text:
    Robert R. BOWERS v. Brian Keith BELL, as personal representative of the estate of Keith Bell, deceased.
    2080942.
    Court of Civil Appeals of Alabama.
    July 23, 2010.
    Certiorari Denied Sept. 10, 2010 Alabama Supreme Court 1091471.

      Jack Floyd of Floyd Law Firm, LLC, Gadsden, for appellant.
    Thomas A. King, Gadsden, for appellee.
   On Application for Rehearing

BRYAN, Judge.

The opinion of February 5, 2010, is withdrawn, and the following is substituted therefor.

Robert R. Bowers, the defendant below, appeals from a judgment in favor of Keith Bell, the plaintiff below. We affirm.

On January 16, 2008, Bell sued Bowers, stating a claim of ejectment. As the factual basis of his claim, Bell alleged that he owned a parcel of land located on Tom Cat Road in Piedmont (“the land”); that Bowers, Bell’s first cousin, was in possession of the land; and that Bowers had refused to surrender possession of the land to Bell. As relief, Bell sought a judgment ejecting Bowers from the land.

Answering, Bowers denied the material allegations of Bell’s complaint and averred that he and Bell had entered into an oral contract, that the oral contract had vested him with an equitable interest in the land, and that he was entitled to possession of the land by virtue of that equitable interest. Specifically, he averred that Bell had orally agreed, to allow Bowers, to operate his junkyard and used-automobile-parts business on the land and to devise the land to Bowers at Bell’s death in exchange for Bowers’s agreeing to keep Bell’s automobiles running for the rest of Bell’s life and to bequeath Bowers’s business and equipment located on the land to Bell and certain other individuals specified by Bell if Bowers predeceased Bell. Bowers further averred that Bell had subsequently placed him in possession of the land, that Bowers had operated his business on the land, that Bell had executed a will devising the land to Bowers at Bell’s death, that Bowers had executed a will bequeathing his business and equipment to Bell and the other persons specified by Bell if Bowers predeceased' Bell, and that Bowers had kept Bell’s automobiles running from the date of the oral agreement until Bell stopped bringing his automobiles to Bowers for repair in 2006.

Thereafter, the trial court held a bench trial at which it received evidence ore ten-us. At trial, Bell asserted that he owned the land by virtue of his mother’s conveying it to him in a deed dated December 4", 1995, and that the Statute of Frauds barred Bowers from establishing that he owned an interest in the land by virtue of the oral contract. Bowers, on the other hand, asserted that the Statute of Frauds did not bar him from establishing that he owned an interest in the land by virtue of the oral contract because, he said, Bell had placed him in possession of the land and Bowers had performed his obligations under the oral contract by repairing Bell’s cars whenever they needed it from the date of the oral contract until Bell stopped bringing his cars to Bowers for repair in 2006.

Bell introduced into evidence a deed executed by his mother on December 4,1995, in which she had conveyed title to the land to Bell. Bell testified as follows. In approximately 1999, he and Bowers had entered into an oral contract in which Bell promised to allow Bowers to operate his junkyard and used-automobile-parts business* on the land without paying rent and to devise the land to Bowers at Bell’s death and Bowers had promised to keep Bell’s automobiles running for the rest of Bell’s life and to bequeath Bowers’s business and equipment to Bell and certain other individuals specified by Bell if Bowers predeceased Bell. Bowers later wrote two wills, one for Bell to sign and the other for Bowers to sign. The will that Bowers had prepared for Bell devised the land to Bowers while the will that Bowers had prepared for himself bequeathed his business and equipment to Bell and the other persons Bell had specified if Bowers predeceased Bell. Bell and Bowers signed the wills that Bowers had prepared, but they did not sign them in the presence of witnesses or a notary public. In 2006, Bowers sold some dirt he had taken from the land without Bell’s permission, and Bell sent Bowers two written notices to vacate the land; however, Bowers did not vacate the land. Bell then executed a new will devising the land to someone other than Bowers. Bell took his cars to Bowers when they needed repairs from the date Bell and Bowers entered into the oral contract until Bell learned in 2006 that Bowers had sold dirt he had taken from the land without Bell’s permission. Bowers repaired Bell’s automobiles when Bell brought them to him.

Bowers’s testimony coincided with Bell’s except that he testified that he and Bell had signed their wills in the presence of two witnesses who subscribed their names to the wills as witnesses and that he, Bell, and the witnesses had signed their names in the presence of a notary public who acknowledged their signatures. However, Bowers did not introduce executed wills into evidence. Instead, explaining that he could not find the executed wills or copies of the executed wills, he introduced unsigned copies of the wills.

In pertinent part, the unsigned copy of Bell’s will stated:

“I, KEITH WAYNE BELL, HEREBY GIVE, DEVISE AND BEQUEATH UNTO ROBERT ROMELL BOWERS ALL MY PROPERTIES, BOTH REAL, PERSONAL AND MIXED, TANGIBLE AND INTANGIBLE, OF WHATSOEVER NATURE AND WHERESOEVER SITUATED, TO BE MY PROPERTY, ABSOLUTELY AND UNCONDITIONALLY,
“a) PROPERTIES LOCATED [on] TOMCAT ROAD [in] PIEDMONT.... “b) PROPERTY CAN NOT BE SOLD NOR MORTGAGED NOR MONEY BORROWED FOR THREE (3) GENERATIONS, AT THIS TIME IT CAN ONLY BE SOLD TO HIS CHILDREN, THEIR CHILDREN OR THEIR CHILDREN.
“c) ONE LOT LOCATED ON GAN-NON ROAD [in] PIEDMONT, ALABAMA — OUTSIDE OF FENCE OF PROPERTY LOCATED [on] TOMCAT ROAD [in] PIEDMONT ... WILL GO TO MY SON BRAIN [sic] KEITH BELL. THIS PROERTY [sic] MUST NOT BE SOLD [to] ANYONE OTHER THAN THE SAID ROBERT ROMELL BOWERS OWNER OF PROPERTY LOCATED [on] TOMCAT ROAD [in] PIEDMONT....”

(Capitalization in original.)

In pertinent part, the unsigned copy of Bowers’s will stated:

“I, ROBERT ROMELL BOWERS, HEREBY GIVE, DEVISE AND BEQUEATH ALL MY PROPERTIES, BOTH REAL, PERSONAL AND MIXED, TANGIBLE AND INTANGIBLE, OF WHATSOEVER NATURE AND WHERESOEVER SITUATED, TO BE MY PROPERTIES, ABSOLUTELY AND UNCONDITIONALLY.
“a) ALL MY PROPERTIES LOCATED [on] TOMCAT ROAD [in] PIEDMONT ... TO BE DIVIDED EVENLY WITH BRAIN [sic] KEITH BELL, DANA BOWERS MOORE, CHARLES BOWERS, ROBERT E. BOWERS AND WILLIAM J. BOWERS.
“Q ALL OTHER MONIES ARE TO BE DIVIDED EQUALLY BETWEEN: “1) BRAIN [sic] KEITH BELL, DANA BOWERS MOORE, CHARLES BOWERS, ROBERT E. BOWERS AND WILLIAM J. BOWERS.
“d) NO LAND CAN BE SOLD BUT TO EACH BLOOD BROTHER OR SISTER FOR THREE (3) GENERATIONS. NO MONIES CAN BE BORROWED NOR CAN LAND BE PUT UP FOR BOND UNDER NO CIRCUMSTANCE.”

(Capitalization in original.)

Neither will referred to the existence of the oral contract obligating Bell and Bowers to make the wills or recited the terms of that oral contract.

Jean Eubanks, a friend of Bowers’s who performed some of his bookkeeping work, corroborated Bowers’s testimony that the parties had signed the wills in the presence of two witnesses who subscribed their names to the wills as witnesses and that the parties and the witnesses had signed their names in the presence of a notary public who acknowledged their signatures.

After the trial, the parties submitted briefs. Thereafter, the trial court entered a judgment in favor of Bell. In pertinent part, the judgment stated:

“1. The Court finds in favor of the Plaintiff, Keith Bell and against Defendant, Robert R. Bowers.
“2. Defendant, Robert R. Bowers failed to show ... to the Court that he is entitled to receive the property located [on] Tom Cat Road [in] Piedmont.... “3. Plaintiff, Keith Bell is hereby awarded his property located [on] Tom Cat Road [in] Piedmont....
“4. Defendant, Robert R. Bowers is to immediately vacate the premises without in any way damaging or destroying any buildings or other tangible or intangible objects located thereon belonging to the Plaintiff.”

Bowers subsequently filed a post-judgment motion, which the trial court denied. Bowers then timely appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Because the trial court received evidence ore tenus, our review is governed by the following principles:

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Wattman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

On appeal, Bowers reiterates the arguments he made in the trial court, i.e., that the oral contract vested in him an equitable interest in the land entitling him to possess it and that the Statute of Frauds did not bar him from establishing his equitable interest in the land by virtue of the oral contract because Bell had placed him in possession of the land and he had partially performed the oral contract by repairing Bell’s cars from the date of the oral contract until Bell stopped bringing his cars to Bowers for repair in 2006.

However, we do not reach those arguments because the trial court’s judgment is due to be affirmed on the ground that Bowers failed to satisfy the requirements of § 43-8-250, Ala.Code 1975. Section 43-8-250 provides:

“A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after January 1,1983, can be established only by:
“(1) Provisions of a will stating material provisions of the contract;
“(2) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or “(3) A writing signed by the decedent evidencing the contract.
“The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.”

(Emphasis added.)

In his testimony, Bell admitted that he had entered into an oral contract to devise the land to Bowers and he confirmed the terms of that contract. However, the plain language of § 43-8-250 states that a contract to make a will can only be established by proof satisfying subpara-graphs (1), (2), or (3) of that statute. When plain language is used in a statute, a court is bound to interpret that language to mean exactly what it says. See IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). Consequently, in the case now before us, although the factual existence of the oral contract obligating Bell to devise the land to Bowers was established by undisputed extrinsic evidence, the plain language of § 43-8-250 indicates that a court can give legal effect to that contract only if the proof of its existence satisfied subparagraphs (1), (2), or (3) of that statute.

Subparagraph (1) of § 43-8-250 requires that there be a will “stating material provisions of the contract.” In the case now before us, the material provisions of the oral contract entered into between the parties consist of the parties’ mutual promises. Bell promised to allow Bowers to operate his junkyard and used-automobile-parts business on the land without paying rent and to devise the land to Bowers at Bell’s death, and Bowers promised to keep Bell’s automobiles running for the rest of Bell’s life and to bequeath Bowers’s business and equipment to Bell’s son and certain other individuals specified by Bell. The will that Bowers prepared for Bell devised the land to Bowers, but it did not indicate that Bell had entered into a contract obligating him to make that devise or recite the mutual promises that had formed the contract. Likewise, the will Bowers prepared for himself bequeathed his business and equipment to the persons Bell had specified with the exception of Bell himself, but it did not indicate that Bowers had entered into a contract obligating him to make that bequest or recite the mutual promises that had formed the contract. Accordingly, we conclude that the proof of the oral contract obligating Bell to devise the land to Bowers did not satisfy subparagraph (1) of § 43-8-250.

Subparagraph (2) of § 43-8-250 requires that there be “[a]n express reference in a will to a contract and extrinsic evidence proving the terms of the contract.” In the case now before us, undisputed extrinsic evidence proved the factual existence of the contract and its terms, but neither the will Bowers prepared for Bell nor the will Bowers prepared for himself contained an express reference to their oral contract. Therefore, we conclude that the proof of the contract did not satisfy subparagraph (2) of § 43-8-250.

Subparagraph (3) of § 43-8-250 requires that there be “[a] writing signed by the decedent evidencing the contract.” In the case now before us, the only writing signed by Bell was the will prepared for him by Bowers. That will does not evidence the contract because it neither indicated that Bell had entered into a contract obligating him to devise the land to Bowers nor recites the mutual promises that formed the contract. Consequently, we conclude that the proof of the contract did not satisfy § 43-8-250(3).

Neither party raised the issue whether the proof of the oral contract obligating Bell to devise the land to Bowers satisfied § 43-8-250 in the trial court, and neither party has raised that issue on appeal. Nonetheless, this court

“can affirm a judgment on a basis not asserted in the trial court. Cain v. Howorth, 877 So.2d 566, 584 (Ala.2003); Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988). This Court cannot avoid its obligation to affirm the trial court’s judgment if that court has reached the correct result, because a litigant has miscalculated the applicability of the appropriate rule of law. See Williams-Guice v. Board of Educ. of Chicago, 45 F.3d 161, 164 (7th Cir.1995) (‘Still, litigants’ failure to address the legal question from the right perspective does not render us powerless to work the problem out properly. A court of appeals may and often should do so unbidden rather than apply an incorrect rule of law to the parties’ circumstances.’) (citing United States Nat’l Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993); Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991)). See also Forshey v. Principi, 284 F.3d 1335, 1357 n. 20 (Fed.Cir.), cert. denied, 537 U.S. 823, 123 S.Ct. 110, 154 L.Ed.2d 33 (2002), superseded by statute on other grounds as stated in Morgan v. Principi, 327 F.3d 1357, 1358-59 (Fed.Cir.2003) (‘ “Appellate review does not consist of supine submission to erroneous legal concepts even though none of the parties declaimed the applicable law below. Our duty is to enunciate the law on the record facts. Neither the parties nor the trial judge, by agreement or passivity, can force us to abdicate our appellate responsibility.” ’) (quoting Empire Life Ins. Co. of America v. Valdak Corp., 468 F.2d 330, 334 (5th Cir.1972)). The Supreme Court of Wisconsin stated the principle quite succinctly in Laffey v. City of Milwaukee, 4 Wis.2d 111, 115, 89 N.W.2d 801, 803 (1958), when it held, ‘Where we find an order to be correct, we may affirm it notwithstanding that counsel supported it on an erroneous theory, or even disclaimed the view of the law which we hold to be right.’ ”

Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 960 (Ala.2004). Moreover, although the judgment of the trial court does not indicate whether the trial court considered the issue whether the proof of the oral contract obligating Bell to devise the land to Bowers satisfied § 43-8-250, we can affirm a judgment of the trial court on any valid legal ground regardless of whether it was considered by the trial court. Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000). Indeed, we can even affirm a judgment of the trial court on a valid legal ground that was rejected by the trial court. Id. Accordingly, we affirm the judgment of the trial court because the proof of the oral contract obligating Bell to devise the land to Bowers failed to satisfy the requirements of § 43-8-250, and, therefore, Bowers failed to establish that he was vested with an equitable interest in the land that entitled him to possession of the land.

APPLICATION OVERRULED; OPINION OF FEBRUARY 5, 2010, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

      . Following the entry of the judgment in favor of Keith Bell, he died and the personal representative of his estate, Brian Keith Bell, was substituted as the plaintiff/appellee in this action.

      . We note that, although the unsigned copy of the will Bowers prepared for himself names Bell’s son, Brian Keith Bell, as a legatee, it does not name Bell as a legatee.

      . See supra note 2.

      . We note that Bell testified that the wills prepared by Bowers were not signed in the presence of two witnesses, which raises the issue whether the wills were validly executed pursuant to § 43-8-131, Ala.Code 1975, which provides that, "[ejxcept as provided within Section 43-8-135, every will shall be in writing signed by the testator or in the testator’s name by some other person in the testator’s presence and by his direction, and shall he signed by at least two persons each of whom witnessed either the signing or the testator's acknowledgment of the signature of the will." (Emphasis added.) Although Bowers and Jean Eubanks testified that the wills prepared by Bowers were signed in the presence of two witnesses, the trial court, as the sole judge of the credibility of the witnesses, see Woods v. Woods, 653 So.2d 312, 314 (Ala.Civ.App.1994) ("In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of witnesses, and the trial court should accept only that testimony it considers to be worthy of belief.”), could have accepted Bell’s testimony that the wills prepared by Bowers were not signed in the presence of two witnesses and rejected the conflicting testimony of Bowers and Eubanks. However, because the trial court did not make any express findings of fact with regard to that issue, we have, for purposes of this opinion, assumed without deciding that the wills prepared by Bowers were validly executed.

      . See supra note 3.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    B.R.G. v. G.L.M., A.L.M., and J.M.
    2090448.
    Court of Civil Appeals of Alabama.
    Aug. 27, 2010.

      Terinna S. Moon and Rondi A. Mosteller of Tina S. Moon, LLC, Prattville, for appellant.
    N. Tracy Nickson, Montgomery, for ap-pellee G.L.M.
    Jennifer M. Holton, Montgomery, for appellees A.L.M. and J.M.
   THOMAS, Judge.

B.R.G. (“the father”) appeals from a judgment of the Elmore Juvenile Court finding A.E.G. (“the child”) dependent and awarding custody of the child to A.L.M. (“the maternal grandmother”) and J.M. (“the maternal grandfather”) (collectively hereinafter sometimes referred to as “the maternal grandparents”). We affirm.

On January 29, 2009, G.L.M. (“the mother”) petitioned the juvenile court for an ex parte custody award and a temporary restraining order, claiming that the father had removed the child, who was then two years old, from the parties’ residence, that the location of the child was unknown to the mother, that the father was abusive and was, therefore, unfit to care for the child, and that the mother feared for the safety of the child. On the same day, the mother also filed a “petition for custody and child support,” in which the mother requested that the juvenile court award the mother “sole, physical care, custody and control” of the child, child .support, and an attorney fee, and order the father to have no contact with the mother or the child. The juvenile court granted the mother’s ex parte petition on the same day it was filed, awarding the mother temporary custody of the child and restraining the father from any contact with the mother or the child.

In response to the mother’s petitions, the father, acting pro se, filed a petition in the juvenile court alleging that the child was dependent. The father filed his complaint using a standard form provided by the juvenile court. As bases for dependency, the father checked the lines on the form alleging that the child was “without a parent or guardian able to provide for the child’s support, training or education,” that the child’s “custody is the subject of controversy,” that the child was “physically, mentally, or emotionally abused by the child’s parents ... or [that the child was] without proper parental care and control necessary for the child’s well being because of the faults or habits of the child’s parents ... or their neglect or refusal, when able to do so, to provide [for] them,” and that the child was “in immediate or threatened danger of physical and/or emotional harm.” In his petition, the father alleged that the mother was abusing prescription drugs, was experiencing hallucinations, and was suicidal.

On February 3, 2009, acting through counsel, the father moved the juvenile court to order the mother to submit to a hair-follicle drug screen. The juvenile court granted the father’s motion, ordering the mother to submit to a drug screen. The mother’s drug screen returned a positive result for methamphetamine. The father also submitted to a drug screen; the father tested negative for all screened drugs.

On February 3, 2009, the juvenile court held a hearing, and, on February 5, 2009, it entered an order setting aside its ex parte order'that had awarded custody of the child to the mother. In its order, the juvenile court awarded the father custody of the child, subject to supervision by the paternal grandmother, pending the final hearing. The juvenile court awarded the mother visitation supervised by the maternal grandmother. The juvenile court also restrained the mother and the father from communicating with each other.

On February 5, 2009, the mother moved the trial court to continue the case, alleging that she had been committed to a mental-health institution by an order of the Elmore County Probate Court. On February 16, 2009, the maternal grandparents filed a motion to intervene in the case and a petition for temporary custody of the child. In their petition, the maternal grandparents alleged that the child was dependent. In support of their allegation of dependency, the maternal grandparents alleged that the mother had been involuntarily committed to a mental-health institution by the probate court and that the father was currently out on bond for a pending domestic-violence charge that had been brought by the mother. The maternal grandparents requested that the juvenile court award the maternal grandparents temporary custody of the child pending the outcome of the case. The father responded to the maternal grandparents’ motion to intervene and petition for temporary custody, denying that the child was dependent. In his response, the father admitted that he had a pending domestic-violence charge; however, he stated that the charge was from an incident that had occurred in 2004 and that the father had not been convicted. The father also denied that the maternal grandparents were the fit and proper persons to have custody of the child. The juvenile court subsequently entered an order granting the mother’s motion to continue, granting the maternal grandparents’ motion to intervene, and denying the maternal grandparents’ petition for temporary custody.

In August 2009, the father filed an “amended petition for custody,” asserting that he was the fit and proper person to have custody of the child and that the mother was employed and was capable of paying child support. In his amended petition, the father requested that the juvenile court award him custody of the child and order the mother to pay child support. The mother responded to the father’s amended petition, alleging that the father had committed acts of domestic violence against her and that the child had received injuries while in the temporary care of the father. The mother also alleged that she was the fit and proper person to have custody of the child and requested that the juvenile court award her' custody of the child. The maternal grandparents also answered the father’s amended petition for custody, requesting that the juvenile court award them custody of the child, award the mother visitation, and award the father supervised visitation. The mother and the maternal grandparents jointly filed a motion to have the father held in contempt, alleging that the father had failed to follow the juvenile court’s orders by refusing to allow the mother and the maternal grandparents to exercise their visitation with the child.

On September 28, 2009, P.G. (“the paternal grandmother”) filed a petition seeking to intervene in the ease and alleging that the child was dependent. The paternal grandmother alleged that she was “in fear of [the child’s] safety and well-being” and requested that the juvenile court award joint legal custody to the paternal grandmother and the father and primary physical custody to the paternal grandmother. At the final hearing, the juvenile court granted the paternal grandmother’s motion to intervene.

Following a hearing, the juvenile court entered a judgment finding the child dependent. With respect to the father, the juvenile court based its determination of dependency on the allegation of domestic violence. In its judgment, the juvenile court awarded the maternal grandparents custody of the child, awarded the mother visitation, and awarded the father supervised visitation. The judgment provided that the father would have standard visitation when the child turned five years old. The juvenile court’s judgment did not address the issues of child support or the father’s alleged contempt.

The father subsequently filed a motion requesting that the juvenile court reconsider its judgment, a motion to stay execution of the judgment pending the resolution of the postjudgment motion, and a motion requesting that the juvenile court address the outstanding issues of contempt and child support. On October 27, 2009, the juvenile court entered an order denying the father’s postjudgment motion and motion to stay, denying the contempt motion that had been jointly filed by the mother and the maternal grandparents, and referring the issue of child support to the juvenile-court referee. On January 11, 2010, the juvenile court entered an order requiring the mother and the father to pay child support to the maternal grandparents. The father subsequently appealed to this court.

The father first argues that the juvenile court lacked subject-matter jurisdiction over the case. The mother initiated the instant case by filing a petition for an ex parte custody order, alleging that the child was in danger of harm while in the custody and control of the father. Section 12-15-138, Ala.Code 1975, provides that

“[t]he juvenile court, at any time after a dependency petition has been filed, or on an emergency basis, may enter an order of protection or restraint to protect the health or safety of a child subject to the proceeding.”

(Emphasis added.)

Thus, the mother’s petition for an emergency ex parte order, in which she alleged that the child was in danger of immediate harm, properly invoked the emergency jurisdiction of the juvenile court under § 12-15-138.

Thereafter, the father filed a dependency petition alleging, among other things, that the mother had abused the child and that the child was without proper parental care and control — allegations that, if proven, could support a finding of dependency. See § 12-15-101(8), Ala. Code 1975. Section 12-15-114(a), Ala. Code 1975, provides, in pertinent part, that “[a] juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged to have committed a delinquent act, to be dependent, or to be in need of supervision.” Thus, the allegations in the father’s petition were sufficient to invoke the dependency jurisdiction of the juvenile court. Although the father later amended his petition to assert only claims for custody and child support, the maternal grandparents filed a motion to intervene and a petition alleging that the child was dependent before the father’s amendment of his petition. Thus, the juvenile court still had jurisdiction over the father’s original dependency petition at the time the maternal grandparents intervened. Because the juvenile court had subject-matter jurisdiction over the case at the time it granted the maternal grandparents’ motion to intervene and because their petition clearly alleged that the child was dependent, the maternal grandparents’ petition properly invoked the juvenile court’s dependency jurisdiction over the case. See § 12-15-114(a) (“A juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged ... to be dependent .... ”); § 12-15-102(8), Ala.Code 1975 (defining a dependent child). The father’s later amendment of his petition, removing his allegations of dependency and, instead, asserting only claims for custody and child support did not act to terminate the juvenile court’s subject-matter jurisdiction over the case because the juvenile court had before it at that time the maternal grandparents’ petition alleging dependency.

The father next argues that the juvenile court’s determination that the child was dependent was not supported by clear and convincing evidence.,

“ ‘A finding of dependency must be supported by clear and convincing evidence. § 12-15—65(f)[, Ala.Code 1975] [now 12-15-311(a), Ala.Code 1975]; M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala.Civ.App.1999). However, matters of dependency are within the sound discretion of the trial court, and a trial court’s ruling on a dependency action in which evidence is presented ore tenus will not be reversed absent a showing that the ruling was plainly and palpably wrong. R.G. v. Calhoun County Dep’t of Human Res., 716 So.2d 219 (Ala.Civ.App.1998); G.C. v. G.D., 712 So.2d 1091 (Ala.Civ.App.1997); and J.M. v. State Dep’t of Human Res., 686 So.2d 1253 (Ala.Civ.App.1996).’ ”

L.A.C. v. T.S.C., 8 So.3d 322, 326-27 (Ala.Civ.App.2008) (quoting J.S.M. v. P.J., 902 So.2d 89, 95 (Ala.Civ.App.2004)).

The mother testified that the father'had physically and verbally abused her multiple times during the parties’ relationship. The mother entered into evidence photographs that showed bruises and marks that the mother alleged were the result of an incident during which, according to the mother, the father shoved a stuffed animal down the mother’s throat and choked her. According to the mother,, the father had also once placed a pillow over her face, preventing her from breathing, while-she was holding the child. The maternal grandmother also testified that the father had verbally and physically abused the mother. The father disputed the mother’s testimony, denying that he had ever abused the mother. A.S., the father’s ex-wife with whom he shares a child, and C.H., A.S.’s mother, both testified that the father has never shown any violent tendencies and that he provides good care for A.S. and the father’s child when he has visitation. The father also presented the testimony of Martha Ellis, a licensed professional counselor. Ellis testified that she had held six sessions with the father to evaluate anger-management strategies. According to Ellis, the father did not exhibit any behavior or tendencies that would indicate that the father was a violent person.

The maternal grandmother testified that the child had returned from visitation with the father with multiple bruises, which the maternal grandmother attributed to a lack of supervision while the child was at the home of the paternal grandmother. The father explained that the child twice injured herself during his visitation periods — once when the child tripped and hit her head on the corner of a bed and once when a can of food fell off a shelf and onto her toe — and that both injuries were accidental.

The evidence pertaining to the issues whether the father had abused the mother or whether he had provided inadequate supervision over the child was disputed.

“ ‘ “Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court..."' Ex parte Roberts, 796 So.2d 349, 351 (Ala.2001) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996)). ‘When the evidence in a case is in conflict, the trier of fact has to resolve the conflicts in the testimony, and it is not within the province of the appellate court to reweigh the testimony and substitute its own judgment for that of the trier of fact.’ Delbridge v. Civil Serv. Bd. of Tuscaloosa, 481 So.2d 911, 913 (Ala.Civ.App.1985). ‘[A]n appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow.’ Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003) (citations omitted).”

Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004). In this case, the trial court had evidence before it that, if believed, would support a determination that the child was dependent. Because this court is prohibited from reweighing the evidence on appeal or determining the credibility of witnesses, we cannot conclude that the juvenile court erred when it determined that the child was dependent; therefore, the juvenile court’s judgment is due to be affirmed.

AFFIRMED.

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

      . The maternal grandparents twice initiated proceedings in the probate court, seeking to have the mother committed to a mental-health institution. The first petition, initiated on January 28, 2009, was denied by the probate court. The second petition, filed on February 9, 2009, was granted, resulting in an order committing the mother to Greil Memorial Psychiatric Hospital for a minimum of 150 days.

      . After tire juvenile court entered its October 27, 2009, order, the father appealed to this court. We dismissed the father’s appeal, concluding that it had been taken from a non-final judgment.

      . Section 12-15-114(a) further states that ’’[a] dependency action shall not include a custody dispute between parents.” However, both the father's and the maternal grandparents’ petitions clearly state allegations of dependency. Therefore, this case is not a pure custody dispute between parents. Instead it squarely presents the juvenile court with the question whether the child is dependent.

      . The mother has not appealed from the juvenile court’s judgment finding the child dependent; therefore, the issue whether the child would be dependent in the mother's care is not at issue on appeal, and we need only address the father's argument that the child is not dependent because, he says, he is a fit and capable parent.

      . The father argues that the juvenile court determined that the child was dependent based on a "mere allegation” of domestic violence. Although, the juvenile court did state in its judgment that the father was unfit to have custody of the child because of "the alleged domestic violence,” it is clear from reading the entire judgment that the juvenile court found that the evidence was sufficient to support the conclusion that the father had been the perpetrator of domestic violence.

        . The father's final argument is based on an assumption that the child was not dependent. Because we hold that the juvenile court did not err in finding the child dependent, we need not address the father's argument concerning the application of Ex parte Terry, 494 So.2d 628 (Ala.1986), to the facts of this case.


author: BRYAN, Judge. PITTMAN, Judge,

text:
    Stephanie BERRY and Eva Berry v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee for Long Beach Mortgage Loan Trust 2003-1.
    2080840.
    Court of Civil Appeals of Alabama.
    Aug. 27, 2010.

      Kenneth James Lay, Legal Services Alabama, Inc., Birmingham, for appellants.
    Gregory M. Deitsch, R. Ryan Daugherty, and Meaghan E. Ryan of Sirote & Permutt, P.C., Birmingham, for appellee.
   On Application for Rehearing

BRYAN, Judge.

The opinion of May 14, 2010, is withdrawn, and the following is substituted therefor.

Stephanie Berry and Eva Berry appeal from a summary judgment in favor of Deutsche Bank National Trust Company, as trustee for Long Beach Mortgage Loan Trust 2003-1 (“Deutsche Bank”), in Deutsche Bank’s ejectment action against them. We reverse and remand.

On October 15, 2002, Stephanie borrowed $48,450 from Long Beach Mortgage Company (“Long Beach”) and executed a variable-rate promissory note (“the note”) in which she promised to repay the loan with interest. Contemporaneously, Stephanie and her grandmother, Eva, executed (1) a mortgage (“the mortgage”) in favor of Long Beach on a parcel of real property they owned in Birmingham (“the property”) and (2) an instrument titled “Fixed/Adjustable Rate Rider” (“the rate rider”).

On July 24, 2008, Deutsche Bank sued Stephanie and Eva, stating a claim of ejectment. As the factual basis of its claim, Deutsche Bank alleged that it had foreclosed the mortgage on June 19, 2008, that it had purchased the property at the foreclosure sale, that it had served Stephanie and Eva with a written demand for possession of the property, and that Stephanie and Eva had not vacated the property. As relief, Deutsche Bank sought possession of the property and damages for Stephanie and Eva’s failure to vacate the property. In addition, Deutsche Bank sought a determination that Stephanie and Eva had forfeited them right to redeem the property by failing to vacate the property within 10 days after receiving Deutsche Bank’s written demand for possession.

Answering, Stephanie and Eva denied the allegations of the complaint and asserted, as an affirmative defense, that Deutsche Bank was not entitled to prevail on its ejectment claim because, Stephanie and Eva said, it did not own title to the property because, Stephanie and Eva said, the foreclosure of the mortgage upon which Deutsche Bank based its claim of title was invalid.

On September 29, 2008, Deutsche Bank moved the trial court for a summary judgment on the ground that it was entitled to possession of the property by virtue of its foreclosing the mortgage. In support of its motion, Deutsche Bank submitted, among other things, authenticated copies of the foreclosure deed conveying title to the property to Deutsche Bank and a June 25, 2008, letter addressed to Stephanie and Eva demanding possession of the property. Deutsche Bank also submitted evidence establishing that Stephanie and Eva had not vacated the property.

Stephanie and Eva moved the trial court to grant them time to conduct discovery before responding to the summary-judgment motion, and the trial court did so. On December 3, 2008, Deutsche Bank filed additional evidence in support of its summary-judgment motion. That evidence included authenticated copies of the note; the mortgage; the rate rider; and letters giving Stephanie and Eva notice of default, notice of their right to cure the default within 30 days, notice of acceleration of the sums due under the mortgage, and notice of the foreclosure sale.

On December 17, 2008, Stephanie and Eva filed a response to Deutsche Bank’s summary-judgment motion. In their response, Stephanie and Eva asserted, among other things, that Deutsche Bank was not entitled to a summary judgment because, they said, the foreclosure upon which Deutsche Bank based its ejectment claim was invalid because, they said, Deutsche Bank had breached the fiduciary duty it owed Stephanie and Eva by purchasing the property at the foreclosure sale for $33,915 when the market value of the property was $84,800 according to the Jefferson County tax assessor. In support of this argument, Stephanie and Eva submitted an affidavit made by Eva in which she attested that the Jefferson County tax assessor had determined that the market value of the property in 2008 was $84,800. On January 9, 2009, Deutsche Bank moved the trial court to “to strike any testimony in [Stephanie and Eva’s] affidavits testifying to the value of the property” on the ground that Stephanie and Eva had “failed to submit any admissible evidence relevant to the value of the property at the time of the foreclosure sale.” Also on January 9, 2009, Stephanie and Eva filed an unauthenticated copy of the 2008 tax notice on the property prepared by the Jefferson County tax collector (“the 2008 tax notice”), which listed the market value of the property as $84,800, and an unauthenticated copy of a document purporting to be an estimate of the value of property prepared by Zillow.com, which estimated the market value of the property to be $86,500. Deutsche Bank did not move to strike the unauthenticated copy of the 2008 tax notice or the unauthenticated copy of the Zillow.com estimate.

On March 6, 2009, the trial court entered a judgment in favor of Deutsche Bank. The judgment stated:

“Pending is a Motion for Summary Judgment filed by the plaintiff Deutsche Bank National Trust Company, in an ejectment action on property ... where defendants Stephanie Denise Berry and Eva Mae Berry currently reside. [Deutsche Bank] filed in support of its motion the following evidence: an affidavit of Marianne Petrocelli (manager for Nationwide REO Brokers, Inc., an agent for Washington Mutual Banks, as servicing agent for Owner of Record, Deutsche Bank National Trust Company); the foreclosure deed of said property; and a letter to all occupants of the property demanding possession. In opposing [Deutsche Bank’s] motion, [Stephanie and Eva] contend that because of wrongful foreclosure proceedings, [Deutsche Bank] is without legal title to the property and [Deutsche Bank’s] motion is thus due to be denied.
“A prima facie showing in an ejectment action requires the plaintiff to provide substantial evidence that it has legal title to the property when the complaint was filed and a right to immediate possession. Muller v. Seeds, 919 So.2d 1174, 1177 (Ala.2005). [Deutsche Bank] has provided the Court with prima facie evidence by filing a true and correct copy of the foreclosure deed and a demand for possession letter. The burden therefore shifts to [Stephanie and Eva] to produce substantial evidence that there was a wrongful foreclosure and consequently that [Deutsche Bank] should be es-topped from contending [that it has] good title to the property.
“[Stephanie and Eva] offer a number of arguments that the foreclosure proceedings were wrongful. Finding most of the arguments meritless, the Court addresses in detail only [their] contention that the foreclosure sale was improper because [Deutsche Bank] breached its duty of good faith and fairness to the mortgagor by selling the property to itself for a price ‘well below the market value.’ [Stephanie and Eva’s] brief at page 6. [Stephanie and Eva] cite the general rule in Mt. Carmel Estates v. Regions Bank, 853 So.2d 160 (Ala.2002) that ‘where the price realized at the [foreclosure] sale is so inadequate as to shock the conscience, it may itself raise a presumption of fraud, trickery, unfairness, or culpable mismanagement, and therefore be sufficient ground for setting the foreclosure sale aside.’ Id. In other words, [Stephanie and Eva] claim that the purchase price paid by the bank of $83,915.00 at the foreclosure sale was so inadequate as to ‘shock the conscience’ and is therefore grounds for setting aside the foreclosure sale and deed.
“In support of this argument, [Stephanie and Eva] provided the Court with a copy of their 2008 Jefferson County Tax Notice, wherein the market value of the property at issue was stated to be $84,800.00. [Stephanie and Eva] also filed what appears to 'be an online appraisal of $86,500.00 from Zillow.com, which presumably bases its assessment on comparable sales of similar properties in the surrounding area. If the Court were to assume, arguendo, that the tax notice market value and Zil-low.com appraisal are accurate, then the foreclosure sale yielded less than 40% of the market value. Moreover, the bid price created a 30% deficiency of $13,599.00 on the debt secured by the property.
“A review of case law suggests that the Court can compare the purchase price at the foreclosure sale to the ‘fair market value’ in order to determine if the price was inadequate. There is no doubt that the above-mentioned numbers could ‘shock the conscience.’ The Court, however, must consider whether the suggested market value of the property put forth by [Stephanie and Eva] authoritatively proves the ‘fair market value’ of the property at the time of the foreclosure sale. The Court concludes that such evidence is insufficient. First, evidence was not provided by [Stephanie and Eva] explaining or verifying the method used by the tax assessor’s office or Zillow.com to determine the suggested values. Does it include factors such as the size of the home or the number of rooms, or is it based exclusively on sales of properties immediately surrounding the property at issue?
“But even more troubling is the lack of information regarding the condition of the property at the time of the sale. [Stephanie and Eva] failed to provide the Court with either pictures or an affidavit of the condition of the property at that time. What if it was in a state of disrepair? [Stephanie and Eva] could not then reasonably contend that its fair market value would be the same as if it were in top condition.
“There are many factors that the Court must consider when determining a property’s fair market value. In doing so, the Court must require more evidence than a copy of the Jefferson County Tax Assessor’s market value or an online appraisal from Zillow.com. It is for this reason that [Stephanie and Eva] have failed to provide substantial evidence that, the purchase price by [Deutsche] Bank ‘shocks the conscience.’
“The Court therefore finds that there is no genuine issue of material fact and the plaintiff Deutsche Bank National Trust Company is entitled to a judgment as a matter of law. The following is hereby ORDERED:
“JUDGMENT is hereby entered in favor of [Deutsche Bank] and against [Stephanie and Eva]. [Deutsche Bank] is entitled to possession of the property sued for in the complaint....
“A Writ of Possession may be issued to the Sheriff of Jefferson County, Alabama, for the execution of such writ.
“Because of the failure to deliver possession after having been given 10 days written notice by [Deutsche Bank], [Stephanie and Eva] have forfeited their right to redemption.”

Stephanie and Eva timely filed a post-judgment motion. On April 30, 2009, the trial court entered an order partially granting Stephanie and Eva’s post-judgment motion. In pertinent part, that order stated:

“Motion to Vacate or Modify by [Stephanie and Eva] is hereby GRANTED IN PART.
“The Final Order of March 6, 2009, is amended so as to further provide that, based on the undisputed fact that [Deutsche Bank] bought the property for an amount well below [Stephanie and Eva’s] indebtedness, [Deutsche Bank] is estopped and enjoined from hereafter seeking to recover any deficiency against either [Stephanie or Eva].
“As so amended, the Final Order stands.... ”

Upon the motion of Stephanie and Eva, the trial court stayed execution on its judgment pending resolution of an appeal. Stephanie and Eva then timely appealed to this court.

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

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

Stephanie and Eva first argue that the trial court erred in entering a summary judgment in favor of Deutsche Bank because, they say, the foreclosure sale was invalid because, they say, Deutsche Bank breached the duty of fairness it owed Stephanie and Eva by selling the property to itself for $33,915 when the market value of the property was $84,800 according to the 2008 tax notice.

In Hawkins v. LaSalle Bank, N.A., 24 So.3d 1143, 1151 (Ala.Civ.App.2009), this court held that, when a plaintiff in an ejectment action claims title to the property by virtue of its having purchased the property at a foreclosure sale, the existence of a genuine issue of material fact regarding the validity of the foreclosure sale will preclude the entry of a summary judgment in favor of the plaintiff. Stephanie and Eva argue that they established the existence of a genuine issue of material fact .regarding the validity of the foreclosure sale on which Deutsche Bank bases its claim to title because, they say, they showed that the price realized at the foreclosure sale, i.e., $33,915 was so low in relation to the market value of the property as to shock the conscience. “ ‘ “The general rule is that, ‘where the price realized at the [foreclosure] sale is so inadequate as to shock the conscience, it may itself raise a presumption of fraud, trickery, unfairness, or culpable mismanagement, and therefore be sufficient ground for setting the sale aside.’ ” ’ ” Mt. Carmel Estates, Inc. v. Regions Bank, 853 So.2d 160, 168 (Ala.2002) (quoting Breen v. Baldwin County Fed. Sav. Bank, 567 So.2d 1329, 1333 (Ala.1990) quoting in turn Hayden v. Smith, 216 Ala. 428, 430-31, 113 So. 293, 295 (1927)).

Stephanie and Eva argue that their submitting the 2008 tax notice established the existence of a genuine issue of material fact with respect to the validity of the foreclosure sale because, they say, it indicates that the market value of the property was $84,800 when Deutsche Bank sold the property to itself for $33,915 at the foreclosure sale and, therefore, that the price realized at the foreclosure sale was so low in relation to the market value of the property as to shock the conscience. “ ‘[Generally the tax assessing authority’s evaluation is not relevant when offered to prove market value. The rationale underlying this general exclusionary rule is that “it is notorious that properties are not assessed at anything like true value or market value.” ’ ” Presley v. B.I.C. Constr., Inc., [Ms. 2080286, Sept. 4, 2009] — So.3d -, - (Ala.Civ.App.2009) (quoting 2 Charles W. Gamble, McElroy’s Alabama Evidence § 267.04 (5th ed.1996)). Moreover, Stephanie and Eva did not authenticate the 2008 tax notice as required by Rule 56(e), Ala. R. Civ. P. See Berry Mountain Mining Co. v. American Res. Ins. Co., 541 So.2d 4, 4-5 (Ala.1989). However, Deutsche Bank did not move the trial court to strike the 2008 tax notice.

“It is an established principle of appellate procedure in this State that the trial court can consider otherwise inadmissible evidence submitted in support of, or in opposition to, a motion for a summary judgment if the party against whom the evidence is offered does not object to the evidence by moving to strike it. Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308 (Ala.2001); and Ex parte Diversey Corp., 742 So.2d 1250 (Ala.1999). The only exception to that rule recognized by this Court is that inadmissible evidence cannot be considered if to consider it would cause a ‘gross miscarriage of justice.’ Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d at 313-14; and Ex parte Diversey Corp., 742 So.2d at 1253-54.”

Kelly v. Panther Creek Plantation, LLC, 934 So.2d 1049, 1053 (Ala.2006).

In the case now before us, the trial court considered the 2008 tax notice, and we do not perceive that the trial court’s consideration of the 2008 tax notice constituted a gross miscarriage of justice. See Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 314 (Ala.2001). In Ex parte Elba General Hospital & Nursing Home, Inc., the supreme court reviewed a decision of this court reversing a summary judgment on the ground that the trial court’s consideration of a defective affidavit that the nonmovant had not moved to strike constituted a miscarriage of justice. Reversing this court’s decision, the supreme court stated:

“This Court has not found any reported decision, other than the decision now before us on certiorari review, in which an appellate court has reversed a trial court’s summary judgment because the appellate court found that the trial court’s considering an unobjected-to defective affidavit constituted a ‘gross miscarriage of justice.’ Professor Wright supports his statement of the exception to the rule with citations to cases in which courts note the existence of the exception but decline to apply it. After reviewing the relevant caselaw and considering it in light of the facts of this case, this Court is not convinced that Alabama should be the first state whose courts accepted the proposition that using a defective affidavit in support of a motion for summary judgment caused a gross miscarriage of justice.”

828 So.2d at 314. Therefore, we conclude that Deutsche Bank waived the inadmissibility of the 2008 tax notice by failing to move to strike it. See Kelly v. Panther Creek Plantation, LLC, and Ex parte Elba Gen. Hosp. & Nursing Home, Inc.

Although the trial court considered the 2008 tax notice, it concluded that it did not constitute substantial evidence indicating that the market value of the property was $84,800 because Stephanie and Eva did not submit evidence indicating the method the tax assessor used in determining that the market value of the property was $84,800 and did not introduce evidence indicating the condition of the property when it was sold at the foreclosure sale. Lack of proof indicating that the tax assessor used an appropriate method for determining that the market value of the property was $84,800 and lack of evidence indicating that the property was in the same condition when it was sold as when the tax assessor determined that its market value was $84,800 would constitute grounds for objecting to the admissibility of the 2008 tax notice, see Presley v. B.I.C. Constr., Inc., supra, but Deutsche Bank waived those objections by failing to move to strike the 2008 tax notice. See Kelly v. Panther Creek Plantation, LLC, and Ex parte Elba Gen. Hosp. & Nursing Home, Inc.

“ ‘[Substantial evidence .is evidence of such weight' and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Dow v. Alabama Democratic Party, 897 So.2d at 1039 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). We conclude that fair-minded persons in the exercise of impartial judgment could reasonably infer from the 2008 tax notice that the market value of the property was $84,800 when Deutsche Bank sold the property to itself for $33,915 at the foreclosure sale. Accordingly, we conclude that the 2008 tax notice constituted substantial evidence establishing that fact for purposes of Deutsche Bank’s summary-judgment motion. If satisfactorily proven at trial, that fact would justify a determination that the foreclosure sale was invalid on the ground that the price realized at the foreclosure sale was so low in relation to the market value of the property as to shock the conscience, which would constitute an affirmative defense to Deutsche Bank’s ejectment claim. See Patterson v. Liberty Nat’l Life Ins. Co., 903 So.2d 769, 779 (Ala.2004) (“This Court has defined an affirmative defense as a defense that raises a new matter and that would be a defense even if the relevant allegations in the plaintiffs complaint were true. Bechtel v. Crown Cent. Petroleum Corp., 451 So.2d 793, 795 (Ala.1984).”); and Hawkins v. LaSalle Bank, 24 So.3d at 1151. In Hawkins u LaSalle Bank, we stated that satisfactory proof at trial of facts establishing that a foreclosure sale and the resulting foreclosure deed were invalid would deprive an ejectment-action plaintiff who based his or her claim to legal title to the property on the foreclosure deed from having the necessary standing to prosecute the ejectment action. 24 So.3d at 1151. We should have stated that such proof would constitute an affirmative defense to such a plaintiffs claim rather than stating that it would deprive the ejectmenDaction plaintiff of standing, because such a plaintiff has standing to maintain the ejectment action by virtue of being named as the grantee in the foreclosure deed. See Muller v. Seeds, 919 So.2d 1174, 1177 (Ala.2005) (recognizing that an ejectment-action plaintiff who bases his or her claim to legal title to the property on a foreclosure deed establishes a prima facie case of ejectment by introducing the mortgage, the foreclosure deed naming the plaintiff as the grantee, a written demand for possession, and evidence establishing that the defendant failed to surrender possession of the property within 10 days after receiving the written demand). Therefore, insofar as we stated in Hawkins v. LaSalle Bank that proof that the foreclosure sale and resulting foreclosure deed were invalid would deprive an ejectment-action plaintiff who bases his or her claim to legal title to the property on a foreclosure deed from having “standing” to maintain the ejectment action we hereby overrule Hawkins v. LaSalle.

Therefore, because Stephanie and Eva established the existence of a genuine issue of material fact with respect to an affirmative defense to Deutsche Bank’s ejectment claim, we reverse the summary judgment in favor of Deutsche Bank, and we remand the action for further proceedings. Because we are reversing on this ground, we decline to address Stephanie and Eva’s other arguments challenging the summary judgment.

APPLICATION GRANTED; OPINION OF MAY 14, 2010, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

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

PITTMAN, J., dissents, with writing.

PITTMAN, Judge,

dissenting.

Viewing the record evidence in the light most favorable to the Berrys as the non-movants, the foreclosed property was worth between $84,800 and $86,500 but fetched $33,915 at the judicial sale, an amount that is between 39% and 40% of the property’s fair-market value. As a general rule, a naked claim of inadequacy of a winning bid will not legally support impeaching the validity of a judicial sale “unless the inadequacy is so glaring and grossly disproportionate to the real value of the property as at once to shock the understanding and conscience of an honest and just man and sufficient to create the presumption of fraud.” Martin v. Jones, 268 Ala. 286, 288, 105 So.2d 860, 863 (1958); accord Hayden v. Smith, 216 Ala. 428, 430-31, 113 So. 293, 295 (1927). “The decided cases indicate that in general a price less than one-third of the value of the land will be regarded as grossly inadequate.” Hayden, 216 Ala. at 431, 113 So. at 295. Because I cannot conclude, on these facts, that the price realized at the foreclosure sale was so low as to shock the conscience, I respectfully dissent from the reversal.


author: THOMPSON, Presiding Judge. BRYAN, Judge,

text:
    Rabon CAGLE and Linda Cagle v. Hutch HAMMOND and Ann Hammond.
    2090583.
    Court of Civil Appeals of Alabama.
    Sept. 3, 2010.

      S. Sanford Holliday, Roanoke, for appellants.
    Mac M. Moorer and Ivan B. Cooper of Lightfoot, Franklin & White, L.L.C., Birmingham; and Jason M. Jackson of Rad-ney, Radney & Jackson, LLC, Alexander City, for appellees.
   THOMPSON, Presiding Judge.

Rabón Cagle and Linda Cagle, husband and wife, appeal from the judgment of the Randolph Circuit Court in favor of Hutch Hammond and Ann Hammond, also husband and wife, on the Cagles’ claim of adverse possession as to certain real property located at the boundary between property owned by each set of parties. For the reasons set forth herein, we reverse the judgment and remand the cause for the entry of a new judgment.

The Cagles own a 22.9-acre parcel of property located in Randolph County (“the Cagle parcel”). The Cagle parcel is bordered on the east by a 154-acre parcel of property owned by the Hammonds (“the Hammond parcel”). A county highway enters the Hammond parcel on the1 western side of its southern boundary and crosses the parcel in a northeasterly direction. A fence runs parallel to the north side of the county highway for several hundred feet from the point at which the highway enters the Hammond parcel from the south. The fence then deviates from the highway and runs in a northwesterly direction across the Hammond parcel and onto and through the Cagle parcel. The total area of the Hammond parcel bound on the north and east by the fence and on the west by the Cagle parcel is 4.373 acres. Hereinafter, we refer to the 4.373 acre parcel as “the disputed parcel.” The disputed parcel is composed of a pasture that extends onto -the Cagle parcel.

On June 24, 2009, the Cagles filed an action against the Hammonds in which they asserted that the portion of the fence that ran through the Hammond parcel constituted the boundary line between the Cagle parcel and the Hammond parcel. The Cagles asserted that they and their predecessors in title had been in exclusive possession of all the property to the west of the fence and that them possession of that property had been open, continuous, hostile, adverse, and exclusive for a period of more than 40 years. They sought a judgment from the court declaring that the fence line constituted the boundary between the parties’ respective properties. The Hammonds filed an answer in which they denied the material allegations of the Cagles’ complaint.

On November 5, 2009, the trial court held a bench trial. Mr. Cagle testified that the Cagle parcel had been owned by Mrs. Cagle’s family for his entire life. Deeds submitted into evidence during Mr. Cagle’s testimony indicated that Mrs. Ca-gle’s mother conveyed the Cagle parcel to Mrs. Cagle in 2001 and that Mrs. Cagle conveyed the property to Mr. Cagle and herself in 2008. During his entire life, Mr. Cagle testified, Mrs. Cagle’s family, and now Mrs. Cagle and he, had used the disputed parcel as pastureland. He testified that Mrs. Cagle and he did not live on the Cagle parcel but that they leased it to Cory Robinson. Mr. Cagle stated that Robinson uses the Cagle parcel and the disputed parcel to pasture his cows and that Robinson had leased the Cagle parcel for the last 40 to 45 years. Mr. Cagle testified that Robinson had maintained the fence that bordered the disputed parcel.

Mr. Cagle testified that Mrs. Cagle’s family, and now Mrs. Cagle and he, had claimed to own the disputed parcel and that Mrs. Cagle and he had held themselves out to the community as the owners of the disputed parcel. He testified that no one other than his wife, his wife’s family, and him had claimed to own the disputed parcel.

Mr. Cagle testified that Mrs.. Cagle and he take their grandchildren to the Cagle parcel to feed horses, to fish, to gather pecans and fruit, and to shoot guns. He stated that they did not do any of those activities on the disputed parcel. He stated that the disputed parcel is used only for grazing Robinson’s cows. The Cagles’ attorney stipulated that the Cagles had not paid the property taxes on the disputed parcel and that the Hammonds had paid those taxes.

Mr. Cagle testified that he contended that the portion of the fence line bordering the disputed parcel constituted the boundary between the Cagle parcel and the Hammond parcel, but he admitted that he did not consider the fence to constitute the border between those parcels when it crossed the boundary between the parcels and entered the Cagle parcel.,

Cory Robinson testified that he had leased the pasture on the Cagle parcel for the last 40 to 45 years. He testified that he had maintained the fence on the eastern boundary of the disputed parcel. He testified that the fence was in place before he began leasing the pasture. He testified that, for the last 40 to 45 years, he has pastured cows on the portion of the Cagle parcel that he leased, as well as on the disputed parcel. He testified that he had never been told to keep his cows off of the disputed parcel. He stated that he checks on his cows at least three times daily. He stated that in all the time he has been leasing the pasture no one has told him that he had to remove his cows from the disputed parcel because it belonged to someone other than Mrs. Cagle’s family and the Cagles.

Shaun Cagle, the son of Mr. and Mrs. Cagle, testified that he was 39 years old and that he had never known anyone, other than his father, his mother, and his mother’s family, to have used the disputed parcel.

Richard .Bisgard, a licenced surveyor, testified that he had surveyed the disputed parcel. A copy of his survey was admitted into evidence. Bisgard testified that the disputed parcel was part of the property described in the Hammonds’ deed to the Hammond, parcel.

Hutch Hammond testified that his wife and he had purchased the Hammond parcel at an estate auction in 2004. He stated that he was told at the time he purchased the parcel that the owner of the parcel had not given anyone permission to put up the fence that crossed the Hammond parcel. He testified that he was also told that every time a surveyor attempted to place a stake to show the location of the southwestern corner of the Hammond parcel, the stake was pulled up. Mr. Hammond testified that, when he purchased the Hammond parcel, he had his lawyer write a letter to the Cagles notifying them of his purchase of the Hammond parcel and requesting that they remove the fence.

On November 10, 2009, the trial court entered a judgment in which it concluded that the Cagles had failed to prove the element of hostility necessary to support their claim of adverse possession of the disputed parcel because they had “believed the [disputed parcel] to be theirs and no one ever told them otherwise.” The trial court also held that the Cagles’ use of the land “was minimally invasive” and ordered the Cagles to remove the fence from the Hammond parcel. The Ca-gles appealed the trial court’s judgment to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

“It is well established that when a trial court, after ore tenus proceedings, enters a judgment setting a boundary line between coterminous landowners, that judgment is presumed correct if it is supported by credible evidence. Valentine v. Ireland, 580 So.2d 581 (Ala.1991). Further, the presumption of correctness that attaches to the findings of fact made by the trial court when it hears ore tenus testimony is particularly strong in adverse-possession cases. Lilly v. Palmer, 495 So.2d 522 (Ala.1986). In an adverse-possession case, the party asserting a claim to the property through adverse possession must show by clear and convincing evidence that there was ‘actual, hostile, open, notorious, exclusive, and continuous’ possession for the statutory period. Grooms v. Mitchell, 426 So.2d 820, 822 (Ala.1983).
“Alabama recognizes two types of adverse possession: (1) statutory adverse possession pursuant to § 6-5-200, Ala. Code 1975, and (2) adverse possession by prescription. Sparks v. Byrd, 562 So.2d 211 (Ala.1990). Specifically,
“ ‘ “Adverse possession by prescription requires actual, exclusive, open, notorious and hostile possession under a claim of right for a period of twenty years. See, Fitts v. Alexander, 277 Ala. 872, 170 So.2d 808 (1965). Statutory adverse possession requires the same elements, but the statute provides further that if the adverse possessor holds under color of title, has paid taxes for ten years, or derives his title by descent cast or devise from a possessor, he may acquire title in ten years, as opposed to the twenty years required for adverse possession by prescription. Code 1975, § 6-5-200. See, Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962).” ’
562 So.2d at 214 (quoting Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 618 (Ala.1980) (emphasis omitted)). Further, our Supreme Court has consistently held that boundary disputes between coterminous landowners are hybrid types of adverse possession subject to a unique set of requirements and a period of adverse possession of only 10 years, even if none of the three additional elements described in § 6-5-200 is present. E.g., Sashinger v. Wynn, 571 So.2d 1065 (Ala.1990); Johnson v. Brewington, 435 So.2d 64 (Ala.1983).”

Henderson v. Dunn, 871 So.2d 807, 810 (Ala.Civ.App.2001).

The trial court’s judgment that the Cagles had not proven their claim of adverse possession of the disputed parcel rested on two findings of fact: (1) that the Cagles had not proven that their claim to the disputed parcel was hostile because “[t]hey believed the land to be theirs and no one ever told them otherwise”; and (2) that the Cagles’ use of the disputed parcel was “minimally invasive.” On appeal, the Cagles contend that the trial court’s judgment is not supported by the evidence.

The undisputed facts demonstrate that, for the 40 to 45 years preceding the trial in this matter, the Cagles and their predecessors in interest owned the Cagle parcel and leased a pasture located on it to Cjpy Robinson. The testimony demonstrated, without dispute, that the pasture Robinson leased extended from the Cagle property and included the disputed parcel. The testimony likewise demonstrated that Robinson pastured his cows on the whole pasture, both the portion on the Cagle parcel and the portion on the disputed parcel. Robinson testified, and, again, it was undisputed, that the fence forming the eastern boundary of the pasture (and the eastern boundary of the disputed parcel) had been in place for the entire 40 to 45 years that he had leased the pasture and that he maintained that fence; No evidence was presented indicating that, at any time before the Hammonds bought the Hammond parcel in 2004, anyone had disputed the Cagles’ and Mrs. Cagle’s family’s ownership of the disputed parcel. To the contrary, the testimony indicated, without contradiction, that the Cagles and their predecessors in interest had claimed ownership of the disputed parcel and had held themselves out as the owners of the disputed parcel.

The trial court’s finding that the Cagles had not proven that their claim to the disputed parcel was hostile is not supported by the evidence. “ ‘ “Possession is hostile when the possessor holds and claims property as his own, whether by mistake or willfully. Smith v. Brown, [282 Ala. 528, 213 So.2d 374 (1968) ].” ’ Strickland v. Markos, 566 So.2d 229, 233 (Ala.1990) (quoting Reynolds v. Rutland, 365 So.2d 656, 658 (Ala.1978)).” Bohanon v. Edwards, 970 So.2d 777, 783-84 (Ala.Civ.App.2007). Moreover, “[t]he 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). The evidence demonstrates, without dispute, that the Cagles and their predecessors in interest had claimed the disputed parcel as their own, that they had held themselves out as the owners of the disputed parcel, and that their tenant , had treated the pasture composing the disputed parcel as part of the property he was leasing from the Cagles and their predecessors in interest. Thus, the undisputed evidence demonstrates that the Cagles’ claim to the disputed parcel was, in fact, hostile.

The trial court’s conclusion that the Cagles’ claim to the disputed parcel was not hostile because they believed the disputed parcel to be theirs and no one had ever told them otherwise is incorrect as a matter of law. As this court has written:

“ ‘If a coterminous landowner holds actual possession of a disputed strip under claim of right, openly and exclusively for a continuous period of 10 years, believing that he is holding to the true line, he will acquire title to that line, even though the belief as to the comet location of the line originated in a mistake.’ Scarbrough v. Smith, 445 So.2d 553, 556 (Ala.1984) (emphasis added). ‘[0]ne does not have to be a willful landgrabber or dishonest in order to acquire title by adverse possession.’ Sylvest v. Stowers, 276 Ala. 695, 699, 166 So.2d 423, 427 (1964).”

Wadkins v. Melton, 852 So.2d 760, 767-68 (Ala.Civ.App.2002) (second emphasis added). See also Sims v. Vandiver, 504 So.2d 250, 252 (Ala.1987) (“It is not necessary that a coterminous landowner be correct in his belief as to the true boundary line in order to possess the requisite intent to adversely obtain title to real property.”).

The trial court’s finding that the Cagles’ use of the disputed parcel had been “minimally invasive” also, does not support its judgment in favor of the Ham-monds. We first note that “ ‘[t]he acts of a tenant inure to the benefit of his landlord where the landlord is an adverse possessor.’ ” Wadkins, 852 So.2d at 766 (quoting Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 619 (Ala.1980)). Thus, Cory Robinson’s pasturing of his cows on the disputed parcel, as well as his maintenance of the fence on the boundary of the disputed parcel, constituted the actions of the persons from whom he was leasing the pasture, i.e., the Cagles and them predecessors in interest.

Mr. Cagle and Robinson both testified that, for the 40 to 45 years preceding the trial, Robinson had pastured his cows on the pasture that extended from the Cagle parcel and made up the disputed parcel. Likewise, the testimony indicated that Robinson had maintained the fence on the eastern boundary of the disputed parcel for the purpose of keeping his cows in the pasture. “ ‘ “An adverse possessor need only use the land ‘in a manner consistent with its nature and character—by such acts as would ordinarily be performed by the true owners of such land in such condition.’ ” ’ ” Bearden, 560 So.2d at 1044-45 (quoting Daugherty v. Miller, 549 So.2d 65, 67 (Ala.1989), quoting in turn Drennen Land & Timber Co. v. Angell, 475 So.2d 1166, 1172 (Ala.1985), quoting in turn Hand v. Stanard, 392 So.2d 1157, 1160 (Ala.1980)). Here, Robinson’s use of the disputed parcel, to pasture his cows, was consistent with the nature and character of the disputed parcel, a pasture. The evidence simply does not support the trial court’s conclusion that Robinson’s use of the pasture for the 40 to 45 years preceding the trial was “minimally invasive”; instead, his use of the disputed parcel was in keeping with the nature and character of the disputed parcel. See McKinney v. Yielding, 426 So.2d 423, 425 (Ala.1983) (“Further, the use of the land in question for pasture would constitute actual possession, since the adverse claimant would be putting the land ‘to such use as it is reasonably adapted.’ ” (quoting Kubiszyn v. Bradley, 292 Ala. 570, 575, 298 So.2d 9, 13 (1974))). Cf. Bearden, 560 So.2d at 1045 (“The maintenance of a house, the cultivation of land and gardens, the pasturing of animals, and the mowing of fields are normal acts of use and serve as sufficient possessory acts to meet the requirements of adverse possession under the facts at issue in this case.”).

The dissent argues that the trial court’s judgment can be affirmed on the basis that the Cagles’ adverse-possession claim fails as a matter of law because there is no evidence indicating that they or their predecessors in interest possessed the disputed parcel in a manner that was open and notorious. We disagree.

Our supreme court has written that

“[o]pen and notorious possession are essential elements of adverse possession, because the landowner is thereby afforded notice of the adverse claim against his land. Thus, to satisfy these two elements, the claimant must provide evidence tending to show that his acts of dominion and control over the property were of such character and distinction as would reasonably notify the landowner that an adverse claim is being asserted against his land.”

Strickland v. Maricos, 566 So.2d 229, 232 (Ala.1990). In Sparks v. Byrd, 562 So.2d 211, 215 (Ala.1990), the court wrote: “Evidence establishing actual possession will also be sufficient to establish ‘open and notorious possession.’ ” Furthermore, “[o]penness, notoriety, and exclusiveness are shown by the doing of acts that could comport with ownership, i.e., such acts as would normally be performed by the owner in using his land to the exclusion of others.” Gonzalez v. Naman, 678 So.2d 1152, 1155 (Ala.Civ.App.1996). Finally, “ ‘possession, to be adverse, need not be so open, continuous, and notorious as necessarily to be seen and known by the owner if he should casually go upon the land.’ ” Clanahan v. Morgan, 268 Ala. 71, 80, 105 So.2d 429, 437 (1958) (quoting Goodson v. Brothers, 111 Ala. 589, 596-97, 20 So. 443, 445 (1896)).

The dissent contends that the existence of the fence bordering the disputed parcel does not, in and of itself, supply the requisite demonstration that the Cagles and their predecessors in interest possessed the disputed parcel in an open and notorious manner. To that assertion we respond, simply, that we agree. The fence; by itself, does not show open and notorious possession of the disputed parcel. What does, in our view, show open and notorious possession of the disputed parcel by the Cagles and their predecessors in interest, is their use of the disputed parcel in a manner that demonstrates their actual possession of the disputed parcel and their “doing of acts [on the disputed parcel] that could comport with ownership, i.e., such acts as would normally be performed by the owner in using his land to the exclusion of others.” Gonzalez, 678 So.2d at 1155.

Mr. Cagle testified at trial that everyone in the community knew that the Cagles and their predecessors in interest claimed the disputed parcel as their own. Further testimony demonstrated that the disputed parcel is composed of a pasture that extends onto the Cagle parcel and that there is no physical dividing line in the middle of the pasture that marks the actual boundary line between the Cagle property and the disputed parcel. The testimony is undisputed that, for the last 40 to 45 years, Robinson, the tenant- of the Cagles and their predecessors in interest, has pastured his cows on the pasture and maintained the fence bordering the pasture. In our view, this is evidence of open and notorious possession of the entire pasture, including that portion of the pasture composing the disputed parcel.

The dissent argues that Robinson did not testify as to how often his cows grazed on the disputed parcel. We do not believe such testimony is necessary in this case. Common sense leads to the undeniable conclusion that if cows are placed in a pasture bordered by a fence, they will graze over the entire pasture, up to the fence, especially when given 45 years to do so. Moreover, any person viewing the pasture would have to conclude that, even if, at the time he or she was viewing the pasture, the cows were not on the disputed parcel, Robinson was allowing his cows to graze on the entire pasture, including that portion composing the disputed parcel. This, in our view, is sufficient evidence that Robinson’s claim to the entire pasture, and, as a result, -the Cagle’s claim to the entire pasture, was open and notorious.

Based on the foregoing, we conclude that the trial court’s judgment was based on findings of fact that were not supported by the evidence of record. As a result, we reverse the judgment and remand the cause to the trial court for the entry of a new judgment consistent with this opinion.

REVERSED AND REMANDED.

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

BRYAN, J., dissents, with writing.

BRYAN, Judge,

dissenting.

I respectfully dissent. We can affirm “the decision of the trial court if it is right for any reason, even one not presented by a party or considered or cited by the trial judge....” Ex parte Wiginton, 743 So.2d 1071, 1072-73 (Ala.1999). In my opinion, the judgment of the trial court in the case now before us is due to be affirmed on the ground that the Cagles failed to prove by clear and convincing evidence that their possession of the disputed parcel was open and notorious for the period necessary to satisfy the requirements of statutory adverse possession, adverse possession by prescription, or the hybrid type of adverse possession applicable to coterminous landowners in boundary-line disputes.

The undisputed evidence established that the Hammonds owned record title to the disputed parcel and that the Cagles did not'own record title to it. Therefore, in order to prevail in this action, the Ca-gles bore the burden of proving that they owned the disputed parcel by virtue of (1) statutory adverse possession, (2) adverse possession by prescription, (3) the hybrid type of adverse. possession applicable to coterminous landowners in boundary-line disputes, or (4) an agreement to move the common boundary line from the line evidenced by the deeds to the eastern boundary of the disputed parcel plus possession of the disputed parcel by the Cagles or their predecessors in title for 10 years. See Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 618-19 (Ala.1980). In Kerlin, the supreme court explained:

“In Alabama there are basically two types of adverse possession, these two types being statutory adverse possession and adverse possession by prescription. Adverse possession by prescription requires actual, exclusive, open, notorious and hostile possession under a claim of right for a period of twenty years. Statutory adverse possession requires the same elements, but the statute provides further that if the adverse possessor holds under color of title, has paid taxes for ten years, or derives his title by descent cast or devise from a possessor, he may acquire title in ten years, as opposed to the twenty years required for adverse possession by prescription.
“Boundary disputes are subject to a unique set of requirements that is a hybrid of the elements of adverse possession by prescription and statutory adverse possession. In the past there has been some confusion in this area, but the basic requirements are ascertainable from the applicable case law. In a boundary dispute, the coterminous landowners may alter the boundary line between their tracts of land by agreement plus possession for ten years, or by adverse possession for ten years. The rules governing this type of dispute are, in actuality, a form of statutory adverse possession.”

390 So.2d at 618-19 (citations omitted).

In the case now before us, no evidence was introduced establishing the existence of an agreement by the parties or their predecessors in title to move the common boundary line evidenced by the deeds in their chains of title. Therefore, in order to prevail, the Cagles had to establish the essential elements of statutory adverse possession, adverse possession by prescription, or the hybrid type of adverse possession applicable in boundary-line disputes. See Kerlin. Proof by clear and convincing evidence of open and notorious possession for the prescribed period is essential to establish all three types of adverse possession. See Kerlin, 390 So.2d at 618 (“Adverse possession by prescription requires actual, exclusive, open, notorious and hostile possession under a claim of right.... Statutory adverse possession requires the same elements.... ” (emphasis added)); Cooper v. Cate, 591 So.2d 68, 70 (Ala.1991) (“It is well settled that a party claiming title to land by adverse possession has a heavy burden and must present clear and convincing proof of such possession. In cases involving coterminous landowners, a party must show that his possession of the land in dispute was actual, hostile, open, notorious, exclusive, and continuous for a 10-year period. We also note that the presumption is in favor of the record owner.” (citations omitted; emphasis added)); and Boren v. Roberts, 423 So.2d 208, 210 (Ala.1982) (“Under the law of Alabama, a person claiming title by adverse possession against the holder of legal title has the burden of proving actual, clear, definite, positive, notorious, open, continuous, adverse, and exclusive possession of a definite tract of land under a claim of right for the time prescribed by law, and such possession must be shown by clear and convincing evidence.” (emphasis added)).

“Open and notorious possession are essential elements of adverse possession, because the landowner is thereby afforded notice of the adverse claim against his land. Thus, to satisfy these two elements, the claimant must provide evidence tending to show that his acts of dominion and control over the property were of such character and distinction as would reasonably notify the landowner that an adverse claim is being asserted against his land.”

Strickland v. Markos, 566 So.2d 229, 232 (Ala.1990) (emphasis added).

In the case now before us, the evidence indicating that the Cagles exercised possession of the disputed parcel consisted of evidence establishing (1) that an original wire fence (“the original fence”) had been strung in the tree line along the eastern boundary of the disputed parcel sometime before Cory Robinson, the Cagles’ tenant, had begun leasing the parcel now owned by the Cagles 40 to 45 years before trial, (2) that someone had torn down the original fence three or four years before the trial and Robinson had subsequently erected a new wire fence (“the new fence”) in the same location using steel or iron fence posts, and (3) that Robinson’s cows had grazed on the disputed parcel during the 40 to 45 years that Robinson had leased the parcel now owned by the Cagles. However, there was no evidence indicating who erected the original fence or why they erected it. Moreover, there was evidence indicating that the original fence had been strung using a line of trees instead of fence posts and that no tree line existed along the common boundary line evidenced by the deeds in the Cagles’ and the Ham-monds’ chains of title. In addition, Rabón Cagle testified that “a long time ago,” i.e., when the original fence was erected, it was customary to use a tree line to string fence wire instead of erecting fence posts for that purpose:

“Q. Point out where you are talking about, the fence.
“A. There is big pine trees, you know, 75 years old. And you can see on them big pines that the barbed wire is about halfway in the pine trees.
“Q. All right.
“A. Long time ago, they would just go from tree to tree. Then they got to where they would stari using posts.
“[The Cagles’ attorney]: We’ll mark these two photographs. We will do this one as # 6.
“Q. When you are talking about the fence line, are you talking about this line that runs this way?
“A. Yes, sir.
“Q. I show you what we have marked for identification as Plaintiffs’ Exhibit #6.
“A. Yes, sir.
“Q. Is that one of those pine trees?
“A. Yes, sir.
“Q. That picture truly and accurately depicts the condition of the fence in the middle of that tree?
“A. Yes, sir.”

(Emphasis added.)

Thus, for all that appears in the record, the original fence could have been erected by the Hammonds’ predecessors in title rather than the Cagles’ predecessors in title; the original fence could have been erected by the Hammonds’ predecessors in title for some purpose other than marking the boundary line between their parcel and the parcel now owned by the Cagles, i.e., to keep them livestock from wandering from them parcel onto the parcel now owned by the Cagles; and the original fence could have been erected along the tree line instead of the boundary line established by the deeds because (1) it was not intended to mark the boundary line and (2) it could be erected along the tree line without erecting fence posts. Because the Cagles did not negate those possibilities, the evidence regarding the existence of the original fence did not establish that the possession of the disputed parcel exercised by the Cagles and their predecessors in title was of such a character as to reasonably notify the Hammonds and their predecessors in title that the Cagles or them predecessors in title were making an adverse claim to ownership of the disputed parcel. See Strickland, supra. Therefore, it did not establish that the possession of the disputed parcel exercised by the Ca-gles and their predecessors in title constituted open and notorious possession. Id.

Robinson testified that he erected the new fence using steel or iron fence posts after someone had torn down the original fence three or four years before the trial. Although Robinson’s erection of that new fence could have evidenced open and notorious use of the disputed parcel, the new fence had not been in place for the period necessary to satisfy the requirements of statutory adverse possession, adverse possession by prescription, or the hybrid type of adverse possession applicable in boundary-line disputes. See Kerlin, supra.

Robinson testified that his cows grazed on the disputed parcel as well as on the Cagles’ parcel, but he did not testify regarding how often they grazed on the disputed parcel. For all that appears in the record, the grazing on the disputed parcel could have occurred only once a year or once a decade. Without evidence describing how often the grazing occurred, the Cagles failed to prove that the grazing was of such a character as to reasonably give the Hammonds and their predecessors in title notice that the Cagles and their predecessors in title were making an adverse claim to ownership of the disputed parcel. Therefore, the evidence regarding grazing did not establish that the Cagles’ possession of the disputed parcel was open and notorious. See Strickland, supra.

Accordingly, I would affirm the judgment of the trial court on the ground that the Cagles failed to prove by clear and convincing evidence that their use of the disputed parcel was open and notorious for the period necessary to satisfy the requirements of statutory adverse possession, adverse possession by prescription, or the hybrid type of adverse possession applicable in boundary-line disputes.

      . Citing McCallister v. Jones, 432 So.2d 489 (Ala.1983), the Hammonds argue that, because the disputed parcel was so large, this case is not one of adverse possession in relation to a disputed boundary line, but, instead, one that is governed by traditional adverse-possession law. Thus, they argue, the Cagles were required to demonstrate that they adversely possessed the disputed parcel for a period of 20 years rather than 10 years. We do not resolve the question of the applicable period for which the Cagles were required to demonstrate adverse possession of the disputed parcel because, based on the length of time the Cagles and their predecessors claimed and used' the disputed parcel, there is no evidence indicating that a different result would obtain depending on whether the Ca-gles were required to demonstrate the elements of adverse possession for 10 years or for 20 years.

      . In their appellate brief, the Hammonds contend that the Cagles failed to prove that their use of the disputed parcel was open, notorious, and exchisive, which are additional elements necessary to demonstrate adverse possession. As discussed above, the dissent contends that, as a matter of law, the evidence demonstrates that the Cagles’ use of the disputed parcel was not open and notorious. We reject that contention because we find that the record provides sufficient evidence of open and notorious possession by the Cagles and their predecessors in interest.
      Although we reject the proposition that the Cagles' use of the disputed parcel was not, as a matter of law, open and notorious, we do not decide at this time whether there is evidence from which the trial court could conclude, as a factual matter, that the Cagles’ use of the property was not open and notorious. In its final judgment, the trial court made findings of fact, but it limited those findings to its conclusion that the Cagles had not demonstrated that their possession of the disputed parcel was hostile; the trial court did not make any findings with regard to the other elements of adverse possession. Although we can assume findings of fact in support of the trial court's judgment when the trial court makes no findings of fact, see Lemon v. Golf Terrace Owners Ass’n, 611 So.2d 263, 265 (Ala.1992), in the present case, the trial court made specific findings of fact. Because we therefore cannot assume findings of fact with regard to the additional elements of adverse possession that the trial court did not address, there is nothing for this court to review with regard to those additional elements. Thus, we will leave if to the trial court, on remand, to address those elements.