thus, Williams herself characterized the claim in her complaint as a claim for compensation for injuries resulting from an occupational disease. Williams did not make any argument that her injury was compensable as an accidental injury or that she had asserted a claim for an accidental injury, nor did Williams argue that Valley View had mis-characterized the claim that she had made in her complaint.

On September 8, 2008, the trial court entered a summary judgment in favor of Valley View. Williams then filed a post-judgment motion, arguing that she had claimed in her complaint that her injury resulted from an accident and that, accordingly, her injury should not be considered an occupational disease. Williams did not advance this legal argument in her motion for a summary judgment or in her response to Valley View’s motion for a summary judgment. The trial court denied her postjudgment motion, and Williams appealed to this court.

This court reversed the trial court’s summary judgment and remanded the cause to the trial court for it to enter a judgment containing findings of facts and conclusions of law, pursuant to § 25-5-88, Ala.Code 1975. See Williams v. Valley View Health & Rehabilitation, LLC, 36 So.3d 561, 562-63 (Ala.Civ.App.2009). The trial court subsequently entered a summary judgment that complied with § 25-5-88, and Williams filed a postjudgment motion, restating her argument that her injury was the result of an accident and should not be considered an occupational disease. The trial court denied her post-judgment motion, and Williams again appealed to this court.

Williams argues on appeal, and the majority opinion holds, that the trial court erred in entering a summary judgment in favor of Valley View because Williams had claimed in her complaint that her injury was the result of an accident; therefore, the majority concludes, summary judgment was not proper even if the trial court agreed with Valley View that Williams had not presented substantial evidence indicating that she suffered from an occupational disease.

However, in her motion for a summary judgment and in opposition to Valley View’s motion for a summary judgment, Williams argued extensively that her injury was an occupational disease. Williams did not present any argument in her motion or in her response that her injury was the result of an accident as opposed to an occupational disease or that her complaint had stated a claim relating to an accidental injury. In fact, Williams expressly stated in her motion for a summary judgment and in her response to Valley View’s motion for a summary judgment that she had “presented substantial evidence to support her contention that her injury is an occupational disease” and that her injury, chronic asthma, “has been determined an occupational disease by Alabama Courts.” The first time Williams advanced the argument that summary judgment in favor of Valley View was improper because she had claimed in her complaint an injury resulting from an accident and not an occupational disease was in her postjudgment motion.

When ruling on a motion for a summary judgment “ ‘ “[t]he trial court can consider only that material before it at the time of submission of [a] motion [for a summary judgment]” and ... “[a]ny material filed after submission of the motion comes too late.” ’ ” Harbor Village Home Ctr., Inc. v. Thomas, 882 So.2d 811, 818 (Ala.2003)(quoting Mardis v. Ford Motor Credit Co., 642 So.2d 701, 705 (Ala.1994), quoting in turn Guess v. Snyder, 378 So.2d 691, 692 (Ala.1979)). Accordingly, when considering the correctness of a summary judgment on appeal, “the trial court cannot be reversed on any ground or argument not presented for or against the motion.” Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000). An “appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment.” Ex parte Ryals, 773 So.2d at 1013 (citing Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992))(emphasis omitted).

Williams did not present any argument to the trial court before or at the time of the submission of the motions for a summary judgment that her injury was the result of an accident. In fact, Williams argued extensively that her injury was the result of an occupational disease and that the trial court should enter a summary judgment in her favor based on an occupational-disease theory, stating that she had “presented substantial evidence to support her contention that her injury is an occupational disease.” Because Williams characterized her claim in her motion for a summary judgment as an occupational-disease claim and because she did not present any argument to the trial court before its entry of a summary judgment that her injury was the result of an accident, I would hold that the trial court did not in err in not considering that argument when it entered a summary judgment in favor of Valley View.

Williams did present an argument to the trial court based on an accidental-injury theory in her postjudgment motion. “ ‘ “[A] trial court has the discretion to consider a new legal argument in a post-judgment motion, but is not required to do so.” ’ ” Espinoza v. Rudolph, 46 So.3d 403, 416 (Ala.2010) (quoting Special Assets, L.L.C. v. Chase Home Fin., L.L.C., 991 So.2d 668, 678 (Ala.2007), quoting in turn Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369 (Ala.1988)). When a trial court declines to consider a new legal argument advanced in a postjudgment motion, its decision to decline to consider that argument will be reversed only if the trial court exceeded its discretion. Green Tree, 525 So.2d at 1370.

In this case, Williams first advanced her legal argument that she had claimed an injury resulting from an accident and not an occupational disease in her post-judgment motion. Therefore, the trial court had discretion whether to consider that argument. Espinoza, 46 So.3d at 416. Williams did not offer any justification for why she did not advance her argument until after the entry of the summary judgment. Thus, the trial court did not exceed its discretion when it declined to consider Williams’s argument. See Espinoza, 46 So.3d at 416; Special Assets, 991 So.2d at 677 n. 13; and Green Tree, 525 So.2d at 1370. The majority opinion holds that the trial court exceeded its discretion by not considering Williams’s accidental-injury theory advanced in her post-judgment motion. The majority opinion determines this by weighing the potential prejudice to the parties and whether an injustice might result. However, the cases regarding a trial court’s consideration of a new legal argument raised for the first time in a postjudgment motion make no mention of the use of these factors in determining whether a trial court has exceeded its discretion. See Espinoza, supra; Special Assets, supra; and Green Tree, supra. Instead, those cases focus on whether a party provided sufficient justification for its delay in advancing the argument.

Because Williams characterized her claim in her summary-judgment motion as an occupational-disease claim, because Williams first argued that her injury resulted from an accident instead of an occupational disease in her postjudgment motion, and because Williams did not provide any justification for why she did not advance this argument prior to the filing of her postjudgment motion, I would affirm the judgment of the trial court.

      . Section 25-5-110(1), Ala.Code 1975, defines an occupational disease as follows:
      "Occupational Disease. A disease arising out of and in the course of employment, including occupational pneumoconiosis and occupational exposure to radiation as defined in subdivisions (2) and (3), respectively, of this section, which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer. A disease, including, but not limited to, loss of hearing due to noise, shall be deemed an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation, or employment as a direct result of exposure, over a period of time, to the normal working conditions of the trade, process, occupation, or employment.”

      . I cannot agree with the majority opinion’s assertion that Williams "clearly” stated a claim for relief based on an accidental-injury theory. 64 So.3d at 640. If Williams was indeed requesting relief under an accidental-injury theory, it would have been a simple matter to include that legal argument in her opposition to Valley View’s motion for a summary judgment or in her own motion for a summary judgment. Instead, Williams expressly argued that her' injury should be considered an occupational disease.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    David A. DUNIGAN v. Tamara H. BRUNING f/k/a Tamara H. Dunigan.
    2081150.
    Court of Civil Appeals of Alabama.
    Oct. 22, 2010.

      David G. Flack, Montgomery, for appellant.
   On Application for Rehearing

THOMAS, Judge.

The opinion of August 6, 2010, is withdrawn, and the following is substituted therefor.

David A. Dunigan (“the father”) and Tamara H. Bruning f/k/a Tamara H. Dunigan (“the mother”) were divorced in January 1992. Pursuant to the 1992 divorce judgment, the mother was awarded custody of the parties’ two children, a daughter and a son. In March 2003, the parties agreed to a modification of the 1992 divorce judgment, and the trial court entered a judgment adopting the parties’ modification agreement. The parties’ agreement modified the visitation provisions of the 1992 judgment, in part because of the distance between the father’s residence in Alabama and the mother’s residence in North Carolina.

The modification agreement provided that the father would have visitation with the son for one week during the Christmas holidays and for the month of July. An additional week of visitation was anticipated, with a preference for the week of Spring Break, but the exact dates of that visitation week were to be arranged by agreement of the parties. Pursuant to the modification agreement, the father’s visitation with the daughter was to be arranged in cooperation with the daughter, taking into account her wishes.

In addition, the modification agreement required both parents to equally share the responsibility for the children’s postminority educational expenses. The agreement set the following requirements for parental responsibility for postminority educational expenses: that the child be a full-time student, that the child maintain a “C” average, that the child be under 23 years of age, that the postminority educational expenses not exceed the cost to attend a state-sponsored university in Alabama, and that the obligation extended only to an undergraduate degree.

Before the parties agreed to the modification of the 1992 divorce judgment, the relationship between the father and the daughter had begun to deteriorate. In November 2002, the daughter, who was 14 years old at that time, informed the father that she did not wish to visit him over the Christmas holidays because she had been “extremely bored” during her three-week visit the previous summer. She explained in her electronic-mail correspondence that she did not want to spend her Christmas holiday “being bored” and that she had other opportunities that were more “physically and/or academically challenging” that she would rather avail herself of instead of visiting with the father. The daughter further referred to visitation laws that she had researched on the Internet, which, according to the information contained in the correspondence, indicated that visitation in Alabama was, depending on the child’s age, often awarded in accordance with the child’s wishes. The daughter closed her correspondence with a request that the topic be discussed only via electronic-mail correspondence.

The daughter did not visit the father during the 2002 Christmas holidays or during the next two visitation periods. In December 2003, the father inquired, via electronic-mail correspondence, whether the daughter would be attending future visits with the father. The daughter responded that “I have decided not to attend any future trips.”

The record indicates that the father and the daughter did not communicate further, other than brief pleasantries, if that, during visitation exchanges when the daughter accompanied the mother when the son came to visit the father. The father said that the daughter answered the telephone at times when he telephoned to speak to the son or to make visitation arrangements with the son and that she did not engage in any sort of conversation with him. Before the daughter started college, which was in August 2006, she telephoned the father on his cellular telephone and, according to him, asked whether he “had her money for college.” The father said that he told the daughter it would be better for him to discuss that matter with the mother and that the daughter then hung up the telephone.

In July 2006, the father filed a petition to modify the 2008 modification judgment, alleging that the daughter’s renouncement of the father’s rights to visitation resulted in a material change of circumstances warranting a modification of the 2003 modification judgment insofar as it required the father to be responsible for one-half of the daughter’s postminority educational expenses. The father further sought a modification of his child-support obligation for the son because the daughter had reached the age of majority and was no longer entitled to child support. The mother answered and brought a counterclaim seeking to enforce the father’s obligations to pay his portion of the expenses incurred for the son’s orthodontic treatment and to pay his one-half of the daughter’s college expenses. At trial, the parties stipulated to the amount of child support the father would pay for the son and to certain credits the father would receive against his obligation to pay postminority educational support, if that obligation were not terminated. After the trial, the trial court entered a judgment modifying the amount of the father’s child-support obligation per the parties’ stipulation, denying the father’s petition to terminate the father’s duty to pay postminority educational support, calculating the father’s postminority-educational-support arrearage, applying certain credits against the postminority-educational-support arrearage, and awarding the mother an attorney fee in the amount of $2,000.

The father filed a postjudgment motion, after which the trial court amended its judgment to include conditions on the duty of the parents to pay postminority educational support. The amended judgment indicated that it was not intended to replace the provisions regarding postminority educational support contained in the 1992 divorce judgment but, rather, that it was adding conditions to that judgment. The trial court did not refer to the 2003 modification judgment, in which the parties had specifically addressed the conditions applicable to the parties’ postminority-educational-support obligations. The amended judgment reads, in pertinent part:

“1. Pursuant to the provisions of Paragraph 13 of the original Decree of Divorce entered by the Court on February 13, 1992, the Court finds that the [father] is required to continue to be responsible for one-half (½) of the necessary college expenses for [the daughter] as further set out in Paragraph 13 of the Decree of Divorce, but, in addition, this obligation for both the [parents] to pay one-half of the necessary college expenses is conditioned upon the following:
“a. That the [daughter] is required to maintain at least a ‘C’ average;
“b. That she be a full-time student at the college or university that she attends; and
“c. That the obligation of both the [parents] to pay college expenses for [the daughter] will expire or end upon [the daughter’s] reaching the age of twenty-three (23) years except for unforeseen mitigating circumstances.
“d. That the obligation of either parent to pay college expenses for the benefit of [the daughter] is conditioned upon [the daughter’s] providing full and complete information on a timely basis to each parent as to the creation of an obligation on her part or the incurring of a necessary college expense, such as, tuition, room, board, books and fees. This would also require [the daughter] to furnish information to each of the parents as to prospective courses and expenses to be incurred in advance of actually incurring same to the fullest extent possible. Both the [parents] will be responsible for paying the appropriate entity or institution requiring reimbursement or they will be required to reimburse or pay [the daughter] in advance or afterwards, as the case may be, for the payment of any such expense for which she has given notice or which she has paid herself.”

The first three conditions are restatements of the conditions contained in the modification judgment, with the exception of the phrase “except for unforseen mitigating circumstances,” which could possibly extend the father’s obligation to pay postmi-nority educational support beyond the daughter’s 23d birthday. The amended judgment added the requirement that the daughter provide full and complete information to her parents regarding tuition, room and board, and fees and to keep her parents apprised of prospective courses and other expenses to be incurred. The father did not file a postjudgment motion directed to the amended judgment, and he timely appealed.

On appeal, the father raises six arguments. The father’s chief argument is that the trial court erred in not terminating his obligation to pay postminority educational support for the daughter because, he contends, her “repudiation” of her relationship with him should have resulted in a determination that she was no longer entitled to receive such support. The father also argues that the trial court improperly excluded any evidence regarding the undue hardship the father claimed the post-minority-educational-support obligation placed upon him. The father further argues that the trial court erred in failing to award him two credits against his postmi-nority-educational-support obligation: one for $7,018, which represented one semester of tuition, books, and fees incurred by the daughter while attending the university as a part-time student and another for tax credits received by the mother. Regarding the trial court’s imposition of conditions on the postminority-educational-support obligation in the amended judgment, the father argues that the trial court erred by modifying the 2003 modification judgment in favor of the daughter without a request to do so. The father also asserts that the trial court erred in awarding the mother a money judgment for the repayment of college expenses incurred by the daughter. Finally, the father argues that the trial court erred in awarding the mother an attorney fee.

Because the trial court entered its judgment in this case after considering evidence presented ore tenus, we presume any factual findings based on that evidence to be correct, unless those findings are so unsupported by the evidence as to be plainly and palpably wrong. Simpkins v. Simpkins, 595 So.2d 493, 495 (Ala.Civ.App.1991). Furthermore, as in all cases in which a trial court fails to make specific findings of fact, we “ ‘will assume that the trial judge made those findings necessary to support the judgment.’” Fielding v. Fielding, 24 So.3d 468, 472 (Ala.Civ.App. 2009) (quoting Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992)).

Notably, this court has held that

“the principles of Ex parte Bayliss, 550 So.2d 986 (Ala.1989), do not generally apply in the context of a parent’s contractual undertaking to provide postmi-nority support to minor children that is incorporated into a binding judgment. As we ‘specifically point[ed] out’ in Simpkins v. Simpkins, 595 So.2d 493, 495 (Ala.Civ.App.1991), which involved a petition to modify a contractual undertaking similar to that entered into by the parties in this case in 2001, ‘this is not a Bayliss fact situation or proceeding.’ Rather, the trial court’s consideration of a petition to modify such an undertaking is governed by the principle that ‘an agreement between the parties fixing child support payments, when incorporated into a judgment, becomes merged into the judgment and thereby loses its contractual nature to the extent that a court of equity has the power to modify the decree when changed circumstances so justify.’ Ralls v. Ralls, 383 So.2d 857, 859 (Ala.Civ.App.1980) [overruled on other grounds by Ex parte Bayliss, 550 So.2d at 994]; see also Wesley v. Wesley, 627 So.2d 441, 444 (Ala.Civ.App.1993) (‘[A]wards of post-secondary child support may be modified, just as other awards of child support are modified.’).”

Thomas v. Campbell, 960 So.2d 694, 697 (Ala.Civ.App.2006) (footnote omitted).

The father first argues that his daughter’s repudiation of her relationship with him, especially after she reached the age of majority, should be considered a basis for termination of his obligation to pay postminority educational support for her benefit. The father relies on cases from other jurisdictions to support his argument that the daughter’s repudiation is a basis upon which the trial court could have terminated his postminority-edu-eational-support obligation. See McKay v. McKay, 644 N.E.2d 164, 168 (Ind.Ct.App.1994) (“The expectation that a parent would ordinarily be inclined to contribute toward his child’s college education (which may be enforced under our laws of dissolution) does not continue, and should not be enforced where an adult child has repudiated his relationship with his parent.”); Reifv. Reif, 426 Pa.Super. 14, 24, 626 A.2d 169, 174-75 (1998) (“Estrangement can operate to relieve or lessen a parent’s duty to pay support toward a college education when that parent has made a good-faith and concerted effort to establish and develop a relationship with his or her child, and the child has unquestionably and willfully rejected the parent’s outstretched hand,” even in certain cases involving a contractual obligation as opposed to a judicially imposed one); Milne v. Milne, 383 Pa.Super. 177, 556 A.2d 854 (1989), abrogated in part by Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992) (expanding the inquiry in postminority-edueational-support cases to include consideration of the relationship between the parent and the child and creating the “estrangement defense”); Cohen v. Schnepf 115 Misc.2d 879, 881, 454 N.Y.S.2d 785, 787 (N.Y.Sup.Ct.1982) (“By admittedly rejecting visitation with his father and by cavalier rejection of paternal identity without consultation with or explanation to petitioner, this 18-year-old ‘adult’ ... has voluntarily asserted his independence from petitioner and has thus forfeited his right to claim support from him.”); and Hambrick v. Prestwood, 382 So.2d 474, 477 (Miss.1980) (stating that the right to postminority educational support “is dependent, not only on the child’s aptitude and qualifications for college, but on whether the child’s behavior toward, and relationship with the father, makes the child worthy of the additional effort and financial burden that will be placed on him”).

Since the inception of judicially imposed postminority educational support, Alabama law has allowed a trial court to consider the relationship between the child and his or her parents and the child’s “responsiveness to parental advice and guidance” when determining whether and to what extent to impose upon a parent the obligation of paying postminority educational support. Ex parte Bayliss, 550 So.2d 986, 987 (Ala.1989). However, this court, the court charged most often with the review of appeals involving postminority educational support, “has repeatedly stated that the existence of a strained relationship between parent and child does not prevent the child from having the opportunity to obtain a college education.” Stinson v. Stinson, 729 So.2d 864, 869 (Ala.Civ.App.1998). In the earliest of postmi-nority-educational-support cases, we held that the lack of familial interaction between a father and his daughter “should not preclude the daughter, in this instance, from having the opportunity to obtain a college education.” Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990). In no instance has this court reversed a trial court’s imposition of postmi-nority educational support solely because the evidence at trial reflected that the relationship between parent and child was so broken as to be a complete impediment to the receipt of such support. But see Penney v. Penney, 785 So.2d 376, 381 (Ala.Civ.App.2000) (reversing a judgment denying postminority educational support on, among other grounds, the trial court’s determination that it rmist consider the relationship between the child and her parents when considering the imposition of postmi-nority educational support). We have affirmed a trial court’s denial of postminority educational support using as partial support for that denial the daughter’s decision to live with her stepfather after the death of the mother and her decision to have little contact with her father and his new family despite the father’s attempts to establish a relationship with the daughter. See Newman v. Newman, 667 So.2d 1362, 1368-69 (Ala.Civ.App.1994). However, our opinion in Newman made clear that, although the trial court could have considered the poor relationship between the father and the daughter, evidence of that poor relationship “alone ... is insufficient to prevent [a child] from receiving assistance in going to college.” Newman, 667 So.2d at 1368; see also West v. West, 875 So.2d 323, 325 (Ala.Civ.App.2003) (affirming the denial of postminority educational support when the evidence failed to indicate whether the child had the “commitment to and aptitude for college” but admonishing the trial court for denying postminority educational support solely on the basis of the poor relationship between the parent and the child).

In the present case, the trial court indicated both at trial and at the hearing on the father’s postjudgment motion that it had determined that the relationship between the father and the daughter was strained even before the father agreed to be obligated to pay for her college education in the agreement merged into the 2003 modification judgment. The trial court must have then concluded that the lack of a relationship between the two could not have been a material change in circumstances warranting the modification or termination of the father’s voluntarily assumed obligation to pay postminority educational support. Based on our standard of review and the fact that the father was required to prove changed circumstances justifying a modification of his postminority-educational-support obligation, see Thomas, 960 So.2d at 697, we cannot disagree with the trial court’s conclusion that the father was not entitled to have his postminority-educational-support obligation terminated merely because the daughter is estranged from him.

The father next argues that the trial court erred by excluding evidence concerning his ability to pay postminority educational support for the daughter. At trial, the father sought to establish that requiring him to pay postminority educational support would pose an undue hardship. See Thrasher, 574 So.2d at 841 (setting out the requirement that postmi-nority educational support not cause undue hardship to the parent). The mother’s counsel objected to questions regarding the father’s income and expenses, stating that the only basis for modification asserted in the father’s petition was that the daughter was estranged from him. The trial court agreed with mother’s counsel’s view of the petition and prohibited the father from presenting evidence to establish undue hardship.

On appeal, the father argues that the issue of his ability to pay was raised by the mother’s counterclaim, in which she argued that the father had failed to pay $6,095 in college expenses incurred by the daughter in contravention of the 2003 modification judgment. The father appears to argue that the mother’s attempt to enforce his postminority-educational-support obligation somehow entitled him to prove that he was unable to pay such support without experiencing undue hardship. However, because the mother’s counterclaim simply sought enforcement of the obligation and not a finding of contempt, to which an inability to pay would have been a defense, we cannot agree that the mother’s counterclaim raised the issue of the father’s ability to pay such that the father was entitled to present evidence to establish undue hardship.

The father further argues that, under Ex parte Bayliss and its progeny, the primary consideration for a trial court considering the imposition of postminority educational support is the financial resources of the parents and the child and that, therefore, his petition to modify necessarily raised the issue of his ability to pay. Ex parte Bayliss, 550 So.2d at 987. However, because the father entered into a voluntary agreement to pay postminority educational support, the principles of Ex parte Bayliss regarding the imposition of post-minority educational support are not applicable to the modification of the father’s obhgation. Thomas, 960 So.2d at 697. Instead, as explained above, the father was required to establish a change of circumstances warranting a modification of his obhgation. The only basis for modification asserted in the petition was the repudiation of the father by the daughter. Thus, we cannot conclude that the issue of the father’s ability to pay without undue hardship was at issue in the proceedings. See Guthery v. Persall, 26 So.3d 1250, 1254 (Ala.Civ.App.2009) (determining that a complaint that included an allegation of fraud was hmited to the fraud-in-the-inducement claim alleged in the complaint and could not be read to include a forgery claim).

Next, the father argues that the trial court erred in faihng to award him certain credits against his obligation to pay postminority educational support. First, the father argues that he was entitled to a credit for $7,018 in college expenses incurred by the daughter for one semester during which the daughter was only a part-time and not a full-time student. Although the evidence established that the daughter had dropped a biology course during her first semester in college, thus making her a part-time student that semester, the father testified on direct examination that he would not have refused to pay the daughter’s college expenses on that basis because, he said, “I understand the first year of college is tough, so a lot of people have a hard time.” The mother also testified that the daughter had had one “bad” semester that, the mother said, the father should not have to be responsible for under the agreement. Later, the mother’s attorney asked the mother if the “bad” semester about which she had testified was the same semester the father had testified about during his testimony; the mother answered that she did not remember. Documentary evidence indicated that the “bad” semester about which the mother testified might have occurred during the daughter’s sophomore year; the daughter admitted that she had failed some classes that semester but had maintained a “C” average. Because the evidence regarding the “bad” semester was so vague and unclear, we cannot hold the trial court in error for determining, as it must have, that the semester that the parents referred to was the same semester — i.e., the daughter’s first semester in college — which the father had testified he would pay for under the agreement despite the daughter’s failure to meet the requirements of the agreement. See Houser v. Gipson, 485 So.2d 738, 739 (Ala.Civ.App.1986) (noting that, when the testimony is vague and conflicting, the resolution of any conflicts in the evidence is the task of the trial court).

The father also argues that he was entitled to a credit equal to half of the tax credits the mother claimed on her tax returns. The information regarding these credits is sparse, although the mother did testify that she received the tax credits. The father, in contravention of Rule 28(a)(10), Ala. R.App. P., cites no legal authority for the proposition that he is entitled to half of the income-tax credits claimed by the mother. Thus, we will not entertain this argument further. Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (stating that “[t]his court will address only those issues properly presented and for which supporting authority has been cited”).

The father next challenges the trial court’s amended judgment insofar as it modified the 2003 modification judgment to remove certain restrictions imposed by that judgment on the obligation to pay postminority educational support. The father fails to make any legal argument in support of reversal on this issue and, again in contravention of Rule 28(a)(10), cites no relevant authority. We therefore decline to consider this issue as well. Asam, 686 So.2d at 1224.

The father next argues that the trial court erred in awarding a money judgment to the mother for the repayment of college expenses incurred by the daughter. He contends that the evidence did not establish that the mother had expended any sum of money to pay for the father’s half of the daughter’s college expenses. In fact, he points out that the daughter’s $20,000 in student loans paid for over half of the college expenses incurred by the daughter. Because the father was required to pay for only half of the daughter’s college expenses, the evidence did not establish that the mother was due any money from the father. Thus, we agree that the trial court improperly awarded the mother a money judgment, and, insofar as it did so, its judgment is reversed. See Wilkinson v. Wilkinson, 42 So.3d 1271, 1280 (Ala.Civ.App.2010) (affirming a trial court’s judgment failing to determine an amount owed to the mother by the father when the mother failed to establish, among other things, that she had repaid any of the older child’s student loans or that she was personally liable for repayment of those loans and, thus, had failed to establish that she contributed funds toward the child’s postminority educational expenses).

Finally, the father argues that the trial court abused its discretion in awarding the mother a $2,000 attorney fee. “We note that the matter of an award for an attorney’s fee in cases such as this is a matter that rests soundly within the discretion of the trial court, which will not be reversed absent abuse of that discretion.” Layfield v. Roberts, 599 So.2d 1169, 1177 (Ala.Civ.App.1991) (citing Snead v. Snead, 526 So.2d 586 (Ala.Civ.App.1988)). “Factors to be considered by the trial court in a modification case in making an award of attorney fees include the earning capacity of the parties, the results of the litigation, and the financial circumstances of the parties.” Amie v. Conrey, 801 So.2d 841, 847 (Ala.Civ.App.2001). The father argues that the mother earns almost twice as much as he does and that the parties would have had to seek modification of the father’s child-support obligation for the son because of the daughter’s attaining the age of majority; thus, he contends, the award of an attorney fee to the mother is, in this case, an abuse of discretion. We disagree.

Although the parties would have been required to institute a modification action to modify the father’s child-support obligation respecting the son, it is clear that the parties easily reached an agreement on the amount of child support due for the son under the child-support guidelines. Thus, although the mother could possibly have incurred some small amount for an attorney fee for the modification of the father’s child-support obligation, the issue litigated in the present case was the father’s attempt to avoid his obligation to pay postminority educational support to the daughter, which he based on legal authority from other states that, although certainly interesting, was inapplicable to the father’s voluntary agreement to pay postminority educational support and was also contrary to Alabama law on the issue. The father was unsuccessful in his endeav- or to avoid his postminority-educational-support obligation, although he did succeed in being awarded certain credits, one of which the mother had stipulated he was due to receive. Thus, despite the disparity of the parties’ incomes, which does support the father’s argument against the award of an attorney fee, the remaining factors support the trial court’s conclusion that the mother was due an award of an attorney fee. Thus, the trial court’s award of an attorney fee to the mother is affirmed.

In conclusion, the trial court’s judgment is reversed insofar as it awarded a money judgment in favor of the mother because the evidence at trial did not establish that the mother had paid or was liable for any of the father’s portion of the postminority educational expenses incurred by the daughter. In all other respects, the trial court’s judgment is affirmed.

APPLICATION OVERRULED; OPINION OF AUGUST 6, 2010, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

      . The mother's original counterclaim requested that the father be held in contempt for failing to pay his obligations under the 2003 modification judgment; however, the clerk’s office returned the mother's counterclaim with a request that the mother pay the "contempt fee.” The mother then filed an amended counterclaim that did not include a request that the father be held in contempt.


author: LYONS, Justice.

text:
    Ex parte David A. DUNIGAN. (In re David A. Dunigan v. Tamara H. Bruning f/k/a Tamara H. Dunigan).
    1100154.
    Supreme Court of Alabama.
    Dec. 10, 2010.
    David G. Flack, Montgomery, for petitioner.
   LYONS, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

COBB, C.J., and STUART, BOLIN, and MURDOCK, JJ., concur.


author: MOORE, Judge. THOMPSON, Presiding Judge,

text:
    Ex parte L.N.K. (In re B.E.H., Sr. v. L.N.K.).
    2090965.
    Court of Civil Appeals of Alabama.
    Dec. 3, 2010.
    William T. Fortune, Jr., and Charity M. Davis, Birmingham, for petitioner.
    Julia Smeds Roth and Heather N. Hudson of Eyster, Key, Tubb, Roth, Middleton & Adams, LLP, Decatur, for appellee.
   MOORE, Judge.

L.N.K. (“the mother”) petitions this court for a writ of mandamus directing the Shelby Circuit Court (“the circuit court”) to dismiss the petition for custody of B.E.H. (“the child”) filed by B.E.H., Sr.

Procedural History

Based on the materials submitted to this court and the stipulations of the parties, it appears that, in 2003, the Jefferson Family Court entered a judgment establishing B.E.H., Sr., as the father of the child and ordering him to pay child support. That judgment impliedly granted the mother custody of the child. See M.R.J. v. D.R.B., 17 So.3d 683, 686 (Ala.Civ.App.2009) (citing T.B. v. C.D.L., 910 So.2d 794 (Ala.Civ.App.2005)). On February 4, 2010, B.E.H., Sr. (“the father”), filed a petition in the circuit court seeking to gain legal and physical custody of the child and to end his obligation to pay child support. In that petition, the father alleged that the mother and the child reside in Pelham, which is located in Shelby County.

On April 22, 2010, the mother filed a contempt petition in the Jefferson Family Court, alleging the failure of the father to pay child support, including certain medical expenses of the child. Five days later, the mother filed in the circuit court a motion to dismiss or, in the alternative, to transfer the father’s action to the Jefferson Family Court. The mother argued in her motion that the Jefferson Family Court retained jurisdiction over the custody and child-support issues. The mother later withdrew her motion to transfer the action and submitted her motion to dismiss to the circuit court. On June 2, 2010, the circuit court denied the mother’s motion to dismiss.

On July 14, 2010, the mother filed a petition for a writ of mandamus with this court, arguing that the circuit court lacks subject-matter jurisdiction over the father’s petition. On August 6, 2010, this court granted a motion to stay the proceedings in the circuit court. Thereafter, the father submitted his answer and the parties submitted their briefs. Upon review of those briefs, this court dissolved the stay on October 22, 2010. This court now decides that the petition for a writ of mandamus is due to be denied.

Discussion

“Subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Punturo, [928] So.2d [1030] (Ala.2002); Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000).
“ ‘ “A writ of mandamus is an extraordinary remedy that requires the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.” ’
“Ex parte Bruner, 749 So.2d 437, 438 (Ala.1999) (quoting Ex parte McNaughton, 728 So.2d 592, 594 (Ala.1998)).”

Ex parte K.L.P., 868 So.2d 454, 455 (Ala.Civ.App.2003).

The mother does not dispute that the circuit court has plenary jurisdiction over equitable matters such as child-custody and child-support cases. See § 12-11-31, Ala.Code 1975. The mother instead relies on the rule of law that, once a court of this state establishes jurisdiction over those matters, jurisdiction remains in that court unless and until that jurisdiction is relinquished. See Rush v. Simpson, 373 So.2d 1105, 1108 (Ala.Civ.App.1979). Based on that rule of law, the mother maintains that, because the Jefferson Family Court first addressed child custody and child support in its 2003 judgment, it retained jurisdiction over those matters in 2010 to the exclusion of the circuit court. Hence, the mother argues, only the Jefferson Family Court may decide the issues raised in the father’s petition. The mother contends, therefore, that the circuit court erred in denying her motion to dismiss for lack of subject-matter jurisdiction.

The record before us shows that, in 2003, the Jefferson Family Court decided the custody and child-support issues as part of a paternity proceeding involving the child, who was born out of wedlock to the mother and the father. At that time, only juvenile courts could adjudicate such paternity cases. See former § 12-15-31(2), Ala.Code 1975 (providing that juvenile courts shall have exclusive original jurisdiction “[i]n proceedings to establish paternity of a child born out of wedlock”). As part of a paternity proceeding, a juvenile court also could decide custody and child-support issues. See former § 12-15-30(b)(1), Ala.Code 1975 (providing that the juvenile court shall exercise exclusive original jurisdiction of “[proceedings to determine custody ... of a child when the child is otherwise before the court”); and C.D.W. v. State ex rel. J.O.S., 852 So.2d 159 (Ala.Civ.App.2002) (holding that an action seeking to establish paternity and for an award of child support is within the juvenile court’s jurisdiction). As it does today, in 2003 the Jefferson Family Court acted as the juvenile court for the Tenth Judicial Circuit. See Ex parte Calhoun, 688 So.2d 259 (Ala.1997). Thus, the 2003 judgment resulted from an exercise of the jurisdiction of the Jefferson Family Court in a paternity proceeding.

Formerly, once a juvenile court decided custody and child-support issues as part of a paternity proceeding, that juvenile court retained continuing exclusive jurisdiction over those issues unless it terminated its own jurisdiction. See former § 12-15-32, Ala.Code 1975 (providing that, once a juvenile court obtains jurisdiction in any case involving a child, that court retains jurisdiction over that case until the child reaches the age of 21 years or until the court, by its own order, terminates that jurisdiction); see also W.B.G.M. v. P.S.T., 999 So.2d 971 (Ala.Civ.App.2008). However, in 2008, the legislature enacted the new Alabama Juvenile Justice Act (“the new AJJA”), § 12-15-101 et seq., Ala.Code 1975, which amended and renumbered the provisions of former § 12-15-32 as § 12-15-117, Ala. Code 1975. Section 12-15-117 provides, in pertinent part:

“(a) Once a child has been adjudicated dependent, delinquent, or in need of supervision, jurisdiction of the juvenile court shall terminate when the child becomes 21 years of age unless, prior thereto, the judge of the juvenile court terminates its jurisdiction over the case involving the child.”

By its plain terms, § 12-15-117(a) does not grant juvenile courts continuing jurisdiction over children unless they have been “adjudicated dependent, delinquent, or in need of supervision.” Thus, this court has held that a juvenile court no longer has continuing jurisdiction over a child based solely on its having made a prior paternity determination. Ex parte T.C., 63 So.3d 627 (Ala.Civ.App.2010).

Adhering to the principles set out in Ex parte T.C., we hold that the Jefferson Family Court does not have continuing exclusive jurisdiction over the custody and child-support issues asserted in the father’s petition. See, e.g., T.B. v. T.H., 30 So.3d 429, 431 (Ala.Civ.App.2009) (“Juvenile courts are purely creatures of statute and have extremely limited jurisdiction.”). Hence, the mere fact that the Jefferson Family Court at one time decided child-custody and child-support matters as part of a paternity determination does not in any manner prevent the circuit court from exercising its jurisdiction over those issues. The circuit court therefore properly denied the motion to dismiss. Because the mother has shown no clear legal right to the relief sought, this court declines to issue the requested writ of mandamus.

The mother also argues that the custody-modification standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984), should apply to the custody issue in the underlying case. We note, however, that the circuit court has yet to address the custody issue and has never indicated that it would follow any other custody-modification standard. Thus, we conclude that the mother has not shown ‘““an imperative duty on the respondent to perform, accompanied by a refusal to do so.” ’ ” Ex parte K.L.P., 868 So.2d at 455. Therefore, we decline to issue the a writ of mandamus regarding this issue.

Based on the foregoing, we deny the mother’s petition for a writ of mandamus.

PETITION DENIED.

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

THOMPSON, P.J., concurs specially.

THOMPSON, Presiding Judge,

concurring specially.

I concur with the main opinion; however, I write specially to point out that the concerns regarding the changes in the jurisdiction of the juvenile courts expressed in my special writing in Ex parte T.C., 63 So.3d 627, 631 (Ala.Civ.App.2010) (Thompson, P.J., concurring in part and concurring in the result), are applicable in this case as well.

      . The father did not allege any facts that could be construed as dependency allegations so as to invoke the juvenile court's dependency jurisdiction under 12-15-114(a), Ala.Code 1975, nor did he allege that the child was in danger of immediate harm so as to invoke the juvenile court’s emergency jurisdiction under 12-15-138, Ala.Code 1975.


author: MOORE, Judge.

text:
    BAD ASS COFFEE COMPANY OF HAWAII, INC. v. NAUGHTY DONKEY ENTERPRISES, LLC, et al.
    2090893.
    Court of Civil Appeals of Alabama.
    Dec. 3, 2010.

      Robert O. McNearney III of Duell Hunt, LLC, Birmingham, for appellant.
    Robert F. Prince of Prince, Glover & Hayes, Tuscaloosa, for appellees.
   MOORE, Judge.

Bad Ass Coffee Company of Hawaii, Inc. (“the coffee company”), appeals from the Tuscaloosa Circuit Court’s denial of its motion to compel arbitration in a civil case brought by Naughty Donkey Enterprises, LLC, Forest Doles, and Robert Derieux (hereinafter collectively referred to as “the plaintiffs”). We affirm.

Facts and Procedural History

On June 29, 2009, the plaintiffs filed a complaint against the coffee company alleging that the coffee company had defaulted on a promissory note that had been executed in December 2006 (“the promissory note”). The plaintiffs attached a copy of the promissory note to the complaint.

On August 17, 2009, the coffee company filed a motion to stay the proceedings and to compel arbitration, alleging:

“1. [The plaintiffs] and [the coffee company] are parties to a Termination, Mutual Release, and Confidentiality Agreement dated December 5, 2006, (hereinafter ‘Agreement’) a copy of which is attached hereto as Exhibit T and made a part hereof.
“2. [The plaintiffs] filed their complaint with this Honorable Court seeking to enforce claims against [the coffee company] which arise out of and which are directly related to the Agreement. ...
“3. The Agreement ... contains in Item 5 Page 5 a mandatory arbitration provision and also provides a requirement that the Agreement is governed by Utah law.
“ ‘All issues or disagreements relating to this Agreement, will be arbitrated, tried, heard, and decided in Salt Lake City, Utah.
“ ‘This Agreement is accepted in the State of Utah and will be governed by Laws of Utah.... ’
“4. The claims of [the plaintiffs] in their Complaint filed with the Court specifically reference the Agreement ... in paragraphs 11, 20 and 28 of their Complaint. The Agreement ... is the contract referenced in Count 1 of [the plaintiffs’] Complaint and incorporates the Promissory Note sued upon in Count 2 of [the plaintiffs’] Complaint. Item 1 Page 1 of the Agreement ... states in part:
“ ‘In consideration for this Agreement, [the coffee company] has paid to [the plaintiffs] an initial payment of $21,000 in the form of a check, receipt of which is acknowledged. In addition, [the coffee company] has executed the attached promissory note to pay to [the plaintiffs] the amount of $189,000 bearing 0% interest from the date of the note until paid in full with an increase to 15% if [the coffee company] defaults on the note.’
“5. Where parties enter into a binding Agreement providing for arbitration of all disputes the United States Supreme Court has stated in Southland Corp. v. Keating, 465 U.S. 1 (1984) that Congress, in enacting § 2 of the Federal Arbitration Act, created a substantive rule of law applicable in state court and ‘withdraw the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.’ Id. at 10, 14-15.”

(Emphasis in original.) The plaintiffs did not respond to the motion.

On April 14, 2010, the trial court entered an order denying the coffee company’s motion to stay and to compel arbitration, specifically finding that there was no binding arbitration agreement. On May 6, 2010, the coffee company filed its notice of appeal to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Discussion

On appeal, the coffee company argues that the trial court erred in denying its motion to compel arbitration. “[T]he interpretation of an arbitration agreement is generally a matter of state law.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., — U.S. -, -, 130 S.Ct. 1758, 1773, 176 L.Ed.2d 605 (2010). The parties entered into a Termination, Mutual Release, and Confidentiality Agreement (“the agreement”) on December 5, 2006. The agreement contains a choice-of-law provision; pursuant to that provision, this court must apply Utah state law in construing the agreement. See Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1133 (Ala.2003) (“ ‘Alabama law has long recognized the right of parties to an agreement to choose a particular state’s laws to govern an agreement.’ ” (quoting Cherry, Bekaert & Holland v. Brown, 582 So.2d 502, 506 (Ala.1991))); see also Ex parte Colquitt, 808 So.2d 1018, 1023 (Ala.2001) (“The parties do not dispute that, pursuant to the ‘choice-of-law’ provision in the Agreement, this Court must apply Delaware law and federal law in construing the Agreement.”); and Karl Storz Endoscopy-America, Inc. v. Integrated Med. Sys., Inc., 808 So.2d 999, 1008 (Ala.2001) (“The parties agree that the resolution of these issues turns on the application of the substantive law of California, within the framework of the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the ‘FAA’).”).

Pursuant to Utah law, “whether a trial court correctly decided a motion to compel arbitration is a question of law which we review for correctness, according no deference to the trial judge.” Central Florida Invs., Inc. v. Parkwest Assocs., 40 P.3d 599, 604 (Utah 2002). Utah Code Ann. § 78B-11-107 (1953), a part of the Utah Uniform Arbitration Act, Utah Code Ann. § 78B-11-101 et seq. (1953), provides, in pertinent part:

“(1) An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.
“(2) The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.”

§ 78B-11-107(1) & (2). Utah Code Ann. § 78B-11-108 (1953), provides, in pertinent part:

“(1) On motion of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement:
“(a) if the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate; and
“(b) if the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.
“(3) If the court finds that there is no enforceable agreement, it may not, pursuant to Subsection (1) or (2), order the parties to arbitrate.”

§ 78B-11-108(1) & (3). Thus, under § 78B-11-108(1), the party seeking to compel arbitration has the initial burden of “showing an agreement to arbitrate.”

“Because ‘[arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit,’ United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), whether the motion to compel arbitration was erroneously denied is first a matter of contract interpretation. See Jenkins v. Percival, 962 P.2d 796, 799 (Utah 1998)....
“In interpreting a contract, the intentions of the parties are controlling. Dixon v. Pro Image, Inc., 1999 UT 89, ¶ 13, 987 P.2d 48 (quotation omitted). ‘[W]e first look to the four corners of the agreement to determine the intentions of the parties.’ Ron Case Roofing & Asphalt v. Blomquist, 773 P.2d 1382, 1385 (Utah 1989); see also Reed v. Davis Co. Sch. Dist., 892 P.2d 1063, 1064-1065 (Utah Ct.App.1995). If the language within the four corners of the contract is unambiguous, the parties’ intentions are determined from the plain meaning of the contractual language, and the contract may be interpreted as a matter of law. Dixon, 1999 UT 89 at ¶ 14, 987 P.2d 48 (citing Willard Pease Oil & Gas Co. v. Pioneer Oil & Gas Co., 899 P.2d 766, 770 (Utah 1995)). If the language within the four corners of the contract is ambiguous, however, extrinsic evidence must be looked to in order to determine the intentions of the parties. Id. In evaluating whether the plain language is ambiguous, we attempt to harmonize all of the contract’s provisions and all of its terms. Id.; see also Buehner Block Co. v. UWC Assocs., 752 P.2d 892, 895 (Utah 1988). ‘An ambiguity exists where the language “is reasonably capable of being understood in more than one sense.’” Dixon, 1999 UT 89 at ¶ 14, 987 P.2d 48 (quoting R & R Energies v. Mother Earth Indus., Inc., 936 P.2d 1068, 1074 (Utah 1997) (further quotation omitted)).”

Central Florida Invs., 40 P.3d at 604-05.

In the present case, the language in the agreement upon which the coffee company relies in support of its position that the parties had a binding arbitration agreement is contained in the following paragraph:

“This Agreement is accepted in the State of Utah and will be governed by the laws of Utah which laws will prevail. ... This choice of laws will not include and does not extend the scope of application of the Utah franchise or business opportunity laws. All issues or disagreements relating to this Agreement will be arbitrated, tried, heard, and decided in Salt Lake City, Utah.”

The language in the above-quoted provision mandates that “[a]ll issues or disagreements relating to [the] Agreement will be arbitrated.... ” In reading the entirety of the provision, however, an ambiguity becomes apparent. The provision requires not only that the issues or disagreements be arbitrated, but also requires that the issues or disagreements be “tried, heard, and decided.”

According to Utah law:

“Arbitration is ‘[a] method of dispute resolution involving one or more neutral third parties ... whose decision is binding.’ Black’s Law Dictionary 100 (7th ed.1999); see also Reed v. Davis County Sch. Dist., 892 P.2d 1063, 1065 (Utah Ct.App.1995); 6 C.J.S. Arbitration § 1 (1975). Specifically, an arbitration is a broad, ‘quasi-judicial proceeding, complete with formal hearings, notice to parties, and testimony of witnesses.’ Hartford Lloyd’s Ins. Co. v. Teachworth, 898 F.2d 1058, 1062 (5th Cir.1990).”

Miller v. USAA Cas. Ins. Co., 44 P.3d 663, 672 (Utah 2002).

In contrast, according to Merriam-Webster’s Collegiate Dictionary 1344 (11th ed.2003), the word “try” is defined as “to examine or investigate judicially.” Furthermore, the Third District Court of Appeals of the State of California has explained: “An arbitration proceeding is not deemed to be the trial of a cause before a judicial tribunal. It merely provides a summary and expeditious means of attempting to determine controversies out of court pursuant to a stipulation of the parties in a written contract.” Snyder v. Superior Court, 24 Cal.App.2d 263, 267, 74 P.2d 782, 784 (1937).

Based on the foregoing, it is clear that the plain meaning of the word “arbitrate” involves a quasi-judicial proceeding, whereas the plain meaning of the word “try” involves a judicial proceeding. Although we have found one Alabama case in which this court referred to an issue being “tried before [an] arbitrator,” see McKee v. Hendrix, 816 So.2d 30, 34 (Ala.Civ.App.2001), we have located nothing similar in Utah caselaw. Because the plain language of the provision appears to require that all issues or disagreements be both arbitrated and tried by a court of law, we conclude that the provision is ambiguous. Thus, the trial court was authorized to accept “extrinsic evidence ... in order to determine the intentions of the parties.” Central Florida Invs., 40 P.3d at 605. We note, however, that the coffee company failed to offer any extrinsic evidence indicating the intentions of the parties. Thus, we cannot hold the trial court in error for not considering such evidence. See, e.g., Brookside Mobile Home Park, Ltd. v. Peebles, 48 P.3d 968, 972 (Utah 2002) (“[I]n order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.”).

Because the coffee company failed to show that the agreement unambiguously evinced an intent to arbitrate and also failed to introduce any extrinsic evidence indicating an intent to arbitrate, we cannot hold the trial court in error for denying the coffee company’s motion to compel arbitration. Accordingly, we affirm the trial court’s judgment.

AFFIRMED.

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

      . Although the current Utah Uniform Arbitration Act became effective on February 7, 2008, pursuant to Utah Code Ann. § 78B-11-104 (1953), the Act “applies to any agreement to arbitrate made on or after May 6, 2002.”

      . The plaintiffs raise additional arguments in their brief to this court in support of their position that this court should affirm the trial court's order denying the coffee company’s motion to compel arbitration. Because we conclude that there was no evidence of an enforceable arbitration agreement, we preter-mit discussion of those arguments.


text:
    E.E. WARHURST, Jr. v. Helen WARHURST.
    2090715.
    Court of Civil Appeals of Alabama.
    Dec. 3, 2010.
    Gene Warhurst, Jr., Mobile, for appellant.
   THOMAS, Judge.

E.E. Warhurst, Jr. (“the husband”), and Helen Warhurst (“the wife”) were divorced by a judgment of the Mobile Circuit Court on October 19, 2009. According to the State Judicial Information System, Donald Briskman, the wife’s attorney, filed a post-judgment motion on October 30, 2009, requesting that the trial court amend its judgment to award Briskman costs and an attorney fee. The trial court continued the hearing on Briskman’s postjudgment motion on motions filed by the husband and, later, by Briskman. The trial court held a hearing on Briskman’s post-judgment motion on February 4, 2010, and, on March 23, 2010, it entered an order granting Briskman’s postjudgment motion and amending its October 19, 2009, judgment to award Briskman $3,350 as an attorney fee.

On March 29, 2010, Briskman filed a motion requesting that the trial court amend its March 23, 2010, order to denominate the $3,350 award to Briskman as costs instead of an attorney fee. On April 1, 2010, the husband filed a postjudgment motion requesting that the trial court vacate its amended judgment insofar as it awarded $3,350 to Briskman. The trial court granted Briskman’s motion to amend on April 6, 2010, and, on April 12, 2010, it entered an order stating that the $3,550 award to Briskman was for costs. The husband subsequently appealed to this court.

On appeal, the husband argues that the trial court’s March 23, 2010, April 6, 2010, and April 12, 2010, orders were void for lack of jurisdiction. We agree.

Briskman filed his Rule 59(e), Ala. R. Civ. P., postjudgment motion on October 30, 2009. Rule 59.1 provides, in pertinent part:

“No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to render an order disposing of any pending postjudgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”

The record indicates that both the husband and Briskman filed motions to continue the hearing on Briskman’s postjudgment motion; however, those motions do not contain the parties’ express consent to extend the period for the trial court to rule on Briskman’s postjudgment motion. Thus, the motions to continue did not extend the 90-day period for the trial court to rule on Briskman’s postjudgment motion. See Burge v. Hayes, 964 So.2d 672, 675 (Ala.Civ.App.2006) (holding that a motion to continue a hearing on a postjudgment motion was ineffective to extend the period for the trial court to rule on the motion absent the express consent of the parties). Consequently, Briskman’s postjudgment motion was denied by operation of law on January 28, 2010, and the trial court lost jurisdiction to rule on Briskman’s post-judgment motion on that date. See Moore v. Moore, 910 So.2d 137, 140 (Ala.Civ.App.2004) (“A trial court loses jurisdiction to rule on a postjudgment motion if it does not rule on the motion within the time prescribed by Rule 59.1.”).

Because the trial court lacked jurisdiction to enter its March 23, 2010, April 6, 2010, and April 12, 2010, orders, those orders are void. See Faith Props., LLC v. First Commercial Bank, 988 So.2d 485, 490 (Ala.2008) (“[A] judgment entered by a trial court without subject-matter jurisdiction is void.”). “A void judgment will not support an appeal, and ‘an appellate court must dismiss an attempted appeal from such a void judgment.’ ” Colburn v. Colburn, 14 So.3d 176, 179 (Ala.Civ.App.2009) (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008)). Therefore, we dismiss the husband’s appeal and instruct the trial court to vacate its March 23, 2010, April 6, 2010, and April 12, 2010, orders.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

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

      . The record on appeal does not contain a copy of Briskman’s postjudgment motion. However, we ascertained the request contained in the motion from the trial court’s order granting Briskman’s motion.

      . The husband’s postjudgment motion was denied by operation of law on June 30, 2010. See Rule 59.1, Ala. R. Civ. P. The husband filed his notice of appeal on May 3, 2010— before the denial of his postjudgment motion. Therefore, the husband’s notice of appeal was held in abeyance pending the disposition of his postjudgment motion. See Rule 4(a)(5), Ala. R.App. P.


author: PITTMAN, Judge.

text:
    Monty ERVIN v. Jennifer STACKHOUSE.
    2081127.
    Court of Civil Appeals of Alabama.
    Dec. 3, 2010.

      Stephen T. Etheredge, Dothan, for appellant.
    Tracie Melvin and Mary Jane Oakley of Legal Services Alabama, Inc., Dothan, for appellee.
   PITTMAN, Judge.

Monty Ervin appeals from a judgment determining that he is liable to Jennifer Stackhouse for violations of the Alabama Uniform Residential Landlord and Tenant Act, § 35-9A-101 et seq., Ala.Code 1975 (“the Act”).

Stackhouse decided to lease an apartment (“the apartment”) from Ervin, who was the landlord. On December 27, 2007, she entered into a lease agreement styled “Transient Week to Week Lease Agreement” with Ervin and an entity named Southern Realty. The lease agreement provided for a payment of $100 as a security deposit and weekly rent payments of $100. The lease agreement stipulated that each weekly rent payment of $100 included gas, electricity, water, garbage, and sewer charges, if any. The lease agreement also stated that Stackhouse had a monthly utility allotment of $100 and that if, at any time, the monthly utility bills totaled more than $100, Stackhouse would be responsible for the difference. In addition to other terms, the lease agreement also contained a pet-deposit fee of $300 per week for each pet kept indoors.

The record indicates that Stackhouse paid her weekly rent on January 25, 2008, for the week ending January 31. On January 26, 2008, one of Ervin’s secretaries entered the apartment and took pictures of two cats, food dishes, and a litter box in Stackhouse’s kitchen. Ervin’s secretary informed Stackhouse, both orally and in writing, that she was in violation of the pet-deposit provision of the lease agreement and that failure to pay $600 by the close of business on January 28, 2008, would result in her electricity being disconnected. Subsequently, the electricity service to the apartment was discontinued on January 28, then reinstated, then discontinued again on January 31.

On February 1, 2008, Stackhouse filed a complaint against Ervin and Southern Realty in the Houston District Court seeking injunctive relief and monetary damages for Ervin’s refusal to provide electricity service to the apartment pursuant to the lease agreement and alleging that, as a result, she had been wrongfully evicted from the apartment. That action was docketed as case no. DV-08-60 and was transferred by subsequent motion to the Houston Circuit Court the following week, where it was renumbered as ease no. CV-08-60; a temporary injunction preventing Stackhouse’s eviction was entered after the transfer was completed. On February 4, 2008, Ervin filed an unlawful-detainer action, pursuant to § 6-6-310, Ala.Code 1975, in the district court seeking to recover possession of the leased premises because, he claimed, Stackhouse was in violation of the pet-deposit provision of the lease agreement; that action was docketed as case no. DV-08-127. Beginning sometime during the month of February and continuing until March 14, 2008, Stackhouse was incarcerated on unrelated charges. Subsequent to Stackhouse’s arrest, the apartment was burglarized and vandalized; Stackhouse’s mother testified that someone in Ervin’s office had called her to come and collect any family belongings in February before Ervin boarded up the apartment to prevent further damage.

Although Stackhouse had received a preliminary injunction to prevent her eviction from the apartment, the circuit court dissolved that injunction on March 3, 2008, and set the matter for a final hearing in April. The following day, the district court conducted an ore tenus proceeding on Ervin’s unlawful-detainer complaint, and that court took the matter under advisement without issuing a writ of possession. Subsequently, on March 13, 2008, the district court entered a judgment in favor of Stackhouse, in which that court stated, in pertinent part, “that the lease term authorizing [Ervin] to ‘cut off the utilities upon [Stackhousej’s failure to pay rent is an unlawful self-help eviction or ouster of the tenant by the landlord and is against public policy.” No writ of possession was issued.

On March 14, 2008, acting without a writ of possession, Ervin directed his employees to move all remaining personal property from the apartment and to stack those items on the street curb. The testimony was conflicting regarding whether any items were damaged during the move; at least two witnesses, including Stackhouse’s mother, testified that most of the items removed from the apartment had already been vandalized during the February burglary and were not further damaged by placement outside the apartment.

On March 18, 2008, Ervin appealed from the district court’s judgment to the circuit court; on appeal, that case was docketed as case no. CV-08-127. On July 7, 2008, following numerous continuances, the circuit court entered an order consolidating Stackhouse’s sole remaining claim, which sought money damages, with Ervin’s unlawful-detainer appeal. In addition, Stack-house filed a motion seeking a determination that Ervin was in contempt of court for having removed her personal property from the apartment following the district court’s determination that Ervin was not entitled to a writ of possession. After several delays, the consolidated cases were finally tried on April 23, 2009. At that ore tenus proceeding, both Ervin and Stack-house testified, and offered documentary evidence, regarding their contentions and defenses as to the other party’s complaint. In addition, John Peacock, an employee of Ervin’s; Lawrence Wilson, a freelance photographer; and Cathy Campbell, Stackhouse’s mother, testified.

Peacock and Wilson testified regarding the events of March 14, 2008, the day that Ervin had caused Stackhouse’s belongings to be removed from the apartment. Campbell testified regarding her visit to the “ransacked” apartment in February 2008 after the burglary, which she confused with the physical eviction that had occurred on March 14, 2008. Peacock stated that he had been called to the apartment by Ervin to give Stackhouse access to the premises to remove her possessions from the property. Peacock was unable to identify Campbell as having been on the premises that day; moreover, he stated that Stackhouse had told him that she did not want any of the personal property but that she instead wanted to reoccupy the apartment. Wilson stated that he had been on the same street taking pictures to upload to the “Google Maps” Web site; he testified that he had thought the apartment appeared boarded up, which seemed unusual, so he had taken some pictures of the scene.

Stackhouse testified that she had never intended to vacate the premises, that she had told Ervin that she was consulting a lawyer, and that after she had informed Ervin that she would not leave he had disconnected the electric service to the apartment. Stackhouse denied having given Ervin written notice that she would vacate the premises at the end of January; she stated that she had never seen the document that Ervin claimed was her written notice that she would be vacating the apartment by the end of the day on January 31. She testified that one of Ervin’s secretaries had informed her that she needed to pay the weekly pet deposit or risk eviction. Stackhouse claimed that the animals in her apartment had been brought inside the apartment only one night because of cold weather.

Ervin testified that all the actions relied upon by the district court to determine that Ervin had unlawfully evicted Stack-house had occurred after the date and time that, he said, Stackhouse had notified Er-vin in writing that she would vacate the apartment. Furthermore, Ervin stated that all the actions he had taken were proper and in compliance with specific provisions of the parties’ lease agreement.

On June 28, 2009, the circuit court entered a judgment in favor of Stackhouse, stating, in pertinent part:

“Upon consideration of the testimony and evidence presented herein, the court finds that the lease agreement entered into between ... Stackhouse and ... Ervin is not a ‘transient lease agreement’ but rather a residential lease agreement which is subject to the application of [the] Act. The court further finds that the actions taken by [Ervin] in disconnecting [Stackhouse]’s power and removing [Stackhouse]’s possessions from the subject property, which actions were taken without the benefit of a writ of possession or other lawful court order, constitute an unlawful eviction.”

More specifically, the circuit court denied the relief sought by Ervin in his unlawful-detainer action. Although the circuit court specifically determined that Ervin was not in contempt of court, it did conclude that Ervin and Southern Realty were liable to Stackhouse in the amount of $1,200 for conducting a wrongful “self-help” eviction.

Only Ervin has filed an appeal from that judgment. He asserts that the circuit court erred in failing to enforce the parties’ lease agreement as written, in applying the Act to the facts in this case, and in awarding damages to Stackhouse based upon a theory of wrongful eviction. On appeal, Ervin insists that the appropriate appellate-review standard is de novo and prays for reversal by this court because, he says, the circuit court improperly applied the law to the facts of this case.

We note that our standard of review is well established.

“ ‘ “[I]n ore tenus proceedings the trial court is the sole judge of the facts and of the credibility of witnesses,” and “we are required to review the evidence in a light most favorable to the prevailing part[y],”.... Driver v. Hice, 618 So.2d 129, 131 (Ala.Civ.App.1993); see also First Health, Inc. v. Blanton, 585 So.2d 1331, 1332 (Ala.1991) (reviewing evidence in the light most favorable to the prevailing party where the trial court’s judgment was entered after an ore tenus proceeding).’
“Architectura, Inc. v. Miller, 769 So.2d 330, 332 (Ala.Civ.App.2000).”

Enriquez v. Kokomo Props., LLC, 39 So.3d 198, 201 (Ala.Civ.App.2009). The bulk of Ervin’s brief centers on his contention that the Act in some manner violates the Alabama Constitution of 1901 and his liberty interest to freely make contracts. The record reflects that Ervin did not make any constitutional argument to the circuit court. Appellate courts “cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992); therefore, we will not consider that aspect of Ervin’s appeal.

Ervin also contends that the circuit court erred in failing to enforce the terms of the lease agreement and in determining that the lease was governed by the Act. At trial, Ervin insisted that the lease was a “transient lease” that fell outside the parameters of the Act, specifically citing the exclusion contained in § 35-9A-122(4), Ala.Code 1975, that “transient occupancy in a hotel, motel, or lodgings” is not covered by the Act. The Comment to that section is instructive and clarifies that the “Act applies to roomers and boarders but is not intended to apply to transient occupancy” and that “[i]n many jurisdictions transient hotel operations are subject to special taxes and regulations.” In addition, the Comment notes that “[a]ll of the exclusions enumerated apply only to genuine, bona fide arrangements not created to avoid application of the Act and are subject to the test of good faith [codified at § 35-9A-142].”

Although Ervin insisted at trial that he was merely acting as a landlord of transient rooms to let, he also testified that several of his long-time tenants “had left” because of “problems” with having Stack-house as a tenant. Stackhouse, for her part, testified that she had wanted to lease the apartment on a weekly basis because, by doing so, she could avoid having to make utility deposits because those services were included in the weekly rent. Moreover, the combined testimony of Stackhouse and Campbell indicated that, although the style of the lease agreement contains the word “transient,” they believed the lease agreement was, in fact, a residential-dwelling contract between a landlord and a tenant.

Courts generally enforce contracts as written. The Alabama Supreme Court has noted:

“ ‘[An appellate c]ourt has limited authority to deal with the enforceability of contract terms. It can nullify or reform a contract on the basis of fraud; it can also nullify or reform a contract to eliminate any unconscionable provisions or terms that violate public policy. As previously noted, a contract provision that violates public policy can be subsumed under the theory of substantive uncon-scionability....’ ”

Edwards v. Allied Home Mortg. Capital Corp., 962 So.2d 194, 211 (Ala.2007) (quoting Ex parte Thicklin, 824 So.2d 723, 732 (Ala.2002)). In addition, “ ‘the intention of the parties must be gathered from the four corners of the contract interpreted in the light of the occasion which gave rise to the contract, the relation of the parties and the objects to be accomplished.’ ” Gwaltney v. Russell, 984 So.2d 1125, 1133 (Ala.2007) (quoting Ingalls Iron Works Co. v. Ingalls, 256 Ala. 124, 127, 53 So.2d 847, 849 (1951)).

A thorough review of the lease agreement reveals the following provisions: Stackhouse was to pay a security deposit upon signing the lease agreement, Stack-house was encouraged to obtain renter’s insurance to protect her personal property, Stackhouse was to occupy the apartment as only a personal residence, and Stack-house was to pay an additional pet deposit if animals were allowed to live indoors. In addition, the lease agreement provided that Stackhouse had a $100 monthly utility allowance, and it stated that Stackhouse was responsible for any amount exceeding that allowance. None of those provisions would appear to apply to intermittent or transient lodgers, ie., residents for a few days. The Act was passed “to simplify, clarify, modernize, and revise the law governing the rental of dwelling units and the rights and obligations of landlords and tenants.” Ala.Code 1975, § 35-9A-102(b)(1) (emphasis added). The Act specifically applies to “landlord-tenant relations in residential properties.” Ala.Code 1975, § 35-9A-122, Comment. Based upon the provisions of the Act and our reading of the lease agreement, we conclude that the circuit court properly determined that the lease was covered by the Act.

Having determined that the lease was governed by the Act, the circuit court could properly have concluded that Ervin had attempted to improperly evict Stack-house by discontinuing the electrical service to the apartment without first obtaining a writ of possession from a trial court. See Pieper v. American Sign/Outdoor Adver., Inc., 564 So.2d 49, 50 (Ala.1990); see also Moriarty v. Dziak, 435 So.2d 35 (Ala.1983), and Moss v. Hall, 245 Ala. 612, 18 So.2d 368 (1944). Although Ervin contends that he did nothing that was not authorized by the lease agreement, the fact that he failed to secure a writ of possession before discontinuing the electrical service to the apartment twice in January 2008 could properly have been deemed to constitute an unlawful self-help eviction.

Although the circuit court referenced the removal of Stackhouse’s property in its judgment, we agree with Ervin that Stack-house’s claim as to the removal of the personal property was not actionable in damages (albeit not for the reasons he has argued on appeal); however, the circuit court’s assessment of $1,200 in damages was actually related to Stackhouse’s claim regarding the discontinuance of electrical service to the apartment. Relying on § 35-9A-407, Ala.Code 1975, Stackhouse’s attorney noted that, when utilities have been improperly disconnected, the tenant is entitled to damages in the amount of 3 months periodic rent (in this case, $100 x 4 weeks x 3 months = $1,200). Although Stackhouse had also requested $6,000 to replace her personal property, the circuit court did not award anything on that claim, and we deem it implicitly denied. Based upon the foregoing reasons and authorities, the circuit court’s judgment is due to be affirmed.

AFFIRMED.

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

      . It is unclear from the record what type of entity Southern Realty is, why it was party to the lease, or what relationship, if any, it has to Ervin.

      . See supra note 1.

      . Although the notice of appeal was not filed until September 4, 2009, Ervin applied for and received an extension of time, pursuant to Rule 77(d), Ala. R. Civ. P., to file his notice of appeal. Thus, his appeal is timely.

      . Even if the circuit court had not applied the Act to the lease, Alabama’s unlawful-detainer statutes would still apply to prevent Ervin from summarily discontinuing electricity service to the apartment without first obtaining a writ of possession. See Ala.Code 1975, § 6-6-310 et seq.