author:
PER CURIAM. BRYAN, Judge,
      MOORE, Judge,

text:
    Jeffery MAUDSLEY v. Lisa MAUDSLEY.
    2091137.
    Court of Civil Appeals of Alabama.
    April 15, 2011.
    Shannon L. Millican, Gadsden, for appellant.
    Jane V. Floyd, Gadsden, for appellee.
   PER CURIAM.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala.R.App. P.; Smith v. Smith, 887 So.2d 257, 265 (Ala.Civ.App.2003); and Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 926 (Ala.2002).

BRYAN, J., concurs specially, with writing, which THOMAS, J., joins.

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

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

BRYAN, Judge,

concurring specially.

I agree that the judgment of the Etowah Circuit Court is due to be affirmed. I write specially to note my opinion that Jeffery Maudsley, the appellant, invited the trial court to commit the alleged error that he complained of on appeal — i.e., that the trial court erred by enjoining him and his former wife, Lisa Maudsley, from consuming alcohol during their custodial periods with their children. See Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 808 (Ala.2003) (discussing the invited-error doctrine). Because it is “well settled that a party may not induce an error by the trial court and then attempt to win a reversal based on that error,” id., I believe the judgment of the trial court could also be affirmed on the basis of the invited-error doctrine.

THOMAS, J., concurs.

MOORE, Judge,

dissenting.

Jeffery Maudsley (“the father”) appeals from a divorce judgment entered by the Etowah Circuit Court (“the trial court”) to the extent that it restricts him from consuming alcohol during his visitation periods with the children of his marriage to Lisa Maudsley (“the mother”). A majority of this court, in a no-opinion order of affir-mance, affirms the trial court’s judgment, citing Smith v. Smith, 887 So.2d 257 (Ala.Civ.App.2008).

The mother filed a complaint for a divorce against the father on May 20, 2009. At trial, on June 1, 2010, the mother testified that she disapproved of the father’s holding “parties” at his home at which he and his friends consumed alcoholic beverages. The mother requested that the trial court include a provision in its judgment prohibiting the father from consuming any alcoholic beverages during his periods of visitation with the parties’ children. The father testified that, during the marriage, he and the children had frequently attended barbecues with his friends at which the father and his friends would drink a few beers, but, he stated, they never drank to the point of intoxication. The mother does not drink alcohol because of either an aversion to or an allergy to the substance, and, although she initially attended the barbecues with the father and the children, she eventually quit going altogether, after which the father drove the children to and from those gatherings without incident. The father testified that, after the parties had separated, he started holding the barbecues at his home. The father denied having any alcohol problem or any family history of alcohol abuse, and he indicated that he had never been arrested for an alcohol-related offense. The father testified that he did not want or need the alcohol-consumption restriction but that he would abide by such a restriction if it was ordered by the trial court.

The trial court entered a judgment on June 2, 2010, that, among other things, enjoined the parties from “using alcohol during custodial periods.” On June 18, 2010, the father filed a motion to alter, amend, or vacate the judgment, requesting, among other things, that the trial court vacate or modify the alcohol-consumption restriction. On August 11, 2010, the trial court entered an order modifying certain portions of the divorce judgment, but it declined to modify or vacate the restriction on the consumption of alcohol. After other postjudgment proceedings, which are irrelevant to this appeal, the father timely appealed to this court.

I agree with the father that the record contains no evidence indicating that his use of alcohol during his visitation periods with the children has had any detrimental effect on the children or has placed them at risk of any harm. Before this court’s opinion in Smith, supra, this court had consistently held that a parent cannot be enjoined from engaging in a lawful adult activity absent evidence indicating that the activity subjected a child to an undue risk of harm. See, e.g., Jones v. Haraway, 537 So.2d 946, 947 (Ala.Civ.App.1988) (holding that, to support a restriction on visitation because of father’s “indiscreet” behavior in living with his girlfriend out of wedlock, the custodial parent must present evidence proving that the misconduct has had a “substantial detrimental effect” on the child at issue). Applying that reasoning, this court, in Andrews v. Andrews, 520 So.2d 512 (Ala.Civ.App.1987), upheld an alcohol-consumption ban based on specific evidence indicating that the consumption of alcoholic beverages by the father in that case had endangered and would continue to endanger the children. On the other hand, in Mann v. Mann, 725 So.2d 989 (Ala.Civ.App.1998), this court reversed a judgment requiring supervised visitation because there was no evidence indicating that the noncustodial parent’s use of alcohol had “ever posed a danger to the children” or that the noncustodial parent had been arrested for any alcohol-related conduct. 725 So.2d at 992.

In Smith, supra, this court, for reasons not stated in the opinion, totally abandoned the rationale of Andrews and Mann by holding that a trial court can impose an alcohol-consumption ban on parents if it decides that such a ban is in the best interests of the child, regardless of the lack of any evidence indicating that the parents had exposed, or likely would expose, the child to harm as the result of their consumption of alcohol. 887 So.2d at 265. I find the holding in Smith to be totally inconsistent with not only Andrews and Mann, but the entire thrust of Alabama’s visitation law regarding the regulation of lawful adult activity in divorce judgments. Quite simply, I believe that a divorce court does not have the power to enjoin a parent from engaging in a lawful adult activity absent concrete evidence indicating that the child at issue necessarily will be harmed without the injunction. Thus, I agree with the vast majority of jurisdictions that hold that an alcohol-consumption ban cannot be upheld without evidence of real detriment to the child. See, e.g., Mariscal v. Watkins, 914 P.2d 219 (Alaska 1996) (holding that prohibition on the consumption of alcohol by the mother when the child is in the mother’s custody, as well as prohibition on the mother’s driving with the child in a vehicle within 12 hours after the mother consumed alcohol, were unreasonably burdensome and were insufficiently related to the child’s best interests because the trial court had not received any evidence indicating that the mother abused alcohol); and In re Marriage of Finer, 920 P.2d 325 (Colo.App.1996) (holding that trial court had abused its discretion in prohibiting the parents from drinking alcoholic beverages in the presence of the child when neither party abused alcohol).

Although the father in this case did not expressly request that this court overrule Smith, the father did argue that an alcohol-consumption ban should only be upheld based on evidence indicating that the consumption of alcohol would unduly endanger the children, which is contrary to the holding in Smith. Thus, the father has at least impliedly asked this court to overrule Smith, a request which I believe the court should grant. Because a majority of the court disagrees, I respectfully dissent.

PITTMAN, J., concurs.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Rosemary Posey BROWN v. James Earl BROWN.
    2091167.
    Court of Civil Appeals of Alabama.
    April 29, 2011.

      Peter J. Palughi, Jr., Mobile, for appellant.
    Oliver J. Latour, Jr., Foley, for appellee.
   THOMAS, Judge.

Rosemary Posey Brown (“the exwife”) and James Earl Brown (“the exhusband”) were divorced in January 2006. This is the second time these parties have been before this court. See Brown v. Brown, 26 So.3d 1210 (Ala.Civ.App.2007), affirmed, Ex parte Brown, 26 So.3d 1222 (Ala.2009).

In January 2007, while the appeal from the divorce judgment was pending in this court, both the exwife and the exhusband filed petitions seeking to hold the other in contempt. The exwife’s petition requested that the exhusband be held in contempt for failing to pay a $60,000 property settlement as ordered by the divorce judgment. The exhusband’s petition requested that the exwife be held in contempt for failing to pay the mortgage payment on the former marital residence. Both petitions were placed on the administrative docket pending the resolution of the appeal.

In October 2009, after this court dismissed the application for rehearing in the appeal, the trial court placed the contempt petitions on the active docket. The exhus-band filed a pleading requesting that the two contempt petitions be consolidated and requesting to be able to supplement or amend his pleadings with additional requests to hold the exwife in contempt. The trial court granted the exhusband’s motion. In his “supplemental” pleadings, the exhusband requested that the exwife be held in contempt for (1) failing to convey a timeshare she was ordered to convey in the divorce judgment and that she be required to do so or to pay the exhusband its value, (2) failing to pay certain credit-card debts that the exhusband contended she was required to pay pursuant to the amended divorce judgment, and (3) failing to pay the mortgage payments on the former marital residence, which the exhus-band had paid to prevent foreclosure. The exhusband requested that he be awarded a judgment reimbursing him for the credit-card debt he had paid and the mortgage payments and other expenses he had paid in order to assist the exwife in maintaining the marital residence after the divorce.

After a trial at which the only witness was the exhusband, the trial court entered a judgment ordering that the timeshare be transferred, that all other issues relating to realty were barred by res judicata, that the exwife was responsible for $45,530.17 in credit-card debt paid by the exhusband, and that the exwife was responsible for $34,703.63 in mortgage payments and other sums expended by the exhusband for the costs of maintaining the marital residence. The judgment further awarded the exhusband a judgment against the ex-wife for those amounts. After her post-judgment motion was denied, the exwife appealed.

On appeal, the exwife makes three arguments. She first argues that the exhus-band did not prove that the credit-card debt was incurred by her during the period after the parties’ separation. Secondly, as a companion argument, the exwife argues that the date of separation had been established as September 2003 by the law-of-the-case doctrine and that the parties had not separated in April 2003 as the exhusband had contended at the contempt trial. Finally, the exwife argues that the exhusband did not prove the reason for monthly cash payments he had made to the exwife during 2006 and that, as a result, he did not establish that she owed him for those payments under the divorce judgment.

At the trial, the exhusband testified that the parties separated in April 2003. He said that he had not given the exwife permission to open credit cards in his name or to sign his name on applications or checks during the period of separation. The exhusband then testified concerning eight credit-card debts that he had paid off and which he contended were the responsibility of the exwife under the amended divorce judgment.

Regarding the Chevron credit card, the exhusband testified that he had not signed the application for that card. He said that he had not authorized the exwife to apply for the card. He further testified that he had not received any benefit from the card and that he had not used it. When shown a request that a second card in the ex-wife’s name be provided for the exwife, the exhusband testified that he had not signed the document. The exhusband said that he paid off the debt associated with this card in the amount of $220.61.

Regarding the AT & T credit card, the exhusband testified that he had not applied for that card. He said that the exwife “made application” for that account in April 2003 and further testified that he had received no benefit from the card and had not used it. According to the exhus-band, two transfer checks had been drawn against the account in June and July 2008. The exhusband testified that the he paid off a $7,656.68 balance on that card.

Regarding the CitiBank credit card, which was applied for on April 24, 2003, the exhusband testified that he had not applied for the account. He also stated that he had never used the account. According to the exhusband, he had paid the $8,249.39 balance on that account.

Regarding the MBNA credit card, the exhusband testified that the account had been opened well before the parties’ separation. However, the exhusband testified that the account was at a zero balance in October 2003. He further testified that two checks had been drawn off of the account in August 2004: one to Fleet Mortgage and one to Chase Mortgage. According to the exhusband, neither check bore his signature. The exhusband said that he did not have any accounts at Fleet Mortgage or at Chase Mortgage that would have required him to write the checks on the MBNA account. Two other checks, at least one of which was made out to the exwife, were drawn off of the account in October and December 2004. The exhusband said that he paid a total of $18,974 in 2006 to pay off the balance on this account.

Regarding the Discover credit-card account, the exhusband testified that the ex-wife had been added to the account as an authorized user in January 2003 without his authorization. He further testified that, as of January 2004, the account had a $1,325.19 balance. According to the ex-husband, in July 2006, when the exhus-band paid off the account, the balance was $2,179.17

Regarding the Wal-Mart credit card, the exhusband testified that he had not applied for the card. He also said that he did not use the Wal-Mart card. The ex-husband did not testify regarding the date the account was opened. He stated that he had paid the $3,340 balance on the card in 2007.

Regarding the Bank of America credit card, the exhusband testified that he had not applied for the card. He denied that the signature on the pre-approved application form purporting to be his was his actual signature; however, the exhusband said that the other signature on the application form was the exwife’s signature. He also stated that he had never used the card. Although the exhusband testified that the balance on the card was $9,364.75, he said that he had settled the account for $2,000.

Finally, regarding the Discover loan, the exhusband testified that he had not applied for the loan. He did not testify on direct examination regarding the date the loan was made; however, on cross-examination he stated that the loan application was dated January 29, 2003. He did state that the loan had an outstanding, unpaid balance of $2,910.

Notably, the exhusband did not enter into evidence any of the application forms for or the statements of any of the credit cards at issue. On cross-examination, he testified about a few of the charges on a few of the accounts when questioned by the exwife’s attorney. He explained that the other charges besides the two transfer checks drawn on the AT & T account in June and July 2003 were charges in June, July and August 2003 for items including prescriptions from USAA, for a USAA insurance premium, and for a day spa. The exhusband testified that neither he nor the exwife had USAA insurance coverage for prescriptions. Likewise, he testified that some of the charges on the CitiBank card were made in August and September 2003. The Discover card, he said, had a balance of $1,484.99 in August 2003, and, according to the exhusband, the Bank of America card had a balance of $6,662.24 on September 9, 2003.

The pertinent portion of the amended divorce judgment regarding the exwife’s responsibility for debts she incurred during the parties’ separation reads as follows:

“The [exwife] is responsible for all expenses incurred by her on credit cards in [the exhusband’s] name or the parties’ names jointly, since the date of separation. The [exwife] was awarded temporary alimony pending the divorcef,] and was responsible for all expenses she incurred, except for those specifically assigned to [the exhusband]. Further [the exwife] is to destroy all credit cards in her possession that have the [exhus-band] listed as a responsible party. [The exwife] shall reimburse [the exhus-band] for any bills on these credit cards that he has paid.”

The exwife argues that the exhus-band did not prove that the charges on the various credit cards were incurred by her or that they were incurred by her during the period after the parties separated. First, we must consider the exwife’s argument that, based on the law-of-the-case doctrine, the date of the parties’ separation was established as September 2003 despite the exhusband’s testimony at trial that the parties separated in April 2003. The ex-husband argues that the doctrine has no application here.

“ ‘According to the doctrine of the law of the case, “whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.” Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987).... Because the trial court entered [its] judgment on the same record as that before the Court of Civil Appeals, the facts on which the Court of Civil Appeals’ decision was predicated continue to be the facts of the case, and, therefore, the Court of Civil Appeals’ conclusions in its ... opinion are the law of the case.’ ”

Quimby v. Memorial Parks, Inc., 835 So.2d 134, 135-36 (Ala.2002) (quoting Ex parte S.T.S., 806 So.2d 336, 341-42 (Ala.2001)). Because our opinion recounted as a portion of the underlying procedural facts that the parties separated in September 2003, see Brown, 26 So.3d at 1212, the exwife contends that this court’s opinion established that date as the date of separation.

As the exhusband argues, however, the doctrine applies only to those issues considered and decided by the appellate court. See Hilb, Rogal & Hamilton Co. v. Beiersdoerfer, 989 So.2d 1045, 1057 (Ala.2007) (“ ‘[T]he law of the case established by a prior appeal does not extend to preclude consideration of issues not presented or decided on the prior appeal.’ ”). In our opinion in Brown, this court recounted the date of separation stated in the briefs of the parties. However, that date had no bearing on the issues decided in the opinion. Thus, this court did not decide that the date of the parties’ separation was September 2003 such that reconsideration of the date of the separation of the parties was precluded by the law-of-the-case doctrine.

We also note that the exwife requested that the trial court take “judicial notice” of the exhusband’s statement of facts in his petition for the writ of certiora-ri from this court’s affirmance in Brown, in which the exhusband had stated that the date of the parties’ separation was September 2003. While judicial notice may not have been the appropriate vehicle by which to draw the court’s attention to the exhusband’s admission that the date of the parties’ separation was September 2003, the exhusband did not object. The exhus-band’s reliance on that date in his petition for the writ of certiorari is equivalent to an admission of the fact, which the trial court would have been free to consider as evidence bearing on the actual date the parties separated. See Liberty Nat’l Life Ins. Co. v. Daugherty, 840 So.2d 152, 161 (Ala.2002) (quoting 9 John Henry Wigmore, Evidence at Trials in Common Law § 2588 at 821-22 (Chadbourn rev. ed.1981)) (explaining the difference between an ordinary admission and a judicial admission). However, the exhusband’s statement in his brief regarding the date of separation was not a judicial admission, which is made for the specific purpose of conceding the truth of some fact at trial. Daugherty, 840 So.2d at 161. Clearly, because the date of separation of the parties had no bearing on the issues presented and decided by both this court and our supreme court, the exhusband’s recitation of that fact was not for the purpose of conceding the truth of that fact. Thus, we cannot agree with the exwife that the ex-husband’s statement regarding the parties’ separation date established that the parties did indeed separate in September 2003. The trial court could properly have determined from the exhusband’s testimony that the parties separated in April 2003.

We now turn to the exwife’s argument that the evidence at trial did not establish that she made the charges on the credit cards that the exhusband claimed she was required to pay and that the evidence did not establish that the charges were made during the relevant period, after the parties separated.

“Where the trial court has heard ore tenus evidence and has made findings based on that evidence, we presume that the trial court’s judgment based on those findings is correct, and it will be reversed only if the judgment is found to be plainly and palpably wrong, after a consideration of all the evidence and after making all the inferences that can be logically made from the evidence, Clark v. Albertville Nursing Home, Inc., 545 So.2d 9 (Ala.1989); and King v. Travelers Ins. Co., 513 So.2d 1023 (Ala.1987); and the trial court’s judgment will be affirmed if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment. Clark v. Albertville Nursing Home, Inc., supra; McCrary v. Butler, 540 So.2d 736 (Ala.1989).”

Adams v. Boan, 559 So.2d 1084, 1086 (Ala.1990). “ ‘The appellate courts are not allowed to substitute their own judgment for that of the trial court if the trial court’s decision is supported by reasonable inferences to be drawn from the evidence.’ ” Knight v. Beverly Health Care Bay Manor Health Care Ctr., 820 So.2d 92, 98 (Ala.2001) (quoting Ex parte Pielach, 681 So.2d 154, 154-55 (Ala.1996)).

The exhusband argues that the trial court had before it sufficient evidence from which to determine that the exwife owed the exhusband for the sums he had expended to retire the credit-card debt. He notes that this court must assume that the trial court made those factual findings necessary to support the judgment, see Benefield v. Benefield, 953 So.2d 418, 422 (Ala.Civ.App.2006) (“Because the trial judge made no specific findings of fact, we will assume that the trial judge made those findings necessary to support the judgment.”), and that the trial court and not this court is in the best position to consider the evidence presented and make decisions regarding the evidence. See, e.g., Auto-Owners Ins. Co. v. DeLude, 827 So.2d 806, 811 (Ala.Civ.App.2001) (“When reviewing a trial court’s findings of fact after it has taken oral testimony, this court must follow the ore tenus rule, meaning that deference must be accorded the decision of the trial court in its factual determinations because the trial court personally heard the oral testimony and had the opportunity to observe and evaluate the witnesses; that court, therefore, is presumed to be in a better position to weigh the testimony and evidence.”). However, the crux of the exwife’s argument is not that the trial court improperly evaluated the evidence or improperly reconciled conflicting evidence, it is that the exhusband failed to present any actual evidence linking her to the credit card charges or to establish the period in which the credit-card debt was incurred. We agree with the exwife that the exhusband failed to present evidence that the all of the debt relating to the various cards was incurred by the exwife during the parties’ separation. However, we disagree with the exwife that the ex-husband failed to prove that any of the debt was incurred by her after the parties’ separation.

Regarding all the credit cards, the ex-husband established that he had not incurred the debt associated with those cards. However, he did not specifically establish that the all of the debt associated with each of those cards was incurred by the exwife. Instead, he left the trial court with what he argues is the reasonable inference that the exwife used those cards to amass substantial debt during the separation period that he subsequently retired.

There is evidence that the exwife was an authorized user on one or more of the accounts, specifically the Discover and the Chevron. Moreover, an inference that the exwife opened the Chevron account arises because of the request for a second card in the exwife’s name that the exhusband denied authorizing. The evidence also reflects that the exwife’s signature appears on the Bank of America Visa card application, along with a signature purporting to be that of the exhusband, and that the exwife “made application for” the AT & T card in April 2003.

The exhusband established that the CitiBank card was first opened in April 2003 and that the debt associated with it was incurred before September 2003, which would have been after the date of the separation in April 2003. Thus, the exwife was properly required to reimburse the exhusband for the debt associated with the AT & T card. Likewise, the evidence at trial created the inference that the ex-wife opened the Chevron card account during the period of separation. Therefore, the exwife was properly required to reimburse the exhusband for the debt associated with the Chevron card.

Regarding the Bank of America card, the exhusband established that the balance due on the September 2003 statement was $6,662.24; although the exhusband did not testify to the date the account was opened, he did testify at the beginning of the trial that he had not authorized the exwife to open any credit-card accounts during the period of separation. Accordingly, the trial court could have inferred that the Bank of America credit card account was opened during the period of separation when the exhusband had not authorized the exwife to perform such tasks and therefore could have properly required the exwife to reimburse the exhusband for the debt associated with that card. The exhusband also did not establish the date the Wal-Mart account was opened; however, as explained above, the trial court could have inferred that the Wal-Mart account was also opened during the period of separation and, as a result, that the exwife was required to reimburse the exhusband for the amount of the debt associated with that card.

Unlike the Bank of America and Wal-Mart credit-card accounts, the MBNA account was opened by the exhus-band well before the parties separated; however, the exhusband established that the account had a zero balance before September 2003. The exhusband testified on direct regarding two checks drawn off of the account to mortgage companies. Although the exhusband testified that he did not sign those checks, he did not testify that the exwife had done so. As noted above, on cross-examination, the exhus-band mentioned two other checks drawn off of the account. At least one of the checks, in the amount of $4,700, was written to the exwife. All four of the checks were written on the account in or after August 2004; thus, all of the charges incurred on that account were incurred after the date of separation. Because the trial court could have inferred that the exwife had written the check to herself and the other checks as well, we agree that the trial court could have included in the amount the exwife was required to reimburse the exhusband the amount he had paid on the MBNA account.

Regarding the Discover card, the exhusband explained that the amount owed on the card in August 2003 was $1,400, indicating that the charges on that card were made before August 2003. However, the exhusband had testified that the Discover card account had been in existence since February 2002 and that the exwife had been an authorized user since January 2003; without the credit-card statements, there is no way to know whether the $1,400 owed on the account was charged after April 2003 or some time before April 2003. We cannot agree that the trial court properly included the Discover card account in the amount to be reimbursed to the exhusband. Similarly, the Discover loan was incurred in January 2003, a date preceding the parties’ separation. Thus, the exwife was not required to pay that particular loan under the amended judgment.

Without evidence that all of the debts the exhusband retired were actually incurred by the exwife during the parties’ separation, we cannot conclude that the evidence supports the trial court’s judgment in the exhusband’s favor for the entire $45,530.17. We therefore reverse the judgment of the trial court insofar as it ordered the exwife to pay the exhusband $45,530.17 to reimburse him for paying the credit-card debt. As noted above, certain credit-card debt was established to have been incurred by the exwife during the period of the parties’ separation. The trial court is instructed on remand to enter a judgment in favor of the exhusband for $40,441.

The exwife also argues that the exhusband should not have been awarded a judgment reimbursing him for cash payments totaling $5,554.02 he made to the exwife between January 2006 and April 2006. The exwife agrees that the judgment required that she be responsible for the mortgage payments and that the ex-husband was properly awarded a judgment for those mortgage payments he made during 2006 and 2007. However, she contends that the exhusband was not ordered to make the cash payments to the exwife and that she was not obligated to repay those amounts, absent proof that they were connected to the mortgage payments she was required to make under the divorce judgment. The exwife, however, did not present this argument regarding the sufficiency of the evidence to support the trial court’s judgment awarding the exhus-band $34,703.63 to reimburse him for mortgage payments and “housing costs” relating to the former marital residence in her postjudgment motion. Her failure to raise this issue to the trial court precludes our consideration of it. New Properties, L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala.2004) (holding that a postjudgment motion is typically required to preserve issues regarding the sufficiency of the evidence in a non-jury trial where the trial court has not made specific findings of fact); Kelley v. Kelley, 52 So.3d 534, 544 (Ala.Civ.App.2010) (same).

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

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

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

      . The exwife’s petition also sought that a third party, a private individual who held the second mortgage on the former marital residence, be enjoined from foreclosing the second mortgage. That claim was severed from the contempt claim and assigned to another circuit judge.

      . The exwife’s request that the exhusband be held in contempt for failing to pay a $60,000 property settlement to the exwife was rendered moot by this court's reversal of the $60,000 award to the exwife in Brown, 26 So.3d at 1219.

      . On direct examination, the exhusband testified that the account had a zero balance in 2004 and that the checks were drawn on the account in the summer of 2003. On cross-examination, however, the exhusband testified in more detail and indicated that the account had a zero balance in September 2003 and that the checks were drawn on the account in 2004. Because the exhusband’s testimony on cross-examination is more logical, we have used that testimony regarding the dates.

      . We recognize, as pointed out by the exhus-band, that the trial court’s amended divorce judgment required the exwife to be responsible for debt she incurred after the separation no matter whether the credit card upon which the debt was incurred was a joint card or one solely in the exhusband’s name. However, the exhusband seems to disregard the necessity for proving that the debt was actually incurred by the exwife. He says that he had “extensive documentation” that he did not admit into evidence at trial because the trial court questioned the need for such information since the judgment required the ex-wife to be responsible for the debt regardless of whose name was on the credit card. While the trial court’s reluctance to have “the complete dog and pony show” may be the reason the exhusband did not present his "extensive documentation,” the exhusband was not relieved of the burden of proving that the exwife was the party that incurred the debt during the period of separation, which he did not undertake to do.


author: THOMAS, Judge. BRYAN, Judge,

text:
    MOBILE ATTIC, INC., and Mobile Attic Franchising, Inc. v. KIDDIN’ AROUND OF ALABAMA, INC., d/b/a Real People, et al.
    2090735.
    Court of Civil Appeals of Alabama.
    April 29, 2011.

      Michael L. Douglas of Friedman, Leak, Dazzio, Zulanas & Bowling, P.C., Birmingham, for appellant.
    A. Courtney Crowder and Robert G. Upchurch of Phelps, Jenkins, Gibson & Fowler, L.L.P., Tuscaloosa, for appellee TotalCom, Inc.; and Robert D. Norman, Jr., Birmingham, for appellees Kiddin’ Around of Alabama, Inc., People Store, Inc., and Houghton Talent, Inc.
   THOMAS, Judge.

In early 2005, Mobile Attic, Inc., and Mobile Attic Franchising, Inc. (referred to collectively as “MA”), which rent portable storage facilities, were considering what direction to take their advertising. Specifically, MA desired to have professional television commercials produced to offer to franchisees as a method of assisting the franchisees in developing and furthering MA’s business. To that end, MA began discussions with an advertising agency, TotalCom, Inc. (“TC”). Most of the discussions regarding the commercials were between Betsy Harris, the marketing director for MA,, and Jimmy Warren, the president of TC.

In March 2005, MA’s discussions with TC yielded a proposal encompassing the production of a set of three television commercials. TC presented MA with a written proposal containing estimates from three production companies. The written proposal indicated that the estimates in-eluded “all anticipated costs for television production: concepts, story boards, writing, models, props, sets, shooting, production, site expenses, and editing.” After considering the estimates, MA selected one of the three companies, Dill Productions (“DP”), to produce a set of three television commercials. Harris e-mailed Warren on September 26, 2005, and gave Warren permission to begin production of the commercials with DP as the production company. At no point did MA and TC or MA and DP enter into a written contract containing detailed terms relating to the production of the television commercials.

DP produced the commercials, and TC billed MA for the commercials, which cost a total of $196,000, in October 2005 and November 2005; MA paid both invoices. Neither invoice contained a breakdown of the costs being charged by DP. The commercials were made available for MA’s use in February or March 2006.

On March 16, 2007, approximately a year after MA first started airing the commercials, Warren contacted Harris by email, requesting that MA pay the talent-renewal fees for the professional actors used in the commercials. Harris did not immediately respond to Warren; she first forwarded the e-mail to Josh Wilson, who served as the chief financial officer of Mobile Attic Franchising and the secretary/treasurer of Mobile Attic. In her email to Wilson, Harris stated: “[T]his is the first I’ve heard of [the talent-renewal fees]” and “I think I would have remembered this because it was VERY important to me that there be no attachment to the talent or the agency with our commercials.” (Capitalization in original.)

Neither Harris nor Wilson responded to Warren’s e-mail, and Warren again contacted Harris by e-mail on April 7, 2007, stating that TC was being pressured by a talent company to pay the talent-renewal fees that had become due. Harris responded to Warren by an e-mail sent on April 9, 2007, in which she stated that she was forwarding Warren’s e-mail to Wilson; she also stated in her response that she “[did] not recall any conversations that we’ve had about ongoing talent fees.” In response to Harris’s e-mail communicating her lack of memory about the talent-renewal fees, Warren sent another e-mail to Harris on April 10, 2007, stating that he recalled discussing the talent-renewal fees when discussing the production budgets and other costs with Harris in her office. Harris forwarded the April 10, 2007, e-mail to Wilson and copied Warren, stating in her message that she did not remember discussing talent-renewal fees, that such fees would have sent up a red flag for her, and that no paperwork had been located regarding the television commercials. Harris also asked Wilson if he recalled anything from the meetings with Warren and requested that Wilson ask Pete Cash, the president of MA, if he recalled a discussion about talent-renewal fees.

Warren e-mailed Harris a second time on April 10, 2007, apologizing that Harris did not recall the discussion of the talent-renewal fees. He stated that the fees were “standard and required procedure when using professional talent.” Harris responded to Warren by e-mail again that same day, stating:

“I would not have known that it is standard and required procedure to pay annual talent fees for professional talent. I had never used professional talent and you had never provided me with a breakdown of our costs, or ongoing fees. If I had known there were fees or other costs attached, I would have used [MA employees] or different talent, as that is what I had done in the past with great success. The only amount that I recall is for the total production of the three commercials. I have asked the others in the office who were involved in our meetings and none of us remember any conversation regarding ongoing talent fees. We have no documentation anywhere of this.”

Warren responded to Harris’s second April 10, 2007, e-mail, stating:

“I’m sorry if my note implied that you should have known about the talent renewals. I would not expect you to know other than our discussion about it. I feel very badly about the misunderstanding ....
“Bill [Branch, another TC employee,] and I remember discussing it, but I truly regret that apparently we did not make it clear.”

In the closing paragraph of his e-mail, Warren offered to have TC pay one-half of the talent-renewal fees for the year “because apparently we contributed to the misunderstanding.” Ultimately, TC paid all the talent-renewal fees for the year running from March 2007 to March 2008. In July 2007, TC resigned from further representation of MA. In its resignation letter to MA, Warren stated that TC would accept no further responsibility for future talent-renewal fees.

At some point in the spring of 2008, Kiddin’ Around of Alabama, Inc., d/b/a Real People (“RP”), the talent company that provided the professional actors used in MA’s commercials, contacted MA directly regarding the talent-renewal fees for the year running from March 2008 to March 2009. MA apparently did not respond to RP, and RP’s Treasurer, W.G. Henry, sent a letter, dated June 4, 2008, to MA demanding payment of the talent-renewal fees within 10 days. When MA did not pay the talent-renewal fees, RP engaged Robert D. Norman to send a demand letter to MA. Norman’s letter, dated June 13, 2008, demanded payment of $10,500 in talent-renewal fees by June 20, 2008. Norman’s letter also threatened legal action against MA if the payment was not made.

On July 2, 2008, MA filed an action seeking declaratory relief against TC and RP and asserting a fraudulent-suppression claim against TC. Specifically, MA alleged that it had received proposals to produce television commercials from TC, that MA had selected DP to produce the commercials based on TC’s proposal, that MA had never seen DP’s estimate to TC, that either TC or DP had contracted with RP for RP to provide the actors for the commercials, that MA had never been informed of the talent-renewal fees until Warren e-mailed Harris in March 2007, and that MA had never had any communications with RP until RP demanded that MA pay the talent-renewal fees in June 2008. MA requested that the trial court declare that MA was not responsible for the talent-renewal fees and that, if RP was owed any talent-renewal fees,.TC was the party responsible for their payment. MA sought a jury trial on the fraudulent-suppression claim against TC.

TC answered MA’s complaint on August 13, 2008; RP filed a “response” to the complaint on August 25, 2008. On September 9, 2008, People Store, Inc. (“PS”), and Houghton Talent, Inc. (“HT”), two other talent companies with which RP had contracted, moved to intervene in the action and sought a temporary restraining order (“TRO”); on October 9, 2008, the parties agreed to allow PS and HT to intervene in the action, and PS and HT withdrew them request for a TRO. In September 2009, RP, PS, and HT (collectively referred to as “the talent companies”) asserted what they entitled a “conditional counterclaim,” in which they sought $21,000 in talent-renewal fees from MA if MA were unsuccessful in its declaratory-judgment action.

Trial on the declaratory-judgment claim was held on November 23, 2009; a separate trial on the fraudulent-suppression claim was set for a later date. After the conclusion of the November 23, 2009, trial, the trial court entered an order on December 10, 2009, declaring that

“(1) The Plaintiff, [MA,] is responsible for the payment to the Defendants of renewal of talent fees for services rendered by [the talent companies].
“(2) As to the counterclaim, a Judgment is entered for the counterclaimants, [the talent companies,] in the amount of Twenty One Thousand Dollars ($21,000.00).
“(3) A Status Conference is set on January 6, 2010, at 8:30 a.m. as to the fraud claim by [MA] against [TC].”

On December 31, 2009, MA sought an extension of the time to file what it considered to be a postjudgment motion pursuant to Rule .59, Ala. R. Civ. P., which the trial court purported to grant. However, because the fraudulent-suppression claim remained outstanding, the December 10, 2009, order was not a final judgment capable of supporting an appeal, and any motion seeking reconsideration of that judgment would not have been a postjudgment motion under Rule 59. See Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999) (“[A] Rule 59 motion may be made only in reference to a final judgment or order.”). MA sought a second “extension” on February 3, 2010, which the trial court also purported to grant. On March 5, 2010, MA ultimately filed a motion, purportedly pursuant to Rule 59, seeking reconsideration of the trial court’s December 10, 2009, order. The trial court denied that motion on March 29, 2010, and MA filed its notice of appeal of the December 10, 2009, order on May 10, 2010.

Because the December 10, 2009, order was not a final judgment, this court remanded the cause to the trial court for it to “determine whether to enter a Rule 54(b), Ala. R. Civ. P., certification as to the December [10], 2009, order.” The trial court certified the order as a final judgment on February 24, 2011.

“The trial court’s judgment followed a bench trial, at which the court heard ore tenus evidence. ‘ “When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.” ’ Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)).
“ ‘ “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). The rule applies to “disputed issues of fact,” whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala.1995). The ore tenus standard of review provides:
“ ‘ “[WJhere the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.” ’ ”

Yeager v. Lucy, 998 So.2d 460, 462-63 (Ala.2008) (quoting Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000) (quoting in turn Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977))).

The testimony at trial was provided by Wilson, Warren, and Henry. The deposition testimony of Harris was introduced as a trial exhibit and read into the record. By and large, the testimony of Warren and Harris mirrored their statements in their respective e-mails, quoted above, which were admitted as evidence at trial. Henry’s testimony was irrelevant to the question whether MA and TC had entered into a contract containing any terms regarding the payment of talent-renewal fees.

Warren testified that he recalled discussing the talent-renewal fees with Harris in her office at one of the several meetings the two had had between March 2005 and September 2005 as they discussed production and other costs for the commercials MA desired to be made. Specifically, Warren said that he recalled telling Harris that using professional talent in the commercials would necessitate the payment of “residuals” in subsequent years if the commercials were used. Warren also said he explained to Harris that the talent-renewal fees would need to be paid each year the commercials were used after the first year and that they were an industry standard. Warren admitted that he did not assign a particular amount to the talent-renewal fees because, he said, they were “a moving target” because they were based on the markets in which the commercials were aired. According to Warren, he had assumed that Harris understood his explanation of the talent-renewal fees because she had asked no questions during the discussion and because she had portrayed herself as knowledgeable about and experienced in marketing and advertising. Warren admitted that Harris had not specifically responded to him when he mentioned the talent-renewal fees.

Harris denied any memory of a discussion regarding any ongoing costs like the talent-renewal fees. She further testified that she did not recall the details of any meeting other than a story-board meeting. However, she testified that she would not have agreed to such fees and that she specifically recalled telling Bill Branch, another TC employee, that she did not want “web fees” associated with the commercial because she wanted to be able to use the commercial when and where she chose. According to Harris, she had had an issue regarding “web fees” arise with another “piece” that Cash had done that had featured Terry Bradshaw as a narrator. Harris said any mention of talent-renewal fees or ongoing fees would have sent up a “red flag” for her because of that other experience. She further testified that she had informed TC that she did not want any strings attached to the commercials and that she intended to use them for three to five years.

Wilson testified that Harris had had the most contact with TC regarding MA’s advertising and marketing plans. Although he and Cash had attended a few of the meetings and although both had to approve of the expenditure for the commercials, Wilson said that Harris was responsible for advertising for MA. According to Wilson, his understanding of the proposal from TC was that the estimates from the production companies covered “total costs” for the commercials. He said that the use of the word “models” in the proposal indicated to him that the estimates from the production companies included the cost of the actors used in the commercials. Wilson testified that he would not have agreed to purchase the commercials had he known that MA would be obligated to pay talent-renewal fees because those fees seemed to him to be “open ended.” He explained that he would have had no way of predicting the total costs of the commercials over a three- to five-year period if MA were required to pay talent-renewal fees. Wilson also testified that Harris had had an issue with fees arise over the “piece” Cash had done involving Terry Bradshaw; according to Wilson, the issue with that “piece” arose in late 2005 or early 2006, which would have been after the discussions she had had with Warren between March 2005 and September 2005. Wilson admitted that MA continued to use the commercials even after it learned of the talent-renewal fees and even after RP contacted MA regarding the delinquent fees in 2008.

On appeal, MA makes two arguments for reversal. MA first argues that the Statute of Frauds, codified at Ala.Code 1975, § 8-9-2, bars recovery of the talent-renewal fees under the oral contract between MA and TC because the contract was one that could not be performed within one year. Secondly, MA argues that TC failed to prove mutual assent to the alleged oral contract regarding the talent-renewal fees. We will address MA’s second argument first.

MA argues that TC failed to prove mutual assent to the contract between the two companies because it could not prove a “meeting of the minds” regarding the talent-renewal fees. As MA correctly points out, a “meeting of the minds” or a mutual assent to the terms of a contract is necessary to the formation of a contract. See Lilley v. Gonzales, 417 So.2d 161, 163 (Ala.1982). According to MA, Harris’s silence at the time the talent-renewal fees were allegedly discussed was not sufficient to relay consent to that particular term of the oral contract. MA relies on Denson v. Kirkpatrick Drilling Co., 225 Ala. 473, 144 So. 86 (1932), as support for the proposition that silence cannot be construed as assent.

However, MA has taken a simplistic view of the discussion of mutual assent in Denson, in which our supreme court began by explaining the general rule that, unless a contract is required by law to be in writing and signed by the parties, an offer-ee need not sign the contract to evince his or her mutual assent to it. Denson, 225 Ala. at 479, 144 So. at 91. The court then cautioned that “ ‘such an acceptance, however, to become effective as a binding contract must be positive and unambiguous.’ ” Id. (quoting Stephenson Brick Co. v. Bessemer Eng’g & Constr. Co., 218 Ala. 325, 326, 118 So. 570, 571 (1928), and citing 1 Williston on Contracts, pp. 127, 168, §§ 72, 90). In the context of that discussion, the court noted that “[t]his statement of the general rule precludes acceptance by mere silence and inaction, as ‘generally speaking an offeree has a right to make no reply to offers, and his silence and inaction cannot be construed as an assent to the offer.’ ” Id. (quoting 1 Williston on Contracts, p. 168, § 91).

However, even if “mere silence” cannot be considered an assent to an offer, this case does not involve “mere silence.” ‘“It is well settled that whether parties have entered a contract is determined by-reference to the reasonable meaning of the parties’ external and objective actions.’ ” Cook’s Pest Control, Inc. v. Rebar, 852 So.2d 730, 738 (Ala.2002) (quoting SGB Constr. Servs., Inc. v. Ray Sumlin Constr. Co., 644 So.2d 892, 895 (Ala.1994)). Neither the uncommunicated beliefs of a party nor any misunderstandings regarding the import of particular terms prevent an objective manifestation of intent from being effective. Lilley, 417 So.2d at 163; Mayo v. Andress, 373 So.2d 620, 624 (Ala.1979); and Johnson v. Boggan, 325 So.2d 178, 182, 56 Ala.App. 668, 672 (Ala.Civ.App.1975).

Based on Warren’s testimony, the talent-renewal fees were part of the discussion about the production and other costs of the television commercials that MA desired TC to develop. “[A] contract may consist of several communications between the parties, some in writing and some oral, each constituting a link in the chain which comprises the entire contract.” Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 304 (Ala.1986). Thus, the written proposal submitted by TC, the e-mails between the parties regarding the selection of DP as the production company, and the oral discussions between Warren and Harris reflected the agreement between MA and TC relating to the television commercials. Likewise, the actions of the parties in reference to the contract can form the basis of mutual assent; that is, when the conduct of one party is such that the other party may reasonably draw the inference of assent to the agreement, that conduct is effective as assent. See Deeco, Inc. v. 3-M Co., 435 So.2d 1260, 1262 (Ala.1983); Mayo, 373 So.2d at 624. Harris’s authorization of the production of the commercials, MA’s participation in that process, MA’s payment of the invoices submitted by TC, MA’s acceptance of the finished commercials, and MA’s use of the finished commercials all formed the basis of MA’s assent to the contract with TC. We cannot agree with MA that Harris’s reported silence when Warren mentioned talent-renewal fees during preproduction discussions prevented mutual assent to the terms of the contract in light of the other actions of Harris and MA that conveyed agreement to the terms of the contract regarding the production of the commercials.

The dissent disagrees with our conclusion that the actions of MA in going forward with the making of the commercials can evidence mutual assent in these circumstances because, the dissent says, TC’s actions in failing to list talent-renewal fees in the proposal and in indicating that the second invoice was for the “final” payment for the production costs relating to the commercials prevents the actions of the parties from evidencing mutual assent. Although the proposal and the invoices do not indicate that talent-renewal fees were included in the cost of producing the commercials, that fact comports with the explanation of how those fees work. The first year’s fees for the cost of the talent used in the commercials are included in the production costs. Talent-renewal fees that could accrue for the years the commercial might be used after the first year cannot be calculated at the time of production; that those fees would even be due is purely speculative at the time of the production of the commercial. In addition, the talent-renewal fees are not payable to the production company but instead must be paid to the talent companies, whether directly or indirectly. Thus, we disagree that the actions of TC in making the proposal and in invoicing MA for the production costs of the commercials undercut our conclusion that mutual assent was manifested by MA’s actions in proceeding to have the commercials produced and in accepting and using the finished commercials.

Before we turn to MA’s argument that the oral contract between it and TC is void under the Statute of Frauds, we must consider whether the Statute of Frauds defense was raised below or was waived by MA’s failure to plead that affirmative defense in its complaint or another pleading. TC and the talent companies argue on appeal that MA waived the Statute of Frauds defense by not raising it in its complaint or in response to the counterclaim. Hughes v. Wallace, 429 So.2d 981, 983 (Ala.1983) (“Under Rule 8(c), Alabama Rules of Civil Procedure, the statute of frauds is an affirmative defense which must be specially pleaded.... [F]ailure to do so constitutes a waiver of that defense.”). According to TC and the talent companies, MA first raised the defense in counsel’s closing argument, at which point, say TC and the talent companies, they objected. However, based on our review of the transcript, it appears that MA raised the theory as a basis for a judgment in 'its favor in counsel’s opening statement to the trial court and that none of the appellees objected at that time. Thus, we must consider whether the issue was tried by the implied consent of the parties under Rule 15(b), Ala. R. Civ. P., which provides, in pertinent part, as follows:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.”

As this court has explained,

“[t]he typical Rule 15(b) case involves a situation in which a party, at trial and without objection from an opposing party, presents evidence that gives rise to an issue that was not pleaded. It has been consistently held that when issues that have not been raised in the pleadings are tried by the express or implied consent of the parties, those issues are treated in all respects as if they had been raised in the pleadings.”

Tounzen v. Southern United Fire Ins. Co., 701 So.2d 1148, 1150 (Ala.Civ.App.1997).

The evidence at trial clearly established that the contract at issue was an oral contract, and MA’s reliance on the Statute of Frauds defense was placed squarely before the trial court at the start of the trial. See Hosea O. Weaver & Sons, Inc. v. Towner, 663 So.2d 892, 896 (Ala.1995) (“It is well settled law in Alabama that implied consent of the parties can be found when an opposing party fails to object to the introduction of evidence raising the disputed issue initially.”); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1278 (3d ed. 2004) (“Even as late as trial, if evidence relating to an unpleaded affirmative defense is introduced without objection, Rule 15(b) requires the pleadings to be treated as if they actually had raised the defensive issue.”); see also Robinson v. Morse, 352 So.2d 1355, 1357 (Ala.1977). Therefore, we conclude that the Statute of Frauds defense was asserted by MA at trial without timely objection and that it was tried by the implied consent of the parties. Towner, 663 So.2d at 896. We will therefore consider MA’s Statute of Frauds argument.

The Statute of Frauds requires certain agreements to be in writing to be enforceable. The statute reads, in relevant part:

“In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
“(1) Every agreement which, by its terms, is not to be performed within one year from the making thereof.”

§ 8-9-2.

MA argues that the agreement to pay talent-renewal fees was not enforceable under the Statute of Frauds because the fees would not have come due and payable until early 2007, more than one year after the alleged oral contract was made, which the parties agree was no later than September 2005. Thus, MA contends, the agreement to pay the talent-renewal fees could not have been performed within one year.

We need not decide, however, whether the oral contract between MA and TC is barred under subsection (1) of § 8-9-2, because, as the appellees point out, the Statute of Frauds applies only to exec-utory contracts and not to executed ones. Ex parte Ramsay, 829 So.2d 146, 155 (Ala.2002). Although MA argues that the oral contract between it and TC remains execu-tory, we cannot agree.

“A contract is executory if neither party has fully performed his obligation to the other party.... A contract is executed, and not voided by the Statute of Frauds, if [one party] has fully performed his obligation to the [other party] and sues the [other party] to obtain [that party’s] performance or the completion of [that party’s] performance.”

Ex parte Ramsay, 829 So.2d at 155. As our supreme court has explained, a contract is not executory when “[n]othing remains to be done except to pay the money.” Scott v. Southern Coach & Body Co., 280 Ala. 670, 678, 197 So.2d 775, 777 (1967). The evidence is undisputed that TC and the talent companies all performed any obligations they may have had under the oral contract between MA and TC or any agreements stemming from that contract. The only remaining performance under the oral contract was MA’s payment of the talent-renewal fees when or if such payment became due. We conclude, then, that the oral contract between MA and TC is an executed contract not barred by the Statute of Frauds.

In conclusion, we have determined that the trial court had before it sufficient evidence to find mutual assent between MA and TC regarding the terms of their oral contract, including the requirement that MA pay talent-renewal fees. Thus, an oral contract was formed between MA and TC regarding the production of and payment for the television commercials. We have also determined that the oral contract between MA and TC is an executed and not an executory contract, and, as a result, that the Statute of Frauds would not void that oral contract. Based on these determinations, we conclude that the judgment declaring that MA was responsible for the payment of the talent-renewal fees and awarding the talent companies $21,000 on their counterclaim seeking payment of those fees is due to be affirmed.

AFFIRMED.

THOMPSON, P.J., concurs.

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

BRYAN, J., dissents, with writing.

PITTMAN, J., recuses himself.

BRYAN, Judge,

dissenting.

Undisputed Facts

The following facts are undisputed. In 2005, Mobile Attic, Inc., and Mobile Attic Franchising, Inc. (collectively “MA”), which rent portable storage facilities, began discussing with TotalCom, Inc. (“TC”), an advertising agency, the possibility of having professional television commercials produced for MA. MA was represented in those discussions by Betsy Harris, the marketing director for MA; TC was represented in those discussions by Jimmy Warren, TC’s president. Following the initial discussions between Harris and Warren, Warren, in March 2005, sent Harris a written proposal containing estimates from three production companies of the cost for producing a set of three commercials for MA. TC’s written proposal stated that those “[ejstimates include all anticipated costs for television production: concepts, story boards, writing, models, props, sets, shooting, production, site expenses, and editing.” (Emphasis added.) After considering the estimates, MA selected Dill Productions (“Dill”) as the production company to produce the commercials, and Harris, on September 26, 2005, sent Warren an e-mail telling him to proceed with the production of the commercials using Dill as the production company. TC and MA did not prepare and sign a written contract memorializing the terms of their agreement. TC subsequently sent MA an invoice dated October 6, 2005, billing MA for “ ½ of production costs to produce” the three commercials and an invoice dated November 11, 2005, billing MA for the “[f]inal ½ of production costs to produce” the three commercials. MA paid TC’s October 6, 2005, and November 11, 2005, invoices in full. On March 16, 2007, approximately a year after MA first started airing the commercials, Warren sent Harris an e-mail requesting that MA pay talent-renewal fees for the professional actors used in the commercials. MA did not pay the talent-renewal fees.

Procedural History

MA sued TC and one of the talent agencies claiming the talent-renewal fees, seeking a judgment declaring that it was not obligated to pay the talent-renewal fees and that, if any talent-renewal fees were owed, they were owed by TC. MA also stated a claim of fraudulent suppression against TC and sought a jury trial with respect to that claim. Two other talent agencies claiming talent-renewal fees intervened. Subsequently, all three talent agencies asserted counterclaims against MA, seeking $21,000 in talent-renewal fees. The trial court ordered a separate jury trial for MA’s fraudulent-suppression claim and held a bench trial regarding MA’s claim seeking a declaratory judgment and the talent agencies’ counterclaims seeking $21,000 in talent-renewal fees. Following the bench trial, the trial court entered a judgment declaring that MA was obligated to pay the talent-renewal fees and awarding the talent agencies $21,000 in talent-renewal fees. The trial court did not make any express findings of fact.

MA then appealed. Because the trial court’s judgment did not dispose of MA’s fraudulent-suppression claim and the trial court had not certified the judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., we reinvested the trial court with jurisdiction to determine whether to certify the judgment as a final judgment pursuant to Rule 54(b), and the trial court eventually certified it as a final judgment pursuant to Rule 54(b).

Disputed Evidence

Warren testified that, in a meeting after he sent Harris the written proposal in March 2005 and before Harris sent him her September 26, 2005, e-mail telling him to proceed with the production of the commercials, he told Harris that MA would be responsible for paying talent-renewal fees and that Harris made no response. Harris testified that she had no recollection of Warren ever mentioning that MA would be responsible for paying talent-renewal fees before she received his March 16, 2007, email asking TC to pay the talent-renewal fees and that she would not have agreed to the production of the commercials if she had heard Warren say that MA would be responsible for paying the talent-renewal fees.

Analysis

MA argues, among other things, that the trial court erred in declaring that MA is obligated to pay the talent-renewal fees because, MA says, there was no mutual assent by MA and TC that MA would be responsible for the talent-renewal fees. I agree. Because TC and MA did not prepare and sign a written contract memorializing the terms of their agreement, we must determine whether they mutually assented that MA would be obligated to pay the talent-renewal fees on the basis of their conduct. See Lilley v. Gonzales, 417 So.2d 161, 163 (Ala.1982).

The written proposal TC sent MA in March 2005 expressly stated that the “[e]s-timates include all anticipated costs for television production: concepts, story boards, writing, models, props, sets, shooting, production, site expenses, and editing.” (Emphasis added.) There was no mention of talent-renewal fees in the proposal. Moreover, the October 6, 2005, invoice TC sent MA billed MA for “ ½ of production costs to produce” the three commercials and the November 11, 2005, invoice TC sent MA billed MA for the “[fjinal ½ of production costs to produce” the three commercials. It is undisputed that MA paid both those invoices in full. Neither of those invoices referred to any future amounts MA would owe, and, indeed, the November 11, 2005, invoice stated that it represented the “final ” half of the costs to produce the commercials, which indicated that MA would not owe any further amount. Although Warren testified that he mentioned to Harris that MA would be obligated to pay talent-renewal fees in a meeting after sending her the written proposal and before she told him to proceed with the production of the commercials, he admitted that she made no response to that statement. Moreover, subsequent to Warren’s allegedly mentioning to Harris that MA would be obligated to pay the talent-renewal fees, TC sent MA written invoices indicating that the invoices, together, represented the full amount MA would owe for the production of the commercials.

The conduct of TC in sending MA the October 6, 2005, and November 11, 2005, invoices, the conduct of TC in stating in the November 11, 2005, invoice that it represented the “final ” half of the production costs, and MA’s conduct in paying the October 6, 2005, and November 11, 2005, invoices in full indicates that the parties agreed that the October 6, 2005, invoice and the November 11, 2005, invoice together represented the full amount that MA had agreed to pay. Thus, even if the trial court found that Warren had told Harris that MA would be responsible for paying talent-renewal fees, the subsequent conduct of the parties indicates that there was no mutual assent to that putative term of the contract. Consequently, because the trial court’s error in holding that MA was responsible for paying the talent-renewal fees was an error in applying the law to the facts, the ore tenus rule does not cloak that holding with a presumption of correctness. See Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007) (“ ‘[T]he 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.’ ” (quoting Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005))).

The main opinion asserts that it is reasonable that the invoices would not account for talent-renewal fees because, the main opinion says, (1) the talent-renewal fees would not become payable unless the commercials were aired for more than one year; (2) when the commercials were produced, it was speculative whether the commercials would be aired for more than one year; and (3) the talent agencies were the parties who would ultimately be entitled to the talent-renewal fees. Those three factors might explain why TC did not include a provision obligating MA to pay the talent-renewal fees in the parties’ contract, but they do not support the conclusion that the parties mutually assented to the inclusion of such a provision in their contract.

Accordingly, because there was no conduct by the parties evidencing their mutual assent to the inclusion in their contract of a provision obligating MA to pay the talent-renewal fees, I would (1) hold that the trial court erred in holding that MA was obligated to pay talent-renewal fees over and above the total amount billed to it in the October 6, 2005, and November 11, 2005, invoices, (2) reverse the judgment of the trial court, and (3) remand the cause with instructions for the trial court to enter a judgment in favor of MA. Therefore, I respectfully dissent.

      . According to the evidence at trial, talent-renewal fees are used to compensate the actors appearing in particular commercials because the actors are precluded from appearing in other commercials during the time and in the markets that the particular commer-ciáis are being run. The fees vary based on the geographic regions in which television commercials are aired and can apparently be paid either yearly or quarterly to either the talent company or the advertising agency, which then pays the talent company.

      . We note that such an extension is not permitted under the Rules of Civil Procedure. See Rule 6(b), Ala. R. Civ. P. (permitting the trial court to enlarge the time within which to perform an act under the rules except the time to take any action under certain rules, including Rule 59(b), (d), and (e)).

      . The record indicates that talent agencies charge "talent-renewal fees” for actors who appear in a commercial because the actors cannot appear in other commercials in the markets where the first commercial is airing until the first commercial ceases airing.

      . Nothing herein should be interpreted as expressing an opinion regarding whether the talent agencies may recover the talent-renewal fees from TC.