author: WOODALL, Justice.

text:
    The LEMOINE COMPANY OF ALABAMA, L.L.C. v. HLH CONSTRUCTORS, INC.
    1090847.
    Supreme Court of Alabama.
    Nov. 19, 2010.

      Lawrence B. Voit and Alexandra K. Garrett of Silver, Voit & Thompson, P.C., Mobile, for appellant.
    Thomas R. McAlpine of Whitfield & McAlpine, P.C., Mobile, for appellee.
   WOODALL, Justice.

The Lemoine Company of Alabama, L.L.C. (“Lemoine”), subcontracted with HLH Constructors, Inc. (“HLH”), for HLH to perform plumbing work on a construction project. HLH subsequently sued Lemoine, alleging, among other things, that Lemoine had not paid HLH the balance due under the subcontract. The trial court entered a judgment in HLH’s favor, awarding damages, interest, and attorney fees. We reverse and remand.

Facts and Procedural History

Vista Bella, Inc., and Lemoine entered into a contract, by which Lemoine agreed to act as general contractor on a condominium-construction project in Baldwin County (“the project”). Lemoine subcontracted the plumbing work for the project to HLHÍ

During the course of construction, and pursuant to the terms of the general contract, Vista Bella withheld a 5% retainage on the work performed. Each month, Lemoine sent Vista Bella an application for payment, in which Lemoine set forth details regarding, among other things, the value of the work completed during the month and the amount of the retainage withheld with respect to that work.

Also during the course of construction, and pursuant to the terms of its subcontract with HLH, Lemoine withheld a 5% retainage with respect to HLH’s work on the project. HLH sent monthly applications for payment to Lemoine. These applications, like the applications sent by Lemoine to Vista Bella, indicated the value of the work HLH had performed during the month and the retainage withheld with respect to that work.

On July 3, 2007, a certificate of completion was issued for the project. On July 12, 2007, Lemoine billed Vista Bella for the retainage that had been withheld during construction. Vista Bella never paid the retainage. It appears that Vista Bella has paid Lemoine all amounts owed under the general contract, except for the retainage. Lemoine sued Vista Bella to recover the unpaid balance. Vista Bella failed to appear, and the trial court entered a default judgment in Lemoine’s favor, awarding Lemoine $1,438,066.35 in damages, plus interest and costs. Lemoine states that, as of the date of trial in this case, Lemoine had not collected from Vista Bella any portion of the default judgment.

After the completion of the project, HLH sent Lemoine an application for payment of the balance outstanding under the subcontract. Lemoine did not pay that bill; instead, it tendered to HLH a check for $1,500. Lemoine argues that the check was intended as a payment on the monthly application, not as a final payment for the retainage under the subcontract. HLH refused the check and requested payment of the entire outstanding balance. Lem-oine has not made any further payment under the subcontract. Lemoine states that “[t]he parties do not dispute that Lemoine made all payments required by the subcontract to HLH except for the final retainage payment and payment for disputed extra work.” Lemoine’s brief, at 43. HLH makes no argument to the contrary.

In April 2008, HLH sued Lemoine and Vista Bella, alleging breach of contract and stating claims for “work and labor done and materials provided, open account, stated account, and under [§] 8-29-1, [Ala. Code 1975].” HLH’s brief, at 9. HLH also sought to enforce a materialman’s lien against Vista Bella.

Lemoine denied HLH’s allegations and moved the trial court to “transfer HLH’s materialman’s lien against Vista Bella to a bond in the amount of $117,827.62 pursuant to [Ala.Code 1975,] § 35-11 — 233(b). ... The trial court granted the motion.” Lemoine’s brief, at 2-3.

In December 2009, the case was tried without a jury. On HLH’s motion, the trial court entered a default judgment against Vista Bella. On February 5, 2010, the trial court entered a judgment against Lemoine, stating:

“This case came for trial on 12/16/09; and the court, having heard the testimony of the witnesses; having reviewed the evidence and having considered the briefs of the parties, hereby enters judgment for [HLH] and against [Lemoine and Vista Bella] for the sum of $138,283.36, including principal of $90,102.95, interest of $25,228.82, and attorneys fees of $22,951.59. [Lemoine and Vista Bella] are taxed with the costs of court.”

Lemoine now appeals that judgment.

Issues

On appeal, Lemoine raises three issues: (1) whether Vista Bella’s payment to Lem-oine of the balance owed under the general contract was a condition precedent to Lemoine’s obligation to pay HLH the balance owed under the subcontract; (2) whether the trial court erred in determining that the unpaid balance due from Lem-oine to HLH under the subcontract was $90,102.95; and (3) whether the trial court erred in awarding HLH attorney fees and 12% interest pursuant to § 8-29-1 et seq., Ala. Code 1975.

Standard of Review

“When evidence is taken ore ten-us and the trial judge makes no express findings of fact, this Court will assume that the trial judge made those findings necessary to support the judgment. Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992) (citing Fitzner Pontiac-Buick-Cadillac, Inc. v. Perkins & As- socs. Inc., 578 So.2d 1061 (Ala.1991)). We will not disturb the findings of the trial court unless those findings are ‘clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.’ Gaston v. Ames, 514 So.2d 877, 878 (Ala.1987) (citing Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So.2d 1177 (Ala.1981)). ...
“ ‘However, the ore tenus standard of review has no application to a trial court’s conclusions of law or its application of law to the facts; a trial court’s ruling on a question of law carries no presumption of correctness on appeal.’ Ex parte J.E., 1 So.3d [1002,] 1008 [ (Ala.2008) ].... This Court “‘review[s] the trial court’s conclusions of law and its application of law to the facts under the de novo standard of review.” ’ Id. (quoting Washington v. State, 922 So.2d 145, 158 (Ala.Crim.App.2005)).”

Espinoza v. Rudolph, 46 So.3d 403, 412 (Ala.2010).

Analysis

Lemoine first argues that, “[p]ursuant to paragraph 5 of the subcontract, Vista Bella’s payment to Lemoine of the unpaid balance due under the general contract was a condition precedent[]to Lemoine’s obligation to pay HLH the unpaid balance under the subcontract.” Lemoine’s brief, at 25. “ ‘[I]t is well-established that condition precedents are not favored in contract law, and will not be upheld unless there is clear language to support them.’ ” Federal Ins. Co. v. I. Kruger, Inc., 829 So.2d 732, 740 (Ala.2002) (quoting Koch v. Construction Tech., Inc., 924 S.W.2d 68, 71 (Tenn.1996)). “ ‘In resolving doubts as to whether an event is made a condition of an obligor’s duty, and as to the nature of such an event, an interpretation is preferred that will reduce the obligee’s risk of forfeiture, unless the event is within the obligee’s control or the circumstances indicate that he has assumed the risk.’” Kruger, 829 So.2d at 739 (quoting Restatement (Second) Contracts § 227 (1981)) (emphasis added).

Although conditions precedent are not favored in contract law,

‘“[t]his Court has consistently held that the freedom to contract is an inviolate liberty interest.
“ ‘... The ban on impairing the obligations of contracts provided in Ala. Const. 1901, § 22, is obviously one that shall forever remain inviolate. Alabama caselaw has maintained the constitutional prohibition on impairing contracts by consistently upholding the intent of the contracting parties.’
“... [I]f two parties knowingly, clearly, and unequivocally enter into an agreement whereby they agree that the respective liability of the parties will be determined by some type of agreed-upon formula, then Alabama law will permit the enforcement of that agreement as written.”

Holcim (US), Inc. v. Ohio Cas. Ins. Co., 38 So.3d 722, 728-29 (Ala.2009) (quoting Shoney’s LLC v. MAC East, LLC, 27 So.3d 1216, 1221-22 (Ala.2009)).

Lemoine argues that the language of paragraph 5 of the subcontract clearly indicates that HLH assumed the risk of nonpayment by Vista Bella and that, therefore, the condition precedent in that paragraph is enforceable. We agree.

Paragraph 5 provides, in pertinent part:

“Notwithstanding anything else in this Subcontract or the Contract Documents, the obligation of [Lemoine] to make any payment under this Subcontract ... is subject to the express and absolute condition precedent of payment by [Vista Bella], It is expressly agreed that [Lemoine] and its surety shall have no obligation to pay for any work done on this Project, until [Lemoine] has received payment for such work from [Vista Bella], ... [HLH] expressly assumes the risk of nonpayment by [Vista Bella].”

(Emphasis added.)

“ ‘ “When a court construes a contract, ‘the clear and plain meaning of the terms of the contract are to be given effect, and the parties are presumed to have intended what the terms clearly state.’ ” ’ ” State v. Lorillard Tobacco Co., 1 So.3d 1, 7 (Ala.2008) (quoting H & S Homes, L.L.C. v. Shaner, 940 So.2d 981, 988 (Ala.2006), quoting in turn Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1133 (Ala.2003), quoting in turn Strickland v. Rahaim, 549 So.2d 58, 60 (Ala.1989)). HLH does not contest the validity of the subcontract, nor does it argue that the language of paragraph 5 is, standing alone, ambiguous. Moreover, Harrell Lloyd Harrellson, the owner of HLH, testified at trial that, although he “ma[de] certain changes or alterations” to the terms of the proposed subcontract with Lemoine before it was executed, he made no changes to the language of paragraph 5, and he raised no concerns at that time regarding the assignment of the risk of nonpayment from Lem-oine to HLH. Thus, “ ‘the circumstances [surrounding the execution of the subcontract] indicate that [HLH] has assumed the risk.’ ” Kruger, 829 So.2d at 739 (quoting Restatement (Second) Contracts § 227).

The facts of this case indicate that Lem-oine and HLH “knowingly, clearly, and unequivocally enter[ed] into [the subcontract] whereby they agree[d] that the respective liability of the parties [would] be determined by some type of agreed-upon formula,” Holcim, 38 So.3d at 729, namely, the condition precedent of paragraph 5; therefore, “Alabama law will permit the enforcement of [the subcontract] as written,” id., and Vista Bella’s payment to Lemoine under the general contract is an enforceable condition precedent to HLH’s right to payment under the subcontract.

HLH argues that “[t]he subcontract here does not clearly indicate that HLH intended to shift the risk of loss from Lemoine to itself.” HLH’s brief, at 21. More specifically, HLH argues that the condition precedent in paragraph 5 conflicts with the “pay-when-paid” clause of paragraph 4 of the subcontract and that “the conflict should be resolved in favor of the prior clause.” HLH’s brief, at 22. Paragraph 4 provides, in pertinent part, that “a final payment, consisting of the unpaid balance of the Price, shall be made within 45 days after the last of the following to occur: (a) ...; (b) ...; (c) Final payment by [Vista Bella] to [Lemoine] under the Contract on account of the Work.”

This Court has stated:

“A reasonable interpretation of [a pay-when-paid clause, like the one in paragraph 4,] is that it creates on the part of [the general contractor] an absolute obligation to pay; the language that follows — ‘within thirty (30) days after the last of the following to occur: (a) ..., (b) ..., (c) ..., (d) ... ’ — is reasonably read as merely specifying a time for payment, rather than as creating a condition precedent to payment.”

Kruger, 829 So.2d at 738. HLH appears to argue that paragraph 4 of the subcontract creates an absolute right to payment and is, therefore, in conflict with paragraph 5, which makes the right to payment dependent upon a condition precedent.

However, this Court’s analysis in Kruger of the effect of a pay-when-paid clause does not apply in this case. In Kruger, the general contractor and its surety relied solely on the pay-when-paid clause in arguing that payment by the owner was a condition precedent to payment to Kruger under a subcontract. This Court rejected that argument, stating:

“Can it be reasonably supposed, without express evidence in support thereof, that Harbert [the general contractor] and Kruger entered into an agreement pursuant to which Kruger was expected to perform a significant amount of work and to provide a substantial amount of materials under the terms of the subcontract, without an absolute agreement from Harbert to pay Kruger for its services and materials? We think not, and nothing in the record indicates that Kruger agreed to assume the risk of nonpayment [by the owner] for events completely outside its control or influence.”

Kruger, 829 So.2d at 739 (emphasis added).

Here, however, the subcontract includes both a pay-when-paid clause, setting forth the timing of payment, and a pay-if-paid clause, setting forth the conditions under which HLH’s right to payment arises. Unlike the pay-when-paid clause in Kruger, the pay-if-paid clause in this case expressly indicates that HLH’s right to payment under the subcontract depends on Vista Bella’s payment under the general contract. Indeed, here, HLH has “expressly assume[d] the risk of nonpayment by [Vista Bella].” Therefore, Kruger is distinguishable, and its analysis is inappo-site in this case.

Moreover, this Court has held

“that to ascertain the intent of the parties [to a contract] ‘we must first look to the contract itself, because while “[t]he intention of the parties controls in construing a written contract,” “the intention of the parties is to be derived from the contract itself where the language is plain and unambiguous.” ’ ”

Locke v. Ozark City Bd. of Educ., 910 So.2d 1247, 1251 (Ala.2005) (quoting H.R.H. Metals, Inc. v. Miller, 833 So.2d 18, 24 (Ala.2002), quoting in turn Loerch v. National Bank of Commerce of Birmingham, 624 So.2d 552, 553 (Ala.1993)).

Here, the plain and unambiguous language of paragraph 5 provides that, “Notwithstanding anything else in this Subcontract or the Contract Documents, the obligation of [Lemoine] to make any payment under this Subcontract ... is subject to the express and absolute condition precedent of payment by [Vista Bella].” Nothing in the subcontract contradicts the provisions of paragraph 5 or indicates that the parties intended to assign the risk of nonpayment in a manner different from that set forth in paragraph 5. Therefore, pursuant to the express terms of the subcontract, the timing mechanism of paragraph 4 is subject to the condition precedent of paragraph 5, and the two paragraphs are not in conflict.

Having determined that the condition precedent in paragraph 5 is enforceable, we now consider whether that condition has been satisfied. As noted previously, HLH does not dispute that Lemoine has paid all it owes HLH under the subcontract, “except the final retain-age payment and payment for the disputed extra work.” Lemoine’s brief, at 43. Lemoine argues that “[it] is not obligated to make final payment to HLH because Lemoine has not received final payment from Vista Bella.” Id., at 43-44. HLH argues, however, that it is “entitled to its full payment because the uncontradicted evidence was that Lem-oine had been paid $90,000 to $100,000 for HLH’s work above the cost of HLH’s subcontract.” HLH’s brief, at 27.

However, any amount that Lemoine had been paid “for HLH’s work above the cost of HLH’s subcontract” is irrelevant to the question whether the condition precedent in paragraph 5 has been satisfied with regard to the retainage. The record indicates that, throughout the construction of the project, Vista Bella withheld a 5% retainage on the work performed under the general contract. That retainage included amounts Vista Bella owed Lemoine for plumbing work performed on the project, including the work done by HLH under the subcontract. The record also indicates that, during the course of construction, Lemoine withheld a 5% retain-age with respect to the work performed by HLH under the subcontract. Thus, the retainage withheld under the terms of the subcontract appears to be part of the re-tainage withheld under the terms of the general contract.

It is undisputed that Vista Bella never paid Lemoine the retainage due under the general contract. Paragraph 5 of the subcontract provides that Lemoine “ha[s] no obligation to pay for any work done on this Project, until [it] has received payment for such work from [Vista Bella].” (Emphasis added.) Because Lemoine has not been paid the retainage under the general contract, the condition precedent in paragraph 5 has not been satisfied, and HLH is not entitled to final payment under the subcontract. Therefore, Lemoine has not breached the subcontract, and the trial court erred in awarding HLH damages on HLH’s breach-of-contract claim.

Finally, HLH suggests, citing no authority, that it can recover based on a theory of quantum meruit, because “Lem-oine ... got the benefit of HLH’s work and labor done and materials provided.” HLH’s brief, at 23. However, the acceptance of this argument would, as Lemoine argues, “render paragraph 5 of the subcontract meaningless.” Lemoine’s reply brief, at 5. Further, the argument is contrary to the well established principle that, “ ‘[w]hen an express contract exists, an argument based on a quantum meruit recovery in regard to an implied contract fails.’ ” Mantiply v. Mantiply, 951 So.2d 638, 656 (Ala.2006) (quoting Brannan & Guy, P.C. v. City of Montgomery, 828 So.2d 914, 921 (Ala.2002)).

For these reasons, the trial court’s judgment is reversed and the case is remanded for the entry of a judgment in favor of Lemoine.

REVERSED AND REMANDED.

COBB, C.J., and SMITH, PARKER, and SHAW, JJ., concur.

      . A retainage is "[a] percentage of what a landowner pays a contractor, withheld until the construction has been satisfactorily completed and all mechanic's liens are released or have expired.” Black's Law Dictionary 1341 ' (8th ed.2004).

      . Paragraph 3 of the subcontract provides, in pertinent part:

        "Subject to the conditions stated in this Subcontract, within 7 days after receiving a progress payment from [Vista Bella] under the contract, [Lemoine] shall make a progress payment to [HLH] equal to the value of the Completed Work, and Stored Material as of the corresponding Monthly Billing Date, to the extent approved by [Lemoine] and allowed and paid by [Vista Bella] on account of the Work, and after deducting (a) all previous payments, (b) current re-tainage (meaning a reserve equal to the Retained Percentage times the allowed value of completed Work and Stored Work, plus any extraordinary reserve provided for here) and (c) all charges or backcharges for services, materials, equipment and other items furnished or otherwise chargeable by [Lemoine] to [HLH].”

      . HLH argues that Lemoine owes it $90,102.95 and that this amount includes, among other things, charges for work HLH did in excavating and repairing a leaking gas line and charges for changes made to the water closets in unit 701 of the project. Lem-oine argues that the unpaid balance under the subcontract is $65,902, which, according to Lemoine, represents the retainage under the subcontract, less $1,500 that Lemoine attempted to pay HLH, and less $20,000 that Lemoine says was designated in the subcontract for the installation of swimming-pool-deck drains. The drains were ultimately deemed unnecessary, and Lemoine argues that a change order deducting $20,000 from the original subcontract was issued.

      . Although the trial court did not make any findings of fact or specify the basis for its judgment, HLH argues that the trial court’s award included “interest at 12% under the statute as well as ... attorney’s fees.” HLH’s brief, at 9. The "statute” to which HLH refers is § 8-29-1 et seq., Ala.Code 1975. Section 8-29-3 provides, in pertinent part:
      "(b) When a subcontractor has performed pursuant to his or her contract and submits an application or pay request for payment or an invoice for materials to a contractor in sufficient time to allow the contractor to include the application, request, or invoice in his or her own pay request.submitted to an owner, the contractor shall timely pay to the subcontractor in accordance with the payment terms agreed to by the contractor and subcontractor....

      "(d) If the owner, contractor, or subcontractor does not make payment in compliance with this chapter, the owner, contractor, or subcontractor shall be obligated to pay his or her contractor, subcontractor, or sub-subcontractor interest at the rate of one percent per month (12% per annum) on the unpaid balance due."
      Section 8-29-6 provides, in pertinent part:
      "If the court finds in the civil action that the owner, contractor, or subcontractor has not made payment in compliance with this chapter, the court shall award the interest specified in this chapter in addition to the amount due. In any such civil action, the party in whose favor a judgment is rendered shall be entitled to recover payment of reasonable attorneys' fees, court costs and reasonable expenses from the other party.”
      " '[W]hen a trial court enters a judgment in a case and does not make specific findings of fact, we must assume that the trial court found the facts necessary to support its judgment, unless the findings would be clearly erroneous and against the great weight of the evidence.' ” Ex parte Gilley, 55 So.3d 242, 245 (Ala.2010) (quoting Lakeview Townhomes v. Hunter, 567 So.2d 1287, 1289 (Ala.1990)). To award interest and attorney fees pursuant to § 8-29-6, the trial court must have concluded that Lemoine did not make payment "in accordance with the payment terms agreed to by the contractor and subcontractor,” which, in this case, would be the terms of the subcontract. Therefore, we will assume the trial court’s award was based upon HLH’s breach-of-contract claim.

      . Black’s Law Dictionary defines “condition precedent” as "[a]n act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises.” Black’s Law Dictionary 312 (8th ed.2004).

      . Although HLH makes no argument regarding its claims on an open account and on an account stated, those claims fare no better than its work-and-labor claim. " ‘A contract which is definite in all its terms ... cannot be considered a mere open account.’ ” Wal-Mart Stores, Inc. v. Anniston Dev. Co., 853 So.2d 218, 220 (Ala.2002) (quoting Union Naval Stores Co. v. Patterson, 179 Ala. 525, 529, 60 So. 807, 808 (1912)). It cannot be seriously argued that the subcontract between Lem-oine and HLH is not "definite in all its terms.” "An account stated is an agreement between parties who have had previous monetary transactions that the statement of account and the balance struck are correct and a promise, express or implied, that the debtor will pay that amount.” Gilbert v. Armstrong Oil Co., 561 So.2d 1078, 1081 (Ala.1990). Here, there is no evidence that the parties have agreed that any "statement of account and the balance struck are correct.”

      . In light of our decision to reverse the trial court's judgment, we pretermit consideration of Lemoine’s argument regarding the amount of the unpaid balance under the subcontract, including the amounts, if any, due for extra work performed on the project, and its argument regarding the award of interest and attorney fees pursuant to § 8-29-3, Ala.Code 1975.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Jimmie HOLDEN v. EDWARDS SPECIALTIES, INC.
    2080947.
    Court of Civil Appeals of Alabama.
    Dec. 18, 2009.
    Certiorari Denied Nov. 12, 2010 Alabama Supreme Court 1090418.

      Chris Messervy of Clark, Smith & Mes-servy, PC, Huntsville, for appellant.
    Judith E. Dolan of Waldrep, Stewart & Kendrick, LLC, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Jimmie Holden appeals from a summary judgment entered by the Madison Circuit Court in favor of Edwards Specialties, Inc. (“ESI”). For the reasons stated herein, we reverse the summary judgment and remand the cause.

Since 1993, Holden has resided in Madison County on property that he owns. The property is located outside the corporate limits of the City of Madison. In 2003, ESI began developing as a subdivision certain real property it owned in the City of Madison. This development was known as Windsor Parke. As part of this development, ESI constructed and developed road curbs and other improvements, including a water-detention pond located at the southeastern corner of Windsor Parke. Windsor Parke is at a higher elevation than Holden’s property. Surface water in Windsor Parke is channeled by roads, curbs, and pipes and collected into two detention ponds located on the southern boundary of Windsor Parke. The detention pond at the southeast corner of Windsor Parke ejects water through a single pipe into a ditch that flows through Holden’s property.

On April 15, 2008, Holden filed an action against ESI. He alleged that ESI’s development of Windsor Parke had increased the quantity and velocity of water that was channeled onto his property, causing flooding on his property. He alleged that the increased flow of water onto his property had caused damage to his house, including damage to the floor insulation, the HVAC ductwork, the floor registers, the crawl space, and the floor structure. He also alleged that the flooding had destroyed his central-air-conditioning unit, had caused his property to erode, and had resulted in mold in his house. Holden alleged that the flooding was ongoing and that ESI had refused to remedy it. In the first count of his complaint, Holden alleged that the flooding of his property by ESI constituted a trespass. In the second count, he alleged that ESI’s development of Windsor Parke had caused surface water to be channeled onto his property, causing damage thereto. In his third count, he asserted that ESI’s actions constituted wantonness. In his final count, Holden asserted that he was entitled to an injunction requiring that ESI prevent the channeling of surface water onto his property. ESI filed an answer in which it denied the material allegations of Holden’s complaint.

On January 15, 2009, ESI filed a motion for a summary judgment. It argued that Holden’s trespass claim failed as a matter of law because the evidence demonstrated that the volume and velocity of surface water discharged from the area on which Windsor Parke was developed actually decreased after the development of Windsor Parke. ESI argued that this decrease indicated that it had implemented its drainage system in a reasonable and lawful manner and, moreover, that it negated Holden’s cause of action for channeling surface water onto his property. ESI argued that, because Holden’s trespass claim failed, his wantonness claim failed as well. Finally, ESI argued that Holden was not entitled to the injunction he sought.

ESI attached to its brief in support of its summary-judgment motion, among other things, the affidavit of Billy Hayden Smith, a licensed engineer. After recounting his credentials, Smith indicated that he had inspected the property at issue, had reviewed documents and materials associated with the development of Windsor Parke, and had prepared drainage calculations pertaining to the development of Windsor Parke. He opined that the post-development detention pond located at the southeast corner of Windsor Parke had actually reduced the amount of peak runoff through the culvert located on Holden’s property from 61.3 cubic feet per second to 58.2 cubic feet per second. ESI also attached to its brief excerpts from Holden’s deposition in which he testified that water had entered the crawl space of his house on one or two occasions before the development of Windsor Parke.

On February 23, 2009, Holden filed a response to ESI’s summary-judgment motion in which he argued that Windsor Parke’s drainage system interfered with his possessory rights with regard to his property “by completely flooding his property and home during heavy rains,” which had caused substantial damage to his property. To his response, Holden attached additional excerpts from his deposition in which he had testified that he first began experiencing the problems listed in his complaint immediately after ESI completed construction of the detention pond at issue. Holden also attached to his response the affidavit of Bryant Mastín, who resided on the property immediately north of Holden’s property. Among other things, Mastín stated:

“When Windsor Park[e] was built, a drainage system was built that emptied water from a detention pond into an existing ditch that ran between my property and [Holdenj’s property. When it rains heavily, I have observed the ditch overflow and water flooding my front and back yard as well as [Holdenj’s front and back yards and other surrounding neighbors. Windsor Park[ej was built at a higher level than our property which has further caused water to enter onto our land. Windsor Park[e] contains a detention pond that gathers water from the Windsor Park[e] subdivision. The pond drains into the ditch that runs between our properties. This drainage system was developed by [ESI], I have observed the water from the detention pond drain into the ditch. When it rains heavily, too much water flows from the detention pond into the ditch, and the ditch cannot maintain the amount of water flowing from the detention pond. Basically, the ditch is too small for the amount of water flowing from the detention pond, or the amount of water permitted to flow from the detention pond into the ditch is too much for the ditch to handle. When the water overflows, my property is flooded in both the front and back yards. I cannot even come out of my house. I have brought gravel in to fill my yard but the water washed it away. The water rises high enough on my property to flood the floorboards of my vehicles. This did not occur prior to the Windsor Park[e] subdivision. [Holdenj’s property floods similar to my property. However, [Holdenj’s property floods worse than mine because [Holden]’s property is at the bottom of the incline into Windsor Park[e]. The run-off from the subdivision gathers in [Holden]’s yard.”

Holden also attached to his response the affidavit of Reginald Williams, another of his neighbors, in which Williams provided his educational background, indicated that he was an engineering manager in an automobile plant, and opined that the flooding of which Holden complained was caused by the design of the drainage system in Windsor Parke. He stated that he had made his concerns known to city officials and representatives from ESI but that nothing had been done in response to his concerns.

On April 1, 2009, ESI filed motions to strike the affidavits of Mastín and Williams. In its motion to strike Mastin’s affidavit, ESI argued that Mastin’s affidavit contained “speculative and conclusory statements” that Mastín was not qualified to make, including his statement that the ditch was too small to handle the amount of water flowing into it from the detention pond. It argued that Mastín “failed to explain how he concluded that Windsor Parke’s detention pond ha[d] caused and/or contributed to the water flow described in his affidavit” and that Mastín “offerfed] no measurements, calculations, or studies to support his conclusory statements.”

In its motion to strike Williams’s affidavit, ESI argued that, because Williams was not a licensed engineer, he was precluded by law from offering an expert opinion. ESI also argued that Williams’s affidavit lacked a factual predicate for his conclusions and that the affidavit contained inadmissible hearsay.

In response to ESI’s motion to strike Mastin’s affidavit, Holden argued that Mastin’s affidavit testimony was based on Mastin’s observations, of which Mastín had personal knowledge. Holden argued that, pursuant to Rule 602, Ala. R. Evid., a witness can testify to matters of which that witness has personal knowledge. In response to ESI’s motion to strike Williams’s affidavit, Holden argued that Williams’s affidavit testimony was based on Williams’s personal observations, about which Williams was competent to testify. He also argued that Williams’s conclusions were based on general principles of engineering, physics, and water mechanics, of which Williams had expertise. He also argued that Williams was not required to be a licensed engineer to offer expert testimony.

On April 9, 2009, the trial court held a hearing on the pending motions. On April 14, 2009, it entered an order striking Mas-tin’s and Williams’s affidavits and granting ESI’s summary-judgment motion. Holden filed a timely appeal to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The standard by which this court reviews a summary judgment is well settled.

“On appeal, this Court reviews a summary judgment de novo, applying the same standard of review as did the trial court. Hornsby v. Sessions, 703 So.2d 932 (Ala.1997). To defeat a summary judgment, the nonmoving party must show substantial evidence creating a genuine issue of material fact. Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999). ‘Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the mov-ant.’ Hobson v. American Cast Iron Pipe Co., 690 So.2d 841, 344 (Ala.1997).”

Holt v. Lauderdale County, 26 So.3d 401, 403 (Ala.2008). “A trial court’s determination whether to admit or exclude testimony will not be disturbed on appeal unless the trial court exceeded its discretion.” Greener v. Killough, 1 So.3d 93, 100-01 (Ala.Civ.App.2008).

On appeal, Holden contends that the trial court erred when it struck the affidavits of Mastín and Williams. He argues that, pursuant to Rule 602, Ala. R. Evid., a witness may testify to a matter of which that witness has personal knowledge. He asserts that, as his neighbors, both Mastín and Williams had personal knowledge of what they observed and that their testimony established that they were in a position to observe, and did observe, the facts on which their testimony was based. ■ He also argues that their affidavit testimony created a genuine issue of material fact precluding the summary judgment the trial court entered in favor of ESI.

Rule 602, Ala. R. Evid., provides in pertinent part that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’s own testimony.” Rule 602 is satisfied when the proffered testimony is rationally based on the witness’s own perceptions. See Allen v. Hill, 758 So.2d 574, 576 (Ala.Civ.App.1999).

We conclude that the trial court erred when it excluded Mastin’s affidavit. Mastin’s affidavit testimony, recounted above, is based on his personal knowledge drawn from his personal observations. The passage in Mastin’s affidavit to which ESI objected reads:

“When it rains heavily, too much water flows from the detention pond into the ditch, and the ditch cannot maintain the amount of water flowing from the detention pond. Basically, the ditch is too small for the amount of water flowing from the detention pond, or the amount of water permitted to flow from the detention pond into the ditch is too much for the ditch to handle.”

Previously in his affidavit, Mastín had established that he had personally observed the ditch between his and Holden’s property overflow when it rained heavily and that he had observed the water gathered in the detention pond drain into the ditch. Thus, his statement that, during heavy rains, more water flowed into the ditch from the detention pond than the ditch could contain was based on his personal observations and the readily apparent inference that the overflowing of the ditch was caused by the volume of the water exceeding the available space in the ditch. ESI takes issue with Mastin’s failure to base his statements on calculations of the amount of the water flowing into the ditch and measurements of the ditch. We do not construe the affidavit as a scientific determination of the adequacy of the ditch or a technical determination regarding the volume of water that the ditch could contain. Such calculations and measurements were unnecessary given the fact that Mas-tín personally observed the flooding of the ditch from water flowing from the detention pond that occurred during heavy rains.

Because Mastin’s affidavit testimony was based on his personal observations and perceptions, the trial court exceeded its discretion when it struck his affidavit. See Allen v. Hill, 758 So.2d at 576 (finding error in trial court’s exclusion of deposition testimony of witness when the testimony was rationally based on his own perceptions). As discussed below, because Mas-tin’s affidavit was sufficient to create a genuine issue of material fact precluding summary judgment, we pretermit consideration of whether the trial exceeded its discretion when it struck Williams’s affidavit.

ESI argues correctly that when, as in this case, the dominant estate is located within a municipality and the ser-vient estate is located outside the municipality, the “modified civil law rule” applies in determining the parties’ rights regarding the flow of surface waters. Street v. Tackett, 494 So.2d 13, 15 (Ala.1986) (emphasis omitted). Under the modified civil law rule, “the upper land owner can alter the flow of surface water to improve his property; however, he has a duty not to unduly burden the lower property by causing substantial damage and not to unreasonably interfere with the possessory rights of the lower landowner.” Id. As previously noted, ESI sought a summary judgment on the basis of its affirmative evidence demonstrating that its construction of the detention pond reduced the flow of water into the ditch, rather than increasing it as alleged by Holden. Thus, it argued that, because “the post-development drainage calculations show that the volume and velocity of surface water discharge and run-off is less than it was prior to the development of Windsor Parke, ... it implemented drainage systems in a reasonable and lawful manner.”

Mastin’s affidavit testimony, and the inferences to be derived therefrom, created a genuine issue of material fact with regard to the basis on which ESI sought a summary judgment. Particularly, Mastin’s affidavit indicates that ESI’s detention pond discharged an amount of surface water that caused the ditch to overflow and that this overflow resulted in the flooding of both his property and Holden’s property. Mastín testified that the flooding he observed did not occur before ESI’s construction of the detention pond. A reasonable fact-finder could conclude, based on Mastin’s affidavit testimony, that ESI’s construction of the detention pond resulted in the casting of a larger volume of water into the ditch than had previously been cast into the ditch, resulting in the flooding of which Holden complained. Because the basis of ESI’s summary-judgment motion was that its detention pond had decreased the volume of water flowing into the ditch, Holden carried his summary-judgment burden of proffering substantial evidence demonstrating a genuine issue of material fact. As a result, the trial court erred when it entered a summary judgment in favor of ESI.

Based on the foregoing, we conclude that the trial court exceeded its discretion when it excluded Mastin’s affidavit and that that affidavit demonstrated a genuine issue of material fact precluding the trial court’s summary judgment. Thus, we reverse the trial court’s order striking Mas-tin’s affidavit, we reverse the trial court’s summary judgment in favor of ESI, and we remand the cause to the trial court for further proceedings.

REVERSED AND REMANDED.

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


author: MOORE, Judge.

text:
    Lerone RAMSON v. Dwonna BRITTIN.
    2090877.
    Court of Civil Appeals of Alabama.
    Nov. 12, 2010.
    Michael J. Crow of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for appellant.
    Michael S. Jackson of Beers, Anderson, Jackson, Patty & Fawal, P.C., Montgomery, for appellee.
   MOORE, Judge.

Lerone 'Ramson appeals from a summary judgment entered by the Montgomery Circuit Court (“the trial court”) in favor of Dwonna Brittin. We affirm.

The record, when viewed in a light most favorable to Ramson, the nonmovant, see Johnson v. Jester, 941 So.2d 307, 312 (Ala.Civ.App.2006), shows that Ramson occasionally would perform yard work for Brit-tin at her home to earn extra money. On August 15, 2009, Ramson went to Brittin’s home to cut tree limbs. He took with him an extension ladder that reached as high as 14 feet, a smaller 6-foot ladder, and cutting tools referred to as “loppers” and “a little hand saw.” Ramson did not take with him a tie-off rope or harness to prevent him from falling.

After witnessing Ramson climb the extension ladder to cut the first tree limb, Brittin expressed concern at the height of the job. Ramson thus asked Brittin to hold the ladder, which she did. After successfully cutting the first limb, Ramson climbed down, moved the ladder, and climbed back up to cut a second limb, with Brittin continuing to hold the ladder. Ramson repeated this maneuver a third time. Ramson, however, did not assure that Brittin was holding the ladder on the third occasion before he started cutting the third limb. As it turns out, Brittin had walked off to gather the previously cut limbs, leaving the ladder without additional support. While Ramson was reaching out to cut the third limb, “figuring] that [Brit-tin] should have been holding the ladder,” the extension ladder fell from beneath him. Ramson grabbed the branch he was cutting and yelled for Brittin. When Brittin returned, because Ramson did not believe Brittin could lift the extension ladder, Ramson instructed Brittin to gather the six-foot ladder he had brought with him and to place it underneath him in order to break his fall. After Brittin went and retrieved the smaller ladder and placed it underneath Ramson, Ramson released his grip, which caused him to fall. Ramson broke both of his wrists when he fell.

On October 14, 2009, Ramson filed a complaint against Brittin, alleging that Brittin had negligently or wantonly failed to secure the ladder. Brittin filed her answer on November 13, 2009, denying the material allegations of the complaint and asserting various affirmative defenses, including contributory negligence. After deposing Ramson, Brittin filed a motion for a summary judgment on April 5, 2010, arguing that Ramson was a business invitee who had not been injured by a defect in the premises, that she had no duty to hold the ladder, that there was no evidence indicating that the accident would have been avoided had Brittin held the ladder, and that Ramson had been contributorily negligent as a matter of law by not using safe means and methods of performing the work for which he had contracted. Ram-son filed a brief in response to the summary-judgment motion, attaching excerpts from Brittin’s deposition and arguing that he had not asserted a premises-liability claim, that Brittin had voluntarily undertaken a duty to secure the ladder, that Brittin had breached her duty by walking off when Ramson climbed the ladder the third time, and that Brittin had not proven contributory negligence as a matter of law. After conducting a hearing on . the summary-judgment motion, the trial court entered an order on May 7, 2010, granting the motion without stating its reasons for doing so. Ramson then timely appealed to this court.

“A party is entitled to a summary judgment when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Rule 56(c), Ala. R. Civ. P. ‘Our standard of review in cases involving summary judgments is de novo.’ Lee v. Burdette, 715 So.2d 804, 806 (Ala.Civ.App.1998). ‘In reviewing the disposition of a motion for [a] summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact’ and whether the movant ‘is entitled to a judgment as a matter of law.’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c)(3), Ala. R. Civ. P. ‘[I]f the moving party makes a prima facie showing that no genuine issue of material fact exists, then the burden ... shifts to the non-movant; ... the non-movant must show “substantial evidence” in support of his position.’ Bass v. SouthTrust Bank, 538 So.2d 794, 798 (Ala.1989). Evidence is ‘substantial’ if it is ‘of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala.1989). Our review is further subject to the caveat that this court must review the record in a light that is most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Prince v. Wal-Mart Stores, Inc., 804 So.2d 1102, 1103-04 (Ala.Civ.App.2001).

On appeal, Ramson argues that the trial court erred in entering a summary judgment on his negligence claim for the same reasons he asserted in the trial court. We do not address those arguments, however, because we conclude that, even if they are meritorious, Ramson has waived any argument that the trial court erred in entering a summary judgment on the issue of proximate causation.

Assuming that Ramson’s claim is governed by negligence principles, see Orr v. Turney, 535 So.2d 150 (Ala.1988), that Brittin voluntarily assumed a duty to hold the ladder, see Cox v. Dick, 31 N.C.App. 565, 568, 229 S.E.2d 843, 845 (1976) (“When defendant agreed to hold the ladder for plaintiff he assumed and therefore owed plaintiff a legal duty.”), and that Brittin breached that duty by walking away from the ladder while Ramson cut the third limb, see Wuellner v. Crescent Planing Mill Co., 303 Mo. 38, 259 S.W. 764 (1923) (foreman breached duty of care by releasing hold on ladder thereby causing it to fall), those facts alone do not constitute negligence. In addition, Ramson would have to prove proximate causation and damages. Jones Food Co. v. Shipman, 981 So.2d 355, 361 (Ala.2006). In her summary-judgment motion, Brittin did not contest damages, but she did argue that Ramson could not produce substantial evidence of proximate causation, i.e., “an act or omission that in a natural and continuous sequence, unbroken by any new independent causes, produces the injury and without which the injury would not have occurred. Thetford v. City of Clanton, 605 So.2d 835, 840 (Ala.1992).” Martin v. Arnold, 643 So.2d 564, 567 (Ala.1994). Specifically, Brittin asserted in her summary-judgment motion that, even if she had continued to hold the ladder, due to her insufficient strength, in all probability she would not have been able to prevent the ladder from falling and that Ramson was only speculating that Brittin had negligently caused the accident by walking away from the ladder. See Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (holding that summary-judgment movant may satisfy his or her burden of production under Rule 56, Ala. R. Civ. P., “ ‘by demonstrating to the trial court that the nonmovant’s evidence is insufficient to establish an essential element of the non-movant’s claim’ ” (quoting Berner v. Caldwell, 543 So.2d 686, 688 (Ala.1989) (Houston, J., concurring specially))).

After carefully reviewing the record, we conclude that Ramson did not respond to Brittin’s proximate-cause argument. His brief filed with the trial court does not even mention the argument, much less attempt to explain why it should not prevail. Although a lack of response will not automatically result in the entry of a summary judgment, a party will risk having a summary judgment entered against him or her if granting the summary-judgment motion is appropriate on the merits. Ex parte Oden, 617 So.2d 1020 (Ala.1992). As noted, the trial court did not state its basis for entering the summary judgment. In such cases, we must presume that the trial court relied on every ground asserted in the summary-judgment motion. See Soutullo v. Mobile County, 58 So.3d 733 (Ala.2010). Hence, in this case, we presume the trial court found the proximate-cause argument made by Brittin to be meritorious.

We note that, “[tjypically, the question of proximate causation is a question of fact to be resolved by the jury; that question must be decided by the jury if reasonable inferences from the evidence support the plaintiffs claim.” Miller v. Cleckler, 51 So.3d 379, 383 (Ala.Civ.App.2010). The fact that Brittin had twice held the ladder without incident while Ramson had performed the same cutting maneuver could imply that she would have been able to safely hold the ladder a third time so as to avoid the accident, making proximate causation a question for the jury. However, Ramson has not made that argument, or any other argument regarding the proximate-cause issue, on appeal. It is not the function of an appellate court to advocate a position on behalf of an appellant. Schiesz v. Schiesz, 941 So.2d 279, 289 (Ala.Civ.App.2006). Thus, we have no choice but to affirm the trial court’s judgment insofar as it determined that Brittin was entitled to a summary judgment as to the proximate-cause issue. Soutullo, 58 So.3d at 739 (“This waiver, namely, the failure of the appellant to discuss in the opening brief an issue on which the trial court might have relied as a basis for its judgment, results in an affirmance of that judgment.”).

Because we affirm the summary judgment on that ground, we need not discuss Ramson’s argument that the trial court erred in any other respect in entering the summary judgment, including on the ground of his alleged contributory negligence.

AFFIRMED.

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

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

      . Brittin cited only the deposition testimony of Ramson in her narrative summary of undisputed material facts; however, through oversight, Brittin did not attach the excerpts of the deposition. On appeal, Ramson argues that Brittin did not satisfy her burden of production under Rule 56, Ala. R. Civ. P., because she omitted the deposition excerpts. However, Ramson did not raise that argument in the trial court. "This Court cannot consider arguments advanced for the purpose of reversing the judgment of a trial court when those arguments were never presented to the trial court for consideration or were raised for the first time on appeal.” State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.2005). Moreover, we note that, both at the trial-court level and on appeal, Ramson does not contest the salient facts asserted in the summary-judgment motion filed by Brittin; rather, he actually agrees with them.

      . Ramson does not argue any error in regard to the entry of a summary judgment on the wantonness claim; therefore, we consider that argument waived under Rule 28(a)(10), Ala. R.App. P., and we affirm the summary judgment as to the wantonness claim.

      . At several points in his appellate brief, Ram-son asserts that Brittin let go of the ladder, causing it, and him, to fall. However, Ram-son nowhere attacks the validity or sufficiency, factually or legally, of Brittin’s argument that had she maintained her grip on the ladder, she still could not have prevented the ladder, or Ramson, from falling.


text:
    W. Samuel COUSINS v. Patricia McNEEL.
    2090803.
    Court of Civil Appeals of Alabama.
    Nov. 19, 2010.

      Regina B. Edwards and Brandon C. Stone, Wetumpka, for appellant.
    Alan T. Hargrove, Jr., R. Mac Freeman, Jr., James R. Dickens, Jr., and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.
   MOORE, Judge.

This is a boundary-line dispute between two landowners. W. Samuel Cousins appeals from a summary judgment entered by the Autauga Circuit Court (“the trial court”) in favor of Patricia McNeel. In that judgment, the trial court declared McNeel the owner of a disputed strip of property (“the disputed property”) located on the eastern boundary of McNeel’s property and on the western boundary of Cousins’s property. The trial court also established the boundary line of the two parcels. We reverse.

Background

Construing, as we must on review of a summary judgment, the evidence in favor of the nonmovant, see Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 793 (Ala.2007) — in this case, Cousins — the record establishes the following. In May 2000, McNeel received record title to property lying in Sections 4 and 9, Township 17, Range 13, of Autauga County. The deed conveying the property to McNeel relied on the existence of a fence running between McNeel’s property and the adjacent property located directly to the east to establish at least a portion of the eastern boundary line of McNeel’s property.

In 1978, George Houston received title to property adjacent to and east of McNeel’s property; Houston’s property was also located in various Sections of Township 17. From Houston’s chain of title, it appears that the property had been in Houston’s family since 1922. It was undisputed that a creek was located near a portion of the western boundary of Houston’s property and near a portion of the eastern boundary of McNeel’s property.

In November 2004, Houston conveyed a portion of his property to Cousins by warranty deed; the conveyance to Cousins included property located in Sections 3, 4, 9, and 10 of Township 17, Range 13. It is undisputed that the property conveyed by Houston to Cousins was contiguous to MeNeel’s property. Before the conveyance, Cousins, along with James Gunnels and Cade Gunnels, met with Houston to discuss the boundary lines of the property to be conveyed. Cousins submitted an affidavit regarding what Houston had told them at that meeting:

“Mr. Houston told the three of us that the creek has always formed the western boundary line of the property. He stated that a fence ran along this creek and showed the boundary for many years. He explained that the fence mostly ran along the eastern side of the creek, and ran across the creek a few times close to the road. He explained, however, that the problem with the fence’s location alongside or sometimes across the creek, was that every time the creek flooded, it would wash away portions of the fence and let cows and other animals roam from his property.
“Mr. Houston further told us that to keep the fence from washing away, his father and the adjoining owner agreed to dam the creek and form a pond. They agreed that they would share ownership of this pond, and that it would also serve as the boundary of their two properties. Mr. Houston mentioned that this agreement was made and the pond was built so long ago that workers used buckets and mules to build the dam which formed the pond.
“Mr. Houston went on to say that the pond waters had risen several times to such a level that they feared the dam would give way and flood a hog farm, which was downstream of the former creek. To prevent this, the dam was broken up during the dry season and the creek began to flow as it did before the construction of the pond. The flowing of the creek raised the issue once again of the fence washing away which ran along the creek.
“The Houston family decided at this time, Mr. Houston stated, to back the fence up and move it to a more eastward position, in order to prevent any more fences from washing away. He did not state exactly when this fence was relocated, but I gathered that it has been twenty or more years. This served the purpose of keeping the animals on the property, and is where the fence currently lies today. Mr. Houston never suggested in any way that the fence in the newer position (where it is now) is or has ever been the western boundary of the property. Mr. Houston also never suggested in any way that he was unsure of the exact boundary of the property, or that the boundaries had ever been disputed.
“Mr. Houston has also told me several times that there are no fenced boundaries on the property.”

The affidavit testimony of James Gunnels and Cade Gunnels supported Cousins’s testimony in all significant respects.

Michael S. Vaughn served as Houston’s real-estate agent for the sale of the property to Cousins. According to Vaughn’s affidavit, Houston also had indicated to him that a natural creek formed the western boundary of the property.

Before the closing, Cousins requested a survey to ascertain the boundary lines of the property to be conveyed to him; Ron-aid Burke was hired to perform that survey. Burke ascertained from public tax maps that the western boundary of Houston’s property was, in fact, located along the creek. Cousins proceeded with the purchase of the property from Houston. It is undisputed that the warranty deed by which Houston conveyed title to the property to Cousins purported to include the disputed property. After the closing, Cousins harvested timber from the disputed property.

On February 23, 2007, McNeel sued Cousins in the Autauga Circuit Court. McNeel sought a judgment establishing the boundary line between her property and Cousins’s property. McNeel asserted claims, pursuant to Ala.Code 1975, § 35-14-2, and pursuant to Ala.Code 1975, § 9-13-62, based on the cutting and removal of the timber. She also included in her complaint a common-law action to recover the value of the timber cut, a claim of trespass, and a claim of negligence and/or wantonness.

Cousins answered the complaint, asserting that he was the record owner of the disputed property or, alternatively, that, through the doctrine of prescriptive or statutory adverse possession and tacking, he owned the disputed property. Cousins also counterclaimed against McNeel, seeking a judgment declaring that he owned the disputed property. Cousins subsequently asserted a third-party complaint against Houston, alleging that, if McNeel was successful in her claims against Cousins, Cousins was entitled to damages arising from Houston’s breach of the warranty deed.

On August 31, 2009, McNeel moved for a summary judgment in her favor, and, on January 4, 2010, after hearing arguments, the trial court entered a summary judgment in favor of McNeel. In that judgment, the trial court declared that Houston had never held an ownership interest in the disputed property and declared void those portions of the warranty deed in which Houston had purported to convey to Cousins the disputed property. The trial court determined the boundary line between the parcels belonging to McNeel and Cousins as follows:

“In the SE 1/1 of Section U, Township 17, Range 13, Autauga County, Alabama—
“Commencing at the Southeast corner of Section 4, Township 17, Range 13, Au-tauga County, Alabama, thence west along the South line of said Section 4, 361.5 feet to the point of beginning; thence North 361.5 feet; thence East to the East line of said Section 4, 361.5 feet; thence North along the East line of said Section 4 to the Northeast Corner of the Southeast Quarter of said Section 4.
“In the NE 1/1 of Section 9, Township 17, Range 13, Autauga County, Alabama—
“Commencing in the Independence Road 24.32 chains South from the Northwest corner of Section 10, Township 17, Range 13, Autauga County, Alabama; thence North 24.32 chains, thence West 7.26 chains to the point of beginning; thence South 20 degrees West 22.80 chains; thence South 15 degrees West 7.50 chains to a point on said Independence Road.”

The trial court stated that it was scheduling a hearing to address damages to be imposed against Cousins as a result of his cutting timber on the disputed property.

On February 2, 2010, Cousins moved the trial court, purportedly pursuant to Rule 59, Ala. R. Civ. P., to alter, amend, or vacate its January 4, 2010, judgment. The trial court denied that motion on March 22, 2010, by entry of an order in the State Judicial Information System. The trial court also certified the January 4, 2010, summary judgment as final, pursuant to 54(b), Ala. R. Civ. P.

Cousins timely filed his notice of appeal; that appeal was transferred, pursuant to Ala.Code 1976, § 12-2-7(6), to this court. The trial court stayed its consideration of the remaining claims pending our resolution of Cousins’s appeal.

Standard of Review

“ ‘We review the trial court’s grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the nonmovant must then present substantial evidence creating a genuine issue of material fact. Id. “We review the evidence in a light most favorable to the nonmovant.” 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006).’ ”

Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 793 (Ala.2007) (quoting Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala.2006)).

Analysis

Cousins asserts that the trial court erred in entering a summary judgment in favor of McNeel because, he says, McNeel failed to properly support her motion, as required by Rule 56, Ala. R. Civ. P. Cousins asserts that McNeel failed to support her summary-judgment motion with her affidavit attesting to the statements of fact made in her summary-judgment brief and that she failed to authenticate any of the documents submitted in support of her summary-judgment motion. See Rule 56(e), Ala. R. Civ. P. (addressing the form required for supporting affidavits and sworn or certified copies of all papers or parts thereof attached to a summary-judgment motion), and Rule 44, Ala. R. Civ. P. (addressing the form of authentication required for the admission of documents and records into evidence).

Cousins timely objected to the trial court’s consideration of the unauthenticated documents submitted by McNeel by raising the issue in his opposition to McNeel’s summary-judgment motion. See Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 313 (Ala.2001) (recognizing that an objection to a trial court’s consideration of unauthenticated materials submitted in support of a summary-judgment motion need not take any particular form); and Shows v. Donnell Trucking Co., 631 So.2d 1010, 1013 (Ala.1994) (recognizing that the trial court properly struck documents submitted in opposition to a summary-judgment motion because they were unauthenticated and a timely objection to those documents had been raised).

Cousins, however, provided the missing authentication for some, but not all, of those documents by submitting the same documents in authenticated form in support of his opposition to McNeel’s summary-judgment motion. Thus, in considering McNeel’s motion, the trial court was entitled to consider the 2000 deed to McNeel, the 1978 deed to Houston, and the 2004 deed from Houston to Cousins despite the fact that McNeel had failed to authenticate those documents.

Cousins’s submission and authentication of those deeds, however, could not rectify McNeel’s failure to establish, either by affidavit or other sworn testimony, her personal knowledge of the facts asserted in support of her summary-judgment motion. See Rule 56(c), Ala. R. Civ. P. (requiring movant to support a summary-judgment motion with a narrative statement of what the movant contends to be the undisputed facts supported by specific references to pleadings, discovery materials, and affidavits); and Rule 56(e) (requiring affidavits to be made on personal knowledge and to state such facts as would be admissible in evidence to show that the affiant is competent to testify to the matters stated therein). See also Harold Brown Builders, Inc. v. Jordan Co., 401 So.2d 86 (Ala.1981) (rejecting the argument that an affidavit was required in support of a summary-judgment motion because the movant submitted other sworn testimony, i.e., deposition testimony, to support that motion). McNeel filed no affidavit or deposition testimony and, as a result, the brief filed in support of McNeel’s summary-judgment motion lacks evidentiary support for the statements of fact made therein.

In support of her summary-judgment motion, McNeel also repeatedly cited to her complaint as supporting evidence. The allegations of her complaint, however, offer no support in obtaining a summary judgment. See Public Relations Counsel, Inc. v. City of Mobile, 565 So.2d 78, 80 (Ala.1990) (“[A] Rule 56 motion allows the trial court to test the sufficiency of the evidence presented so as to determine if any real issues exist.”); and Sizemore v. Owner-Operator Indep. Drivers Ass’n, Inc., 671 So.2d 674, 675 (Ala.Civ.App.1995) (recognizing that a party may not rest upon the mere allegations or denials of his or her pleadings in supporting or opposing a motion for a summary judgment but must set forth specific facts showing that a genuine issue for trial exist).

Thus, it is debatable whether the burden of proof to establish the existence of material issues of fact ever shifted from McNeel to Cousins. We need not consider that issue further, however, because we conclude that, even if McNeel’s submission in support of her summary-judgment motion was sufficient to shift the burden of proof to Cousins, genuine issues of fact remain as to the true location of the boundary line and as to Cousins’s counterclaim alleging adverse possession.

Our supreme court has held that it is error for a trial court to establish a boundary line that is not supported by the evidence presented by either landowner in a boundary-line dispute. See Wilson v. Cooper, 256 Ala. 184, 54 So.2d 286 (1951). Cousins correctly points out that McNeel’s 2000 deed references a fence running between McNeel’s property and the adjacent property to the east, i.e., the property then owned by Houston and now owned by Cousins, to establish the eastern boundary line of some or all of the property conveyed to her; some or all of that boundary line is at issue in this action. Construing the evidence in the record in a light most favorable to Cousins, we must conclude that that fence has been moved from its original location and, thus, no longer marks the boundary line between the coterminous properties. Other than the affidavit testimony offered by Cousins, the trial court received no evidence regarding the former location of that fence.

Additionally, Houston admitted that he had represented to Cousins that “there ha[d] never been any fenced boundaries on the property [Houston] was selling in 2004.” (Emphasis added.) That admission contradicts the language in the 2000 deed to McNeel, which purportedly relied on a fence as the eastern boundary line of McNeel’s property. Cousins’s claim that the creek was represented as the western boundary of Houston’s property is further buttressed by Burke’s testimony regarding his findings in the tax records, i.e., that the tax maps indicated the creek to be the western boundary of the property conveyed by Houston to Cousins.

For these reasons, we conclude that genuine issues of material fact exist regarding the location of the boundary line. As a result, McNeel was not entitled to a summary judgment. See Rule 56; and Wilson v. Cooper, supra.

Cousins also asserted a counterclaim for adverse possession to the disputed property. Although not expressly addressed by the trial court in its January 4, 2010, order, the trial court implicitly entered a summary judgment in favor of McNeel as to that claim by concluding that “neither Houston nor ... Cousins has ever had any legitimate interest in any portion of the [disputed property].” See Ala.Code 1975, § 35-3-2 (recognizing that, in a boundary-line dispute, “[t]he court shall determine any adverse claims in respect to any portion of the land involved for which it may be necessary to determine for a complete settlement of the boundary lines”).

“Our Supreme Court has consistently held that ‘where a case involves a boundary dispute between coterminous landowners, title may be acquired by an adverse possession period of only 10 years.’ E.g., Moss v. Woodrow Reynolds & Son Timber Co., 592 So.2d 1029, 1030 (Ala.1992); Sashinger v. Wynn, 571 So.2d 1065, 1067 (Ala.1990); Sims v. Vandiver, 504 So.2d 250, 252 (Ala.1987). A party claiming ownership of property by adverse possession must prove by clear and convincing evidence that there was ‘actual, hostile, open, notorious, exclusive, and continuous’ possession of the property for the required period of time. Grooms v. Mitchell, 426 So.2d 820, 822 (Ala.1983). ‘[T]he burden of proof rests upon the party asserting adverse possession, and every presumption is in favor of the holder of legal title.’ Lee v. Brown, 482 So.2d 293, 295 (Ala.1985). ‘The presence of a fence, which is an outstanding symbol of possession, coupled with normal acts of use in appropriation of the land, sufficiently satisfies the requirements of adverse possession.’ Bearden v. Ellison, 560 So.2d 1042, 1045 (Ala.1990).”

Kendrick v. Kendrick, 10 So.3d 1000, 1002-03 (Ala.Civ.App.2006).

Additionally, “tacking of periods of possession by successive possessors is permitted against the coterminous owner seeking to defeat [a claim of adverse possession], unless there is a finding, supported by the evidence, that the claimant’s predecessor in title did not intend to convey the disputed strip.” Watson v. Price, 356 So.2d 625, 627 (Ala.1978).

The evidence establishes that Houston conveyed to Cousins property located in Sections 3, 4, 9, and 10 of Township 17, Range 13, of Autauga County. In his affidavit, Houston stated:

“I am personally familiar with the common boundary line between the Houston Property and the McNeel Property in ... Section 4 and ... Section 9.... During my ownership of the Houston Property, the McNeel family and I recognized and accepted the east property line of the McNeel Property as described in the McNeel Deed to be the common boundary line between the Houston Property and the McNeel Property. At no time during my ownership did I possess or claim ownership of any portion of the McNeel Property.”

As discussed above, however, McNeel’s deed relies on the unidentified location of a fence to establish the eastern boundary of her property in Section 9. Genuine issues of disputed fact exist as to the original location of that fence; Houston’s affidavit does nothing to resolve that dispute.

Additionally, it is undisputed that the warranty deed from Houston to Cousins included the disputed property in the description of the property conveyed. Thus, the deed evidences an intent to convey the disputed property. The affidavit testimony of Cousins, James Gunnels, Cade Gunnels, and Vaughn also indicated that Houston had represented to all of them that the western boundary of the property conveyed to Cousins was the creek, again evidencing a claim to the disputed property. Cousins’s affidavit also tends to establish that Houston had previously represented that he and/or his family had farmed livestock on the disputed property and that they had relocated a fence away from the creek to protect their livestock and not because his family had no claim to the disputed property. Further, although Houston denied that he and his predecessors had paid the taxes on the disputed property for more than 20 years preceding the 2004 conveyance to Cousins, Burke’s testimony tended to dispute Houston’s claim. Viewing, as we must, the evidence in the light most favorable to Cousins, we conclude that genuine issues of material fact exist as to Cousins’s claim of adverse possession. Thus, the issue was inappropriate for summary-judgment disposition. See Rule 56;- see also Wadsworth v. Thompson, 912 So.2d 529, 533-34 (Ala.Civ.App.2005) (concluding that genuine issues of material fact existed as to landowner’s claim of adverse possession and reversing summary judgment entered in favor of neighbor); and Kendrick v. Kendrick, 10 So.3d at 1003-04 (reversing a summary judgment entered on an adverse-possession claim because triable issues existed).

We reverse the trial court’s summary judgment in favor of McNeel, and we remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . That property was conveyed to McNeel, individually, by McNeel and her husband. Therefore, McNeel’s ownership of that property existed before 2000.

      . We are also unable to determine from the evidence in the record if the boundary line established by the trial court purported to follow the location of the existing fence, the old fence, or neither.


text:
    ALABAMA DEPARTMENT OF INDUSTRIAL RELATIONS v. Laronica SMITH.
    2090775.
    Court of Civil Appeals of Alabama.
    Nov. 19, 2010.

      Frank D. Marsh, gen. counsel, and Shirley Z. Brown, deputy gen. counsel, Alabama Department of Industrial Relations, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Presiding Judge.

The Alabama Department of Industrial Relations (“the Department”) appeals a judgment determining that Laronica Smith was entitled to receive unemployment-compensation benefits.

The record indicates that Smith was employed by Dr. Bobby J. Dunn, a psychiatrist, as an administrative secretary from September 12, 2008, until January 28, 2009. It is undisputed that on January 28, 2009, Dunn asked Smith to sign two confidentiality agreements. Smith did not sign the confidentiality agreements, and she left the premises where Dunn’s office is located.

Smith contended that her employment was terminated, and she sought unemployment-compensation benefits. Dunn opposed Smith’s application for unemployment-compensation benefits, and Smith’s request for benefits was denied. Smith appealed that decision, and the Department’s administrative hearing officer conducted a hearing. The hearing officer received ore tenus evidence from Dunn, who testified under oath. Smith did not appear at that administrative hearing. On May 15, 2009, the administrative hearing officer issued a decision concluding that Smith was not entitled to receive unemployment-compensation benefits. The hearing officer found that Smith had voluntarily left her employment without good cause and, therefore, that she was disqualified under § 25-4-78(2), Ala.Code 1975, from receiving unemployment-compensation benefits.

Smith appealed the decision of the administrative hearing officer to the State Board of Appeals (“the Board”) for the Department, which denied Smith’s application for leave to appeal. Smith, pursuant to § 25-4-95, Ala.Code 1975, then appealed to the Montgomery Circuit Court (“the trial court”) by submitting a letter indicating her wish to contest the denial of her application for unemployment-compensation benefits. The Department answered and denied that Smith was eligible for unemployment-compensation benefits.

On February 3, 2010, the Department moved for a summary judgment. In its summary-judgment motion, the Department argued that Smith had refused a reasonable job directive and that, therefore, under § 25-4-78(2), Ala.Code 1975, Smith was precluded from recovering unemployment-compensation benefits. Smith did not file a response to the summary-judgment motion.

The trial court conducted a hearing on the Department’s summary-judgment motion. Smith appeared pro se at that hearing. The Department and Smith each argued their positions. In addition, Smith made a number of factual representations to the trial court; however, Smith was not sworn in as a witness, and, therefore, she did not provide sworn testimony before the trial court.

On April 20, 2010, the trial court entered a judgment denying the Department’s motion for a summary judgment, finding in favor of Smith, and determining that Smith was entitled to unemployment-compensation benefits. The Department timely appealed.

A detailed recitation of the facts is not required to resolve this appeal. In support of its summary-judgment motion, the Department submitted to the trial court documentary evidence, an affidavit from Dunn, and the transcript of the hearing before the administrative hearing officer; that evidence constitutes the only admissible evidence presented in this matter. The Department’s evidence indicates that Dunn asked Smith and his other employees to sign confidentiality agreements and that Smith refused to do so. Smith had alleged in an unsigned letter to the Board that she had requested to be allowed to have an attorney review the confidentiality agreements. Dunn testified that he had told Smith she could have the agreements reviewed by an attorney but that she would have to sign them to continue her employment. According to Dunn, Smith “refused ... and walked out.” The evidence in the record indicates that Smith left Dunn’s office without explanation after she refused to sign the confidentiality agreements and that, before she left, she had been the only employee in the office that day. Dunn testified that Smith returned the next day with an “investigator” and requested a paycheck; Dunn stated that Smith and the investigator left his office premises only after Dunn telephoned 911 for emergency assistance.

As indicated earlier, Smith was not sworn in as a witness during the hearing on the Department’s motion for a summary judgment. Rather, during the summary-judgment hearing, Smith made factual representations to the trial court in which she stated that she had wanted to have an attorney review the confidentiality agreements and explained her reasoning for that request. During the summary-judgment hearing, Smith also alleged that she left the office after refusing to sign the confidentiality agreement and that she returned to the office the next day to obtain a paycheck.

In its judgment denying the Department’s summary-judgment motion and finding in favor of Smith, the trial court made factual determinations, including that a “fair interpretation of all of the evidence” indicated that Smith had “good cause for declining to remain at her job.” The trial court cited other factual findings in support of that determination.

Initially, we note that the denial of a summary-judgment motion is not appeal-able. See Parsons Steel, Inc. v. Beasley, 522 So.2d 253, 258 (Ala.1988) (“ ‘ “The order which denied summary judgment is interlocutory in nature, not made appeal-able by statute, and will, therefore, not support an appeal.” ’ ” (quoting Whitehead v. Baranco Color Labs, Inc., 353 So.2d 793, 794 (Ala.1977))). Therefore, we do not reach the Department’s argument that the trial court should have granted its summary-judgment motion. However, in this case, in denying the Department’s motion for a summary judgment, the trial court also entered a judgment on the merits in favor of Smith. We address the Department’s arguments to the extent they challenge the entry of the judgment on the merits.

The Department contends, among other things, that the trial court erred in reaching its judgment based on the arguments Smith presented at the hearing on its motion for a summary judgment. As the Department argued to the trial court, Smith did not respond to its summary-judgment motion. The trial court ruled that Smith’s “appearance [at the hearing on the summary-judgment motion] is a response,” and the hearing proceeded. Based on information received at that hearing, the trial court reached certain factual findings in its judgment. However, Rule 56(e), Ala. R. Civ. P., provides, in pertinent part:

“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against him.”

Our supreme court has stated that “bare argument ... does not satisfy the nonmov-ing party’s burden to offer facts to defeat the motion.” Hurst v. Alabama Power Co., 675 So.2d 397, 400 (Ala.1996). Thus, because Smith did not provide sworn testimony, her arguments at the summary-judgment hearing were not admissible evidence and constituted “mere allegations or denial[s]” of the Department’s allegations and evidence. See Rule 56(e), Ala. R. Civ. P. Further, a witness providing evidence must testify under oath. Rule 603, Ala. R. Evid. (“Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so.”). Smith was not under oath, and, therefore, she presented no admissible evidence on her own behalf.

The trial court made factual findings, including that Dunn had refused to allow Smith to have the confidentiality agreements reviewed by an attorney. That finding is not supported by the evidence in the record on appeal; that finding is derived from Smith’s unsworn allegations. The trial court also found that Smith did not leave her job voluntarily and that Dunn had requested that Smith leave the premises. The uncontroverted evidence presented by the Department indicates that Smith left her employment without notice on the day she was asked to sign the confidentiality agreement and that Dunn asked her to leave the office premises the next day, when Smith had returned with another person and Dunn telephoned 911 for emergency assistance after they refused to leave.

Given the foregoing, we conclude that the trial court erred in entering its judgment in favor of Smith because there was no admissible evidence to support that judgment. We remand the cause to the trial court to conduct an ore tenus hearing on the merits.

REVERSED AND REMANDED.

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

      . Section 25-4-95, Ala.Code 1975, specifies that "[t]rial in the circuit court shall be de novo.”

      . The record indicates that the confidentiality agreements required the employee to not divulge the names of Dunn’s patients, not contact those patients after the employee no longer worked for Dunn, and not discuss the confidential nature of the employee’s work for Dunn.

      . That letter, which was undated, constituted Smith’s appeal to the Board of the administrative hearing officer’s decision. The letter was received by the Board on June 2, 2009.

      . This court does not reach the Department’s contention that Smith refused a reasonable employment directive.