author: BOLIN, Justice. MURDOCK, Justice

text:
    Ex parte SECRETARY OF VETERANS AFFAIRS, an officer of the United States of America (In re Frank S. Smith, Jr. v. Secretary of Veterans Affairs, an officer of the United States of America).
    1101171.
    Supreme Court of Alabama.
    Feb. 10, 2012.

      John T. Bender, Mobile, for petitioner.
    Matthew Kinder, Fultondale, for respondent.
   BOLIN, Justice.

On April 23, 2009, the Secretary of Veterans Affairs (“the Secretary”), an officer of the United States of America, sued Frank S. Smith, Jr. (“Frank”), in the Jefferson Circuit Court, stating a claim of ejectment and seeking possession of Frank’s house in Bessemer. On August 3, 2010, the trial court entered an order, granting the Secretary’s motion for a summary judgment. Frank appealed the summary judgment to the Court of Civil Appeals, which reversed the summary judgment and remanded the action for further proceedings. See Smith v. Secretary of Veterans Affairs, 92 So.3d 766 (Ala.Civ.App.2011). We granted the Secretary’s petition for certiorari review. We reverse and remand.

I. Factual Background and Procedural History

The facts and procedural history of this case are set forth in detail in the Court of Civil Appeals’ opinion:

“Frank purchased a house located on 9th Court South in Bessemer (‘the house’) in 1998. In connection with the purchase, Frank, joined ‘pro forma’ by his wife, Juliet L. Smith (‘Juliet’), mortgaged the house to Franklin American Mortgage Company (‘Franklin’) to secure the payment of a promissory note evidencing a debt in the principal amount of $60,690.
“On April 23, 2009, the Secretary sued Frank and Juliet, stating a claim of ejectment and seeking possession of the house. As the factual basis of his claim, the Secretary alleged that the mortgage had been assigned to him; that he had sold the house at a foreclosure sale on February 22, 2007; that he had purchased the house at the foreclosure sale; that the auctioneer who had sold the house at the foreclosure sale had executed an auctioneer’s deed conveying the house to the Secretary; that the Secretary had demanded in writing that Frank and Juliet vacate the house; and that Frank and Juliet had failed to vacate the house.
“Juliet had vacated the house before the Secretary filed his ejectment action, and she was never served with process. Frank, however, still lived in the house, and he was served. Answering, Frank denied the allegations of the complaint and asserted various affirmative defenses, which included ‘[defective notice,’ ‘[defective sale,’ and ‘[wrongful foreclosure.’
“The Secretary moved for a summary judgment, asserting that, as a matter of law, he was entitled to possession of the house because, he said, he owned legal title to the house by virtue of the auctioneer’s deed. In support of his motion, the Secretary submitted an affidavit signed by Scott Hiatt, which stated:
“ ‘My name is Scott Hiatt, and I am Assistant Vice President and Attorney in Fact for Bank of America, N.A. In my employment capacity, I am personally familiar with the account of Frank S. Smith, Jr. and Juliet L. Smith....
“‘On February 22, 2007, Plaintiff, Bank of America, N.A., sold at foreclosure the following real property located in Jefferson County, Alabama: “ ‘[legal description of the house];
“ ‘Pursuant to power of sale contained in a promissory note and mortgage executed by Frank S. Smith, Jr. and Juliet L. Smith dated December 29, 1998, to and in favor of Franklin American Mortgage Company by instrument recorded in ... the records in the Office of the Judge of Probate, Jefferson County, Alabama, which mortgage was subsequently assigned to The Secretary of Veterans Affairs, an Officer of the United States of America by instrument recorded ... and re-recorded in ... the said Probate Court Records.
“‘Frank S. Smith, Jr. and Juliet Smith defaulted in the payments of said indebtedness and the Secretary of Veterans Affairs commenced foreclosure with written notices to Frank S. Smith, Jr. and Juliet Smith and due newspaper publication in The Alabama Messenger.
“‘Said real property was sold at foreclosure February 22, 2007, for a successful bid of $66,097.50, paid by The Secretary of Veterans Affairs, Purchaser. Frank S. Smith, Jr. and Juliet Smith were notified of said foreclosure sale by letter dated February 28, 2007, sent by certified mail of the foreclosure proceeding and [Frank S. Smith and Juliet Smith] were given ten (10) days to vacate said property.’
“(Emphasis added.) Along with Hiatt’s affidavit, the Secretary submitted an un-certified copy of the mortgage; uncerti-fied copies of the subsequent assignments of the mortgagee’s rights under the mortgage, which included an assignment to the Secretary; an uncertified copy of the auctioneer’s deed; an unauthenticated copy of an affidavit by the publisher of the Alabama Messenger; and an unauthenticated copy of a letter dated February 28, 2007, from an attorney representing the Secretary and addressed to Frank and Juliet at the house, which informed them that the Secretary had purchased the house at the foreclosure sale on February 22, 2007, and demanded that they vacate the house within 10 days.
“Frank opposed the summary-judgment motion by filing a pleading titled ‘Defendant’s Response to Plaintiffs Motion for Summary Judgment.’ In his response, Frank argued, among other things, that the Secretary had failed to establish that he was entitled to possession of the house because, Frank said, the Hiatt affidavit did not comply with Rule 56(e), Ala. R. Civ. P., because, Frank said, (1) it did not state how Hiatt, as an officer of, and attorney-in-fact for, Bank of America, N.A. (‘Bank of America’), had acquired personal knowledge of the information recited in his affidavit, (2) it did not affirmatively show that Hiatt was competent to testify to that information, and (3) it was not accompanied by sworn or certified copies of the documents to which it referred.
“Following a hearing, the trial court entered a summary judgment in favor of the Secretary on August 3, 2010, without stating its rationale. On August 31, 2010, Frank filed a Rule 59, Ala. R. Civ. P., postjudgment motion, which the trial court denied on October 13, 2010.”

92 So.3d at 766-68 (footnote omitted).

II. Appeal Before the Court of Civil Appeals

Frank argued before the Court of Civil Appeals that Scott Hiatt’s affidavit did not comply with Rule 56(e), Ala. R. Civ. P., because, he said:

“(1) [The affidavit] did not state how Hiatt, as an officer of, and attorney-in-fact for, Bank of America had acquired personal knowledge of the information recited in his affidavit; (2) [the affidavit] did not affirmatively show that Hiatt was competent to testify to that information; and (3) [the affidavit] was not accompanied by sworn or certified copies of the documents referred to in the affidavit.”

92 So.3d at 768. The Secretary, on the other hand, argued that Frank had waived his objection to Hiatt’s affidavit and to the unsworn, uncertified, and unauthenticated documents that supported the affidavit because, he said, Frank did not move the trial court to strike them. The Court of Civil Appeals concluded that Frank was not required to move the trial court to strike the Hiatt affidavit and the supporting documents because Frank had objected to the inadmissibility of the affidavit and the supporting documents in his pleading titled “Defendant’s Response to Plaintiffs Motion for Summary Judgment.” The Court of Civil Appeals reversed the judgment of the trial court, relying upon Ex parte Elba General Hospital & Nursing Home, Inc., 828 So.2d 308 (Ala.2001) (noting that an objection to a trial court’s consideration of unauthenticated materials submitted in support of a summary-judgment motion need not be in any particular form). The Court of Civil Appeals stated:

“In the case now before us, although Frank did not move to strike Hiatt’s affidavit and the unsworn, uncertified, and unauthenticated documents that accompanied it, Frank’s response to the summary-judgment motion called the trial court’s attention to the inadmissibility of the affidavit and those documents by objecting to them and stating the grounds of the objection. Therefore, we find no merit in the Secretary’s argument that Frank waived his objection to the Hiatt affidavit and the documents that accompanied it because he failed to move to strike them. See Ex parte Elba Gen. Hosp. & Nursing Home, Inc.”

92 So.3d at 769 (emphasis added).

III. Standard of Review

“The standard of review applicable to a summary judgment is well established:
“ ‘The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present “substantial evidence” creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12-21-12(d), Ala.Code 1975. Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life As-sur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“ ‘In our review of a summary judgment, [either on a direct appeal or on a certiorari review,] we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).’
“Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182,184 (Ala.1999).”

Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d at 311. In addition, “[o]n appeal, this Court reviews a summary judgment de novo ... and affords'no presumption of correctness to the trial court’s ruling on questions of law....” Board of Trs. of Univ. of Alabama v. American Res. Ins. Co., 5 So.3d 521, 526 (Ala.2008).

TV. Discussion

We granted the Secretary’s petition for certiorari review to address the issue whether Frank’s failure to file a written motion to strike the Hiatt affidavit waived for appellate review any issue regarding the trial court’s consideration of that affidavit. In reversing the trial court’s summary judgment in favor of the Secretary, the Court of Civil Appeals interprets Ex parte Elba General Hospital to mean that an objection to a defective affidavit, without a formal motion to strike the affidavit, will suffice to preserve for appellate review any issue regarding the trial court’s consideration of the defective affidavit in determining that there was no genuine issue of material fact. In Ex parte Elba General Hospital, the defendant nursing home filed a motion for a summary judgment accompanied by the affidavit Marie Le-pore, R.N. The trial court entered a summary judgment in favor of the nursing home. The plaintiff, Gerald H. Nelson, filed a motion to alter, amend, or vacate the judgment, in which he stated that he had argued that at the summary-judgment hearing he had made an oral motion to strike portions of the Lepore affidavit. The trial court denied Nelson’s motion to alter, amend, or vacate the judgment, and Nelson appealed to the Court of Civil Appeals. The Court of Civil Appeals acknowledged that Nelson had failed to object to the Lepore affidavit. The Court of Civil Appeals, nevertheless, reversed the summary judgment in favor of the nursing home, concluding that the Lepore affidavit was inadmissible and that enforcing Nelson’s failure to object would result in a “gross miscarriage of justice.” 828 So.2d at 311. This Court reversed the judgment of the Court of Civil Appeals, concluding that Nelson had failed to preserve for appellate review the issue whether the Le-pore affidavit was defective. This Court elaborated:

“Although Nelson stated in his motion to alter, amend, or vacate the judgment that during the hearing on the motion for summary judgment he had made an oral motion to strike Lepore’s affidavit, Elba General, in its brief before us, emphatically denies that Nelson made such a motion. Nelson has not contradicted this denial in his brief before us. The record provides no indication that the trial court ruled on any such motion. This Court’s review is limited to matters contained in the record, and nothing in the record, other than the statement in Nelson’s postjudgment motion, supports the view that Nelson ever made such a motion....
“On the question whether a trial court should consider a defective affidavit introduced in support of a motion for summary judgment and not objected to by the opposing party, we have consistently held that a failure to object constitutes a waiver of the right to object to the affidavit and that in the absence of an objection the trial court may properly consider such an affidavit, even if an objection alleging the particular defect would clearly have been proper. See Lennon v. Petersen, 624 So.2d 171 (Ala.1993); Cain v. Sheraton Perimeter Park S. Hotel, 592 So.2d 218 (Ala.1991); Morris v. Young, 585 So.2d 1374 (Ala.1991); Perry v. Mobile County, 533 So.2d 602 (Ala.1988). An objection need not be made in any particular form. See McMillian v. Wallis, 567 So.2d 1199, 1205 (Ala.1990) (holding that a party must ‘call the [trial] court’s attention’ to the fact that a deposition or affidavit is inadmissible and that by failing to do so a party waives any objection to the court’s considering the affidavit or deposition).”

Id. at 312-13.

In Perry v. Mobile County, 533 So.2d 602 (Ala.1988), this Court adopted the following language from C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil § 2738 (2d ed.1983):

“ ‘A party must move to strike an affidavit that violates Rule 56(e); if he fails to do so, he will waive his objection and, in the absence of a “gross miscarriage of justice, the court may consider the defective affidavit. This principle applies to affidavits containing evidence that would not be admissible at trial as well as to affidavits that are defective in form. The motion to strike must be timely, [and] the decision on that question is left to the discretion of the trial judge. It is clear that a motion to strike presented for the first time on appeal comes too late.
“ ‘The court will disregard only the inadmissible portion of the challenged affidavit and consider the rest of it.... [A] motion to strike should specify the objectionable portions of the affidavit and the grounds for each objection. A motion asserting only a general challenge to an affidavit will be ineffective.’ ”

533 So.2d at 604-05 (emphasis added).

Cases decided after Perry have not always been clear in holding that a party challenging the admissibility of an affidavit must object to the affidavit and move to strike it. See Ex parte Diversey Corp., 742 So.2d 1250, 1253-54 (Ala.1999) (holding that “the court can consider inadmissible evidence if the party against whom it is offered does not object to the evidence by moving to strike it”); Elizabeth Homes, L.L.C. v. Cato, 968 So.2d 1, 4 (Ala.2007) (“[I]f an affidavit or the documents attached to an affidavit fail to comply with [Rule 56(e), Ala. R. Civ. P.,] the opposing party must object to the admissibility of the affidavit or the document and move to strike.”); Ware v. Deutsche Bank Nat’l Trust Co., 75 So.3d 1163 (Ala.2011) (party challenging admissibility of affidavit and supporting documents pursuant to Rule 56(e) must object thereto and move to strike); but see Blackmon v. Brazil, 895 So.2d 900, 903 n. 2 (Ala.2004) (“Although the plaintiffs argue on appeal that these two affidavits and the listing contract were inadmissible, the plaintiffs did not raise such objections in the trial court. Therefore, the plaintiffs waived their objections to this evidence.”); Ex parte Unitrin, Inc., 920 So.2d 557, 560 (Ala.2005) (“Unitrin did not object to the admissibility of any of the materials attached to Ware’s memorandum. Consequently, these materials are properly before us.”). We take this opportunity to reaffirm the holding in Perry that a party must move the trial court to strike any evidence that violates Rule 56(e), Ala. R. Civ. P. An objection to the inadmissible evidence alone is not sufficient. The motion to strike brings the objection to the trial court’s attention and requires action on the part of the trial court to properly preserve the ruling on appeal.

In the instant case, Frank did object to the admissibility of the Hiatt affidavit and to the documents supporting that affidavit in his pleading titled “Response to Defendant’s Motion for Summary Judgement.” However, he did not move the trial court to strike the affidavit. Therefore, no ruling on the issue was invoked. Because Frank failed to move the trial court to strike the Hiatt affidavit and the unsworn, uncertified, and unauthenticated documents that accompanied that affidavit, he waived any objection on appeal regarding the trial court’s consideration of the affidavit and supporting documents. Accordingly, any issue regarding the admissibility of the Hiatt affidavit was not preserved for review by the Court of Civil Appeals and cannot stand as the basis for that court’s reversal of the trial court’s judgment.

V. Conclusion

The judgment of the Court of Civil Appeals is reversed, and the case is remanded to the Court of Civil Appeals for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WOODALL, STUART, MAIN, and WISE, JJ., concur.

PARKER, MURDOCK, and SHAW, JJ., dissent.

MURDOCK, Justice

(dissenting).

I respectfully dissent. A majority of the Court today concludes that a party’s otherwise adequate objection to evidence submitted in support of a motion for a summary judgment is not sufficient to preserve an issue for appellate review. Instead, the majority insists, the objecting party also is required to file with the trial court a motion to strike the allegedly objectionable evidence in order to preserve the objection. This additional requirement seems unnecessary and overly formalistic. It finds no support in the language of the Alabama Rules of Civil Procedure; it is not dictated by cases construing those rules; and, in fact, it is contrary to sound Alabama precedent and to the majority of analogous federal cases. Indeed, I believe this additional requirement serves no significant purpose other than creating an unnecessary trap for practitioners and, in turn, their clients.

First, nothing in the Alabama Rules of Civil Procedure requires the filing of a motion to strike evidence submitted in relation to a summary-judgment motion. The pertinent portion of Rule 56(e), Ala. R. Civ. P., simply states:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”

The rule does not specify how a party should bring to the trial court’s attention deficiencies in the supporting evidence offered by the opposing party. Given that the fact-finder on a motion for a summary judgment is the trial judge rather than a jury, I fail to see the need for a specific requirement that a party file a motion to strike such evidence when the party already has stated its objections to the evidence to the trial judge. What is the purpose of objecting to evidence presented to a judge if not to ask that judge not to consider it?

Indeed, requiring a motion to strike in order to preserve an otherwise adequate objection to submitted evidence conflicts with the purpose of the Alabama Rules of Civil Procedure. Rule 1(c), Ala. R. Civ. P., provides that “[tjhese rules shall be construed and administered to secure the just, speedy and inexpensive determination of every action.” The Committee Comments on 1973 Adoption to Rule 1(c) explain:

“It has been said that the policy of rules such as these is to disregard technicality and form in order that the civil rights of litigants may be asserted and tried on the merits. Mitchell v. White Consolidated, Inc., 177 F.2d 500 (7th Cir.1949), cert. denied 339 U.S. 913, 70 S.Ct. 574, 94 L.Ed. 1339. The last sentence of this rule, read in conjunction with Rules 8(f) [construction of pleadings] and 61 [harmless error], states a mandate of construction of the rules which is intended to implement that policy.”

(Emphasis added.) The approach adopted by the majority today, in my view, amounts to adding “technicality and form” where they are not necessary. A motion to strike is not necessary in order to inform the trial court of the ground for the objection, and it is not necessary in order to make clear what evidence the trial court was left to consider in the event it sustained that objection.

I have searched both the Alabama and federal cases for support for the majority’s approach. I have found no case that expressly grapples with the issue whether, in addition to an otherwise adequate objection, a motion to strike is necessary and that has held that such a motion is necessary. To the contrary, all the cases I have found in which a court has taken the time to expressly analyze the issue have concluded that a motion to strike is not necessary.

As the main opinion notes, there are several reported Alabama cases decided subsequent to this Court’s decision in Perry v. Mobile County, 533 So.2d 602 (Ala.1988), that suggest that a motion to strike is a requirement. None of these cases, however, expressly grapples with the issue before us today: whether a motion to strike must be added to an otherwise adequate objection in order to preserve an issue for appellate review. This is no doubt the case because, for all that appears from the opinions issued in these cases, there was no objection of any nature in the trial court to the evidence sought to be excluded. See, e.g., Ware v. Deutsche Bank Nat’l Trust Co., 75 So.3d 1163, 1171 (Ala.2011) (stating that the plaintiff “did not challenge this affidavit in the trial court,” thereby suggesting that no objection to the affidavit was made in the circuit court); SSC Selma Operating Co. v. Gordon, 56 So.3d 598, 603 (Ala.2010) (stating that the plaintiff neither made an objection to nor filed a motion to strike an arbitration agreement); Cartiuright v. Maitland, 30 So.3d 405, 409 (Ala.2009) (stating that “[t]he Maitlands did not specifically object in the trial court to the admission of Keith’s affidavit, nor did they move to strike it from the record” (emphasis added)); Elizabeth Homes, L.L.C. v. Cato, 968 So.2d 1, 5 (Ala.2007) (noting that the plaintiffs did not object or move to strike the unauthenticated document submitted in support of the affidavit); Ex parte Diversey Corp., 742 So.2d 1250, 1253 (Ala.1999) (noting that the defendant did not reply to the plaintiffs response to its motion for a summary judgment and thus no objection or motion to strike was filed regarding the allegedly problematic affidavit); and Berry Mountain Mining, Co. v. American Res. Ins. Co., 541 So.2d 4, 5 (Ala.1989) (stating that the defendant “failed to move to strike the unauthenticated documents” that supported the plaintiffs motion for a summary judgment and the Court therefore considered the documents as evidence; the Court also quoted from Perry the portion of Federal Practice and Procedure in issue; it is not clear from the facts whether the defendant objected in any form to the unauthenticated documents).

In any event, the suggestion in Alabama cases that have come after Perry that a motion to strike is necessary is a notion that is traceable to Perry. Like those subsequent cases, however, Perry itself did not involve an objection of any nature in the trial court. See 533 So.2d at 604 (stating that “no ruling on the matter was invoked” and that “[t]he issue of the admissibility of the evidence ... was raised ... for the first time on appeal”). Nor does Perry expressly consider whether, had such an objection been made, it would have been sufficient to preserve the issue. Instead, Perry stands as a source of this requirement in some cases simply because the Perry Court chose to quote the predecessor of the following passage from Federal Practice and Procedure:

“A party must move to strike an affidavit that violates Rule 56(e).51 The failure to do so will result in the waiver of the objection and, in the absence of ‘a gross miscarriage of justice,’52 the court may consider the defective affidavit. This principle applies to affidavits containing evidence that would not be admissible at trial,53 as well as to affidavits that are defective in form.54 The motion to strike must be timely,55 but the rules do not prescribe a specific period within which it should be made so the decision on that question is left to the discretion of the trial judge.56 On the other hand, it is clear that a motion to strike presented for the first time on appeal comes too late.57
“The court will disregard only the inadmissible portions of a challenged affidavit and consider the rest of it.58 ... It follows that a motion to strike should specify the objectionable portions of the affidavit and the grounds for each objection. A motion asserting only a general challenge to an affidavit will be ineffective.”

10B C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2738, at 372-77 (3d ed.1998) (emphasis added; text of footnotes omitted) (quoted in Perry as it read in 1983 edition, 533 So.2d at 604-05).

The problem with relying on Perry for the proposition at issue — aside from the fact that Perry itself did not involve any objection at all in the trial court and that the Court therefore found it unnecessary to, and did not, engage in any consideration of whether an objection would have been sufficient — is that none of the cases Federal Practice and Procedure cite for the proposition that “[a] party must move to strike an affidavit that violates Rule 56(e)” actually stand for that proposition. See Federal Practice and Procedure § 2738 n. 51. Many of them stand in fact for the contrary proposition, a fact to which I will return.

In the present case, the Court of Civil Appeals unanimously concluded that a motion to strike is not necessary where the objection otherwise interposed to the trial judge is adequate. That court’s opinion and Smith’s brief to this Court invoke this Court’s decision in Ex parte Elba General Hospital & Nursing Home, Inc., 828 So.2d 308 (Ala.2001). In Elba General, this Court clearly explained:

“On the question whether a trial court should consider a defective affidavit introduced in support of a motion for summary judgment and not objected to by the opposing party, we have consistently held that a failure to object constitutes a waiver of the right to object to the affidavit and that in the absence of an objection the trial court may properly consider such an affidavit, even if an objection alleging the particular defect would clearly have been proper. See Lennon v. Petersen, 624 So.2d 171 (Ala.1993); Cain v. Sheraton Perimeter Park S. Hotel, 592 So.2d 218 (Ala.1991); Morris v. Young, 585 So.2d 1374 (Ala.1991); Perry v. Mobile County, 533 So.2d 602 (Ala.1988). An objection need not be made in any particular form. See McMillian v. Wallis, 567 So.2d 1199, 1205 (Ala.1990) (holding that a party must ‘call the [trial] court’s attention’ to the fact that a deposition or affidavit is inadmissible and that by failing to do so a party waives any objection to the court’s considering the affidavit or deposition).”

Id. at 312-13 (emphasis added).

Although Smith does not expressly ask us to overrule Perry or those cases that have since quoted from or relied upon it, for the reasons previously discussed I find limited, if any, precedential value in Perry and those subsequent cases. What Smith does ask us to do is follow the rationale and holding in Ex parte Elba General Hospital. Given this argument by Smith, especially in the context of this Court’s obligation to exposit Alabama law correctly for future cases (not to mention the fact that our embrace of Smith’s argument will serve only to result in an affirmance of the court below), I see no reason why this Court should have any hesitation today to embrace the holding in Ex parte Elba General Hospital.

As I noted earlier, I have found no Alabama or federal case that, having expressly analyzed the issue, has reached the conclusion that a motion to strike must be added to an otherwise adequate objection in order to preserve that objection for appellate review. As already discussed, those Alabama cases that nonetheless contain verbiage to the effect that a motion to strike is required are, for all that appears, not cases in which an objection was made but there was no motion to strike. Moreover, at the end of the day, the questionable verbiage in all of those cases ultimately is traceable to Perry and its quotation of Federal Practice and Procedure. A discussion of Federal Practice and Procedure and applicable federal cases is set out below.

Turning first to those federal eases cited in note 51 of § 2788 of Federal Practice and Procedure for the proposition, as quoted in Perry, that “[a] party must move to strike an affidavit that violates Rule 56(e),” it is important to note that in many of those cases the opposing party did move to strike. Thus, whether an objection was sufficient absent a motion to strike was not in issue. See, e.g., Londrigan v. Federal Bureau of Investigation, 670 F.2d 1164, 1174 (D.C.Cir.1981); Servants of Paraclete, Inc. v. Great Am. Ins. Co., 866 F.Supp. 1560,1564 (D.N.M.1994); Johnson v. Scotty’s, Inc., 119 F.Supp.2d 1276, 1281 (M.D.Fla.2000); Canning v. Star Publ’g Co., 19 F.R.D. 281, 283 (D.Del.1956); and Ernst Seidelman Corp. v. Mollison, 10 F.R.D. 426, 427 (S.D.Ohio 1950). Moreover, in Lacey v. Lumber Mutual Fire Insurance Co. of Boston, 554 F.2d 1204, 1205 (1st Cir.1977), another case cited in note 51, the defendants made no objection or motion to strike the affidavit in the trial court. Thus, similar to the situation in Perry, in Lacey there was no occasion to consider whether an objection was sufficient to apprise the trial judge of alleged deficiencies in the opposition’s evidentiary support under Rule 56.

Moreover, the remaining cases cited in note 51 actually state that either an objection or a motion to strike is sufficient to preserve the issue. See Noblett v. General Elec. Credit Corp., 400 F.2d 442, 445 (10th Cir.1968) (stating that “[a]n affidavit that does not measure up to the standards of [Rule] 56(e) is subject to a motion to strike; and formal defects are waived in the absence of a motion or other objection” (emphasis added)); Auto Drive-Away Co. of Hialeah, Inc. v. I.C.C., 360 F.2d 446, 448-49 (5th Cir.1966) (observing that “the defendants failed to object to the introduction or use of the affidavit and exhibits below. An affidavit that does not measure up to the standards of Rule 56(e) is subject to a timely motion to strike. In the absence of this motion or other objection, formal defects in the affidavit ordinarily are waived.” (footnote omitted and emphasis added)); and United States ex rel. Austin v. Western Electric Co., 337 F.2d 568, 575 (9th Cir.1964) (relating that “[n]o objection was interposed to the use of this declaration at the hearing on the motion for summary judgment, and counsel for both parties referred to the declaration in their oral argument to the trial court. The declaration would have been subject to a motion to strike. Had appel-lees made such a motion or otherwise objected to the use of the declaration, the defect could have been remedied by appellants filing an affidavit in lieu of the declaration.” (emphasis added)).

Further still, in the extended discussion of this issue that follows note 51, Federal Practice and Procedure describes the decisions of several federal appellate courts that indicate that a proper objection is sufficient to preserve issues for appeal:

‘A failure to object to the admission of an affidavit that is objectionable under Rule 56 standards permits the court to consider the affidavit.... Becker v. Roza, D.C. Neb.1971, 53 F.R.D. 416....
“In Klingman v. National Indem. Co., C.A. 7th, 1963, 317 F.2d 850, 854, defendant objected to plaintiffs affidavit filed in opposition to the motion for summary judgment for failing to meet the personal knowledge requirement of Rule 56(e). The defendant did not contest the truth of the affidavit nor did he raise his objection in the district court. The court stated: ‘It is settled law that testimony to which no objection is made may be considered by the trier of fact. We conclude that analogous rule is applicable here. On a motion for summary judgment, if no objection is made to an affidavit which is objectionable under Rule 56(e), the affidavit may be considered by the court in ruling on the motion.’
“The nonmoving party waived the right to raise on appeal the issue whether an affidavit filed in support of a motion for summary judgment was timely when the nonmovant neither moved to strike the affidavit nor raised an objection to its consideration and similarly waived the issue whether an unsworn affidavit filed in support of the motion rendered the motion deficient by failing to make a timely objection in the district court. McCloud River R.R. Co. v. Sabine River Forest Prods., Inc., C.A. 5th, 1984, 735 F.2d 879.”

Federal Practice and Procedure § 2738 nn. 52, 53, and 55 (emphasis added).

The cases cited in Federal Practice and Procedure are not unusual in stating that an objection is sufficient to inform the trial judge that a supporting affidavit does not meet the requirements of Rule 56. Several other federal cases have expressed the same rule. The United States Court of Appeals for the First Circuit, in declining an invitation to adopt the exact wording of the passage from Federal Practice and Procedure quoted in Lacey, succinctly expressed the reasoning of these courts, explaining:

“We believe that what is required to preserve a party’s rights vis-a-vis an allegedly deficient affidavit is for the dissatisfied party to (a) apprise the trial court, in a conspicuous manner and in a timely fashion, that she considers the affidavit defective, and (b) spell out the nature of the ostensible defects clearly and distinctly. Whether the dissatisfied party fulfills these requirements by means of a motion to strike or in some substantially equivalent way (say, by an objection or, as here, in a legal memorandum urging the granting of summary judgment notwithstanding the affidavit) is of little moment.”

Perez v. Volvo Car Corp., 247 F.3d 303, 314 (1st Cir.2001) (emphasis added). See, e.g., Wiley v. United States, 20 F.3d 222, 226 (6th Cir.1994) (concluding that “[i]f a party fails to object before the district court to the affidavits or evidentiary materials submitted by the other party in support of its position on summary judgment, any objections to the district court’s consideration of such materials are deemed to have been waived, and we will review such objections only to avoid a gross miscarriage of justice” (emphasis added)); Williams v. Evangelical Ret. Homes of Greater St. Louis, 594 F.2d 701, 703 (8th Cir.1979) (recounting that “[t]he general rule is that defects in the form of the affidavits are waived if not objected to at the trial court level. Absent a motion to strike or other timely objection, the trial court may consider a document which fails to conform to the formal requirements of Rule 56(e).” (emphasis added)); Scharf v. United States Attorney General, 597 F.2d 1240, 1243 (9th Cir.1979) (noting that, “[generally, ... formal defects [in an affidavit] are waived absent a motion to strike or other objection, neither of which occurred here” (emphasis added)); Associated Press v. Cook, 513 F.2d 1300, 1303 (10th Cir.1975) (“[t]he record does not disclose that Cook filed a motion to strike or otherwise objected to the affidavits [based on the lack of personal knowledge]. Under these circumstances any formal defects contained in the affidavits are deemed to be waived and the trial court may consider them in ruling on the summary judgment motions.” (emphasis added)); Klingman v. National Indem. Co., 317 F.2d 850, 854 (7th Cir.1963) (stating that, “[o]n a motion for summary judgment, if no objection is made to an affidavit which is objectionable under Rule 56(e), the affidavit may be considered by the court in ruling on the motion” (emphasis added)); and Interstate Gov’t Contractors, Inc. v. Johnson Controls, Inc., 186 F.R.D. 694, 697 (M.D.Ga.1999) (rejecting the plaintiffs affidavit presented in opposition to summary judgment “for failing to comply with Rule 56(e)” when the objection to the affidavit was made by the defendant in .its reply brief).

When objections are made to evidence other than affidavits, the authorities are equally, if not more, clear that a motion to strike is unnecessary. Indeed, Federal Practice and Procedure itself simply states that “uncertified or otherwise inadmissible documents may be considered by the court [on a motion for a summary judgment] if not challenged. The objection must be timely or it will be deemed to have been waived.” 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2722, at 384-85 (3d ed. 1998) (emphasis added). See, e.g., MSK EyEs Ltd. v. Wells Fargo Bank, Nat’l Ass’n, 546 F.3d 533, 543 n. 6 (8th Cir.2008) (“We note unsworn statements are ordinarily inadmissible hearsay and do not constitute competent evidence that can be considered under Fed.R.Civ.P. 56(e). However, ‘otherwise inadmissible documents may be considered by the court if not challenged.’ ” (quoting Federal Practice and Procedure § 2722)(emphasis added)); In re Unisys Savs. Plan Litig., 74 F.3d 420, 437 n. 12 (3d Cir.1996) (“Unisys argues that we may not consider Mr. Gottheimer’s report because it was not in the form of a sworn affidavit as required by the Fed. R.Civ.P. 56(e). Unisys, however, did not move to strike nor did it otherwise object to Dr. Gottheimer’s report in the district court.” (emphasis added)); H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 455 (2d Cir.1991) (finding that an “objection” to unauthenticated documents in support of a motion for a summary judgment was not made in the district court and therefore it came too late); Capobianco v. City of New York, 422 F.3d 47, 55 (2d Cir.2005) (finding that district court abused its discretion in concluding that reports submitted in opposition to a motion for a summary judgment were “ ‘inadmissible as unsworn statements’ ” because “neither side objected to the admissibility of the reports” (emphasis added)); Catrett v. Johns-Manville Sales Corp., 826 F.2d 33, 37-38 (D.C.Cir.1987) (quoting Federdl Practice and Procedure for the proposition that “ ‘inadmissible documents may be considered by the court if not challenged’ ”); Burnett v. Stagner Hotel Courts, Inc., 821 F.Supp. 678, 683 n. 2 (N.D.Ga.1993), aff d, 42 F.3d 645 (11th Cir. 1994) (finding that plaintiffs’ exhibit failed to meet the requirements of Rule 56(e), after the defendant had challenged the exhibit in its reply brief); and Cinocca v. Baxter Labs., Inc., 400 F.Supp. 527, 530 (E.D.Okla.1975) (explaining that “[t]he materials submitted by Travenol in support of its Motion are not verified by affidavit. However, as Plaintiff has not objected to this defect and treats the Agreement as the true and correct contract for acquisition of substantially all assets as entered into by Travenol and Surgitool the Court will consider the Agreement for purposes of this Motion.” (emphasis added)).

The number of federal cases stating that an objection is sufficient is not surprising, given that before Rule 56, Fed.R.Civ.P., was amended in December 2010, there was a split in the federal circuits regarding whether a motion to strike was even appropriate outside the context of objections to pleadings under Rule 12(f), Fed. R.Civ.P. As one treatise has observed, “[pjrior to the 2010 Amendments [to the Federal Rules of Civil Procedure], the courts were ... divided as to whether an improper affidavit could be challenged on a motion to strike.” Steven Baicker-McKee, William M. Janssen & John B. Corr, Federal Civil Rules Handbook 2012 1135-36 (2012). The reason was that, as one court explained, “neither the text of Rule 56 nor of Rule 12(f) authorizes use of motions to strike for th[e] purpose” of striking evidence in support of a motion because “Rule 12(f) read literally only provides for motions to strike directed at ‘pleadings,’ which an affidavit is not ... and Rule 12’s focus on ‘redundant, immaterial,] impertinent or scandalous matter’ does not appear germane to the purpose of [a party’s] Motion to Strike incompetent or inconsistent affidavit averments.” Dragon v. I.C. Sys., Inc., 241 F.R.D. 424, 425 (D.Conn.2007). The plaintiff in Dragon had argued to the court that “the Second Circuit actually requires a motion to strike affidavits defective under Rule 56(e) to avoid waiver of the issue,” but the court rejected that argument, observing that in the cases cited by the plaintiff “no objection had been made below by any means — in briefings or a motion to strike — to the form of the unsworn written statements attached to the party’s sworn affidavit.” 241 F.R.D. at 426 n. 2. See also, e.g., Pilgrim v. Trustees of Tufts Coll., 118 F.3d 864, 868 (1st Cir.1997), abrogation on other grounds recognized in Crowley v. L.L. Bean, Inc., 303 F.3d 387, 406 (1st Cir.2002) (stating that “Rule 12(f) applies only to pleadings and has no applicability to motions made in pursuit of or in opposition to summary judgment”).

In sum, consideration of the text and purposes of state and federal rules of procedure and of Alabama and federal cases leads me to conclude that the law does not require, and there is no sound reason that it should require, a motion to strike in addition to an otherwise properly made and preserved objection to evidence submitted in relation to a motion for a summary judgment. When a proper objection is made and preserved in the record, the trial court will be given adequate opportunity to consider the objection and the appellate court will be adequately informed of the basis for the objection. If and to the extent the objection is sustained, we may and should assume, without requiring the “technicality and form” of an additional motion to strike, that the trial court did not consider the objected-to evidence. To the extent the trial court overrules an objection, we may assume the converse. Again, requiring more serves only to create an unnecessary trap for the practitioner and, in turn, his or her client. I believe that the Court of Civil Appeals has the correct, and more commonsensical, view of this issue, and I therefore would affirm its judgment.

PARKER and SHAW, JJ., concur.

      . The Secretary also named Frank's wife, Juliet Smith, in the action. However, she was never served.

      . Rule 56(e), Ala. R. Civ. P., provides, in pertinent part:
      "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith."

      . Generally, a written motion to strike would be required. However, if a hearing on the summary-judgment motion were transcribed or if the trial court's order reflected that an oral motion to strike was made, then an oral motion would be sufficient.

      . The Court in SSC Selma Operating Co. stated that "even if Mrs. Gordon had objected to the admissibility of the copy of the arbitration agreement, it is undisputed that Mrs. Gordon did not file a motion to strike the arbitration agreement. Therefore, we will consider the evidence.” 56 So.3d at 603. The Court also stated, however, that Gordon "did not argue that the copy of the arbitration agreement attached to the motion was not admissible.” Thus, the case represents the circumstance where a party neither makes an objection to, nor moves to strike, objectionable evidence. Moreover, the Court’s opinion quoted Elizabeth Homes, L.L.C. v. Cato, 968 So.2d 1, 5 (Ala.2007), for the proposition that a motion to strike is required; Cato is a case in which no objection or motion to strike was filed.

      . The 1983 edition of this passage as quoted in Perry is no different in any material respect from the current version set out in the text of this writing.

        . The Lacey court quoted the same passage from § 2738 of Federal Practice and Procedure as did the Perry Court.

      . Rule 12(f), Fed.R.Civ.P., provides that a
      "court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:
      "(1) on its own; or
      "(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.”
      Rule 12(f), Ala. R. Civ. P., is similar and reads as follows:
      "Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within thirty (30) days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”

      . The recently amended version of Federal Rule 56 and the Advisory Committee Note to it now make clear that a motion to strike is not desired, at least for certain objections. Rule 56(c)(2), Fed.R.Civ.P., states that "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” The Advisory Committee Note to this subsection expressly states that "[tjhere is no need to make a separate motion to strike” in order to effectuate such an objection.


source: Caselaw Access Project

author: PER CURIAM. BRYAN, Judge,

license: Public Domain

text:
    Frank S. SMITH, Jr. v. SECRETARY OF VETERANS AFFAIRS, an officer of the United States of America.
    2100194.
    Court of Civil Appeals of Alabama.
    March 30, 2012.
    Matthew Kinder, Fultondale, for appellant.
    John T. Bender, Mobile, for appellee.
   After Remand from the Alabama Supreme Court

PER CURIAM.

The Alabama Supreme Court (1) has reversed the prior judgment of this court, Smith v. Secretary of Veterans Affairs, 92 So.3d 766 (Ala.Civ.App.2011), which reversed the judgment of the Jefferson Circuit Court, Bessemer Division, and (2) has remanded the cause for further proceedings consistent with its opinion. See Ex parte Secretary of Veterans Affairs, 92 So.3d 771 (Ala.2012). We now address an argument of Frank S, Smith, Jr. (“Frank”), that we did not reach in our prior decision.

Frank argues that the trial court erred in entering a summary judgment in favor of the Secretary of Veterans Affairs, an officer of the United States of America (“the Secretary”), because, Frank says, the evidence before the trial court established a genuine issue of material fact regarding the identity of the party who sold his property at the foreclosure sale. The Secretary supported his summary-judgment motion with, among other things, an affidavit signed by Scott Hiatt, a copy of the promissory note signed by Frank, a copy of the mortgage signed by Frank, copies of three subsequent assignments of the mortgagee’s interest in the mortgage, a copy of an affidavit signed by the publisher of the Alabama Messenger, the newspaper in which notice of the foreclosure sale was published, and a copy of the foreclosure deed. Hiatt’s affidavit states that “Plaintiff, Bank of America, N.A.,” sold Frank’s property at the foreclosure sale. On the other hand, the copy of the notice of the foreclosure sale that was published in the Alabama Messenger, which was included with the affidavit signed by the publisher of the Alabama Messenger, states that the Secretary would be selling Frank’s property at the foreclosure sale. Likewise, the foreclosure deed states that Dana Wright McGowin, the auctioneer who conducted the foreclosure sale, sold Frank’s property at the foreclosure sale on behalf of the Secretary. The three assignments of the mortgagee’s interest in the mortgage consist of an assignment from Franklin American Mortgage Company (“Franklin American”) to North American Mortgage Company (“North American”); an assignment from North American to Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for PNC Mortgage Corp. of America (“PNC”); and an assignment from MERS, as nominee for PNC, to the Secretary. The promissory note signed by Frank indicates that Franklin American signed an indorsement making the promissory note payable to the order of North American; that North American signed an indorsement making the promissory note payable to the order of MERS, as nominee for PNC; and that MERS, as nominee for PNC, signed an indorsement making the promissory note payable to the order of the Secretary. The record does not contain any evidence indicating that Bank of America, N.A., was ever the owner of the mortgagee’s interest in the mortgage or the owner of the debt secured by the mortgage. See Coleman v. BAC Servicing, [Ms. 2100453, Feb. 3, 2012] (Ala.Civ.App.2012) (holding that the power of sale in a mortgage may be executed by any person who owns the debt even if he or she has not been assigned the mortgagee’s interest in the mortgage securing the debt). Moreover, the record does not contain any evidence indicating that Bank of America, N.A., was authorized to act as an agent for the Secretary in selling Frank’s property at the foreclosure sale. Thus, Hiatt’s affidavit stating that Bank of America, N.A., sold Frank’s property at the foreclosure sale is in conflict with the notice of the foreclosure sale and the auctioneer’s deed and creates a genuine issue of material fact regarding whether it was Bank of America, N.A., or the Secretary who sold Frank’s property at. the foreclosure sale. Moreover, because there is substantial evidence tending to prove that Bank of America, N.A., did not have the authority to sell Frank’s property at the foreclosure sale either on its own behalf or on behalf of the Secretary, Hiatt’s statement that Bank of America, N.A., sold Frank’s property at the foreclosure sale creates a genuine issue of material fact regarding whether Frank’s property was sold at the foreclosure sale by a party who had the authority to do so. Furthermore, because the evidence creates a genuine issue of material fact regarding whether Frank’s property was sold at the foreclosure sale by a party who had the authority to do so, that evidence also creates a genuine issue of material fact regarding whether the Secretary, who bases his claim to title to Frank’s property on the foreclosure deed, has standing to bring this ejectment action. See Sturdivant v. BAC Home Loans Servicing, LP, [Ms. 2100245, Dec. 16, 2011] — So.3d —, — (Ala.Civ.App.2011) (holding that an ejectment-action plaintiff that based its claim to title to the property on a foreclosure deed lacked standing to bring the ejectment action because the evidence indicated that the party who initiated the foreclosure proceedings lacked authority to initiate them on the date it did so).

Although Frank did not argue to the trial court that Hiatt’s statement that Bank of America, N.A., sold the property at the foreclosure sale established the existence of a genuine issue of material fact regarding whether the foreclosure was valid, “[t]he issue of a lack of standing may not be waived, and an argument concerning standing may be asserted for the first time on appeal.” Sturdivant, — So.3d at — (citing RLI Ins. Co. v. MLK Ave. Redev. Corp., 925 So.2d 914, 918 (Ala.2005)).

Accordingly, we reverse the judgment of the trial court and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

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

BRYAN, Judge,

dissenting.

Consistent with my dissent in Sturdivant v. BAC Home Loans Servicing, LP, [Ms. 2100245, Dec. 16, 2011] — So.3d —, — (Ala.Civ.App.2011), I am of the opinion that the existence of a genuine issue of material fact regarding whether the foreclosure sale was conducted by a ■party who had authority to do so establishes a genuine issue of material fact regarding the affirmative defense asserted by Frank Smith, Jr. (“Frank”), that the Secretary of Veterans Affairs, an officer of the United States of America (“the Secretary”), is not entitled to prevail on his ejectment claim because the foreclosure was not valid, but it does not implicate the Secretary’s standing to bring this ejectment action. See Berry v. Deutsche Bank Nat’l Trust Co., 57 So.3d 142, 149-50 (Ala.Civ.App.2010) (holding that, when an ejectment-action plaintiff bases his or her claim to legal title on a foreclosure deed, evidence tending to prove that the foreclosure sale and resulting foreclosure deed were invalid tends to prove an affirmative defense to the ejectment claim rather than tending to prove that the ejectment-action plaintiff lacked standing to bring the ejectment action). Because, in my opinion, the argument upon which the main opinion bases its reversal of the trial court’s judgment does not implicate the Secretary’s standing, and because Frank did not present that argument to the trial court, I dissent from the main opinion because it bases its reversal of the trial court’s judgment on an argument that Frank waived by failing to present it to the trial court. See Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000) (“[T]he appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment. Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992).”).

PITTMAN, J., concurs.

      . The factual background of this case and its procedural history in the trial court are recited in our original decision. See Smith v. Secretary of Veterans Affairs, supra.

       Note from the reporter of decisions: On June 22, 2012, the Court of Civil Appeals withdrew the February 3, 2012, opinion in Coleman and substituted another one. See Coleman v. BAC Servicing, [Ms. 2100453, June 22, 2012] — So.3d — (Ala.Civ.App.2012).


author: THOMPSON, Presiding Judge.

text:
    June THACKSTON, Derold Thackston, and Charles Jacob “Jake” Thackston v. Angie Pinkard KEY.
    2110063.
    Court of Civil Appeals of Alabama.
    March 23, 2012.

      John A. Tinney, Roanoke, for appellants.
    Russell T. Emrick of Emrick & Associates, P.C., Heflin, for appellee.
   THOMPSON, Presiding Judge.

June Thackston, Derold Thackston, and Charles Jacob “Jake” Thackston (collectively, “the defendants”) appeal from the judgment of the Randolph Circuit Court awarding Angie Pinkard Key $29,000 or an equivalent value of certain personal property. For the reasons stated herein, we reverse the trial court’s judgment and remand the cause for the entry of a new judgment.

June Thackston (“June”) and Will Thackston (“Will”) are the parents of De-rold Thackston (“Derold”) and Charles Jacob “Jake” Thackston (“Jake”). In 1985, June and Will incorporated a business, Thackston and Sons Construction Company, Inc. (“Thackston and Sons”), in Georgia. At the time they incorporated Thack-ston and Sons, June and Will each owned one-half of the stock in the company.

In July 2009, June filed an action for a divorce from Will in the Randolph Circuit Court. On September 29, 2009, the trial court in that action entered a pendente lite order providing, among other things, that Will was to have sole control .over the day-to-day operation of Thackston and Sons.

In February 2010, while the divorce action was pending, Will filed for personal bankruptcy in the United States Bankruptcy Court for the Middle District of Alabama. As part of his bankruptcy proceeding, Will provided a list of personal property (“the asset list”) to the bankruptcy trustee that included a substantial number of items, such as vehicles and tools, that were purchased and used by Thack-ston and Sons. The asset list did not include any stock in Thackston and Sons. June, although she had not filed for bankruptcy, attended the hearings in Will’s bankruptcy case. Will testified at the trial in the present action that he stopped operating Thackston and Sons in February 2010, at the time he filed for bankruptcy.

In July 2010, the bankruptcy court entered an order permitting the bankruptcy trustee to sell the property included on the asset list. The trustee did so, selling all of Will’s interest in the assets included on the asset list to Angie Pinkard Key on August 5, 2010, for $29,000. The bill of sale indicated that the sale was “made without any representations or warrantees] of any kind” and that Key was “solely responsible for retrieving and verifying [Willi’s interest in each said item of personalty.”

On August 26, 2010, Key filed the present action against the defendants. The essence of her action was one in detinue, seeking possession of the assets she alleged she had bought from the bankruptcy trustee, which she alleged were in the defendants’ possession. The defendants filed a counterclaim against Key in which they sought the return of property that they alleged was in Key’s possession.

On September 9, 2010, the Georgia Secretary of State issued a certificate indicating that, as of that day, Thackston and Sons had been administratively dissolved or had had its certificate of authority revoked because it had failed to file its annual registration with the State of Georgia.

On December 21, 2010, the trial court in the divorce action entered a final judgment based on a settlement agreement that June and Will had reached. That settlement agreement, which was incorporated into the divorce judgment, provided, among other things, that the parties acknowledged that June was and, since the early 1990s, had been the owner of all the stock in Thackston and Sons. The agreement provided that all the assets of Thack-ston and Sons would continue to be the property of Thackston and Sons and that June, as the owner of Thackston and Sons, would effectively own the assets of the company.

On February 3 and April 13, 2011, the trial court held a bench trial in the present action at which it received ore tenus testimony. Will testified at first that June’s and his respective half ownerships in Thackston and Sons had never changed. However, he later testified that, at some point, their ownership interests changed so that Thackston and Sons could qualify for certain construction contracts associated with the 1996 Olympic Summer Games held in Atlanta, Georgia. Consistent with the latter testimony, portions of several of Thackston and Sons’ tax returns were introduced into evidence, one as early as 1992, reflecting that June owned 100% of the stock of the company. June testified as well that she had owned all the stock in Thackston and Sons since 1992.

During the trial, numerous documents were introduced into evidence indicating that a substantial number of the items included on the asset list were titled in Thackston and Sons, had been depreciated by Thackston and Sons on its tax returns, and had been insured by Thackston and Sons. Other documents introduced into evidence indicated that title to other assets listed by Will on the asset list had been conveyed to the defendants personally or to other individuals before Will filed for bankruptcy.

During the trial, the defendants indicated that four of the vehicles listed on the asset list were titled in Will’s name, not in the name of Thackston and Sons. The defendants stated that they did not claim ownership of those vehicles, and they delivered the titles to those vehicles to Key in open court.

On June 23, 2011, the trial court entered a final judgment, which provided, in pertinent part:

“This matter involves the transfer of assets from Will Thackston to [Key] via a Bankruptcy Trustee’s Bill of Sale. The bill of sale gives general descriptions of various items of property. No specific description or identification numbers are provided. The Court, therefore, must determine what Will Thackston legally owned at the time that the bill of sale was executed. The Court has found this to be impossible. Mr. Thackston was a joint owner of Thack-ston & Sons Construction. This status was never legally changed. Many items were owned by this Company.
“The matter that is undisputed is that [Key] paid $29,000 for Mr. Thackston’s interest in items listed on the bill of sale. [June] has possession of most of these items. [June] claims that these items are hers. The Court must do equity in order to prevent [Key], as a bona fide third party purchaser for value, from being deprived of any benefit from her purchase.
“It is therefore ordered, adjudged, and decreed that judgment be entered in favor of [Key] and against [June] for the sum of twenty-nine thousand dollars and no/100 ($29,000.00). This judgment may be satisfied by the payment of said sum or by the transfer of that value of assets from [June] to [Key].”

The trial court’s judgment also denied all other requested relief, thus disposing of Key’s claims against Derold and Jake and the defendants’ counterclaim against Key. June filed a postjudgment motion, which was denied by operation of law. See Rule 59.1, Ala. R. Civ. P. The defendants appeal.

The defendants contend that the trial court’s findings of fact do not support its judgment awarding Key $29,000. Specifically, they argue that the trial court’s finding that it was impossible to determine what property on the asset list Will owned at the time the trustee issued the bill of sale precluded it from awarding Key $29,000 on the basis of what she paid for any interest Will might have had in that property.

“In Alabama, ‘[i]t is elementary that the gist of [a detinue action] is the wrongful detention. It is also elementary that the plaintiff must have the right to the possession of the chattel at the commencement of the suit, in order to recover.’ ” Bruner v. Geneva Cnty. Forestry Dep’t, 865 So.2d 1167, 1174 (Ala.2003) (quoting Jesse French Piano & Organ Co. v. Bradley, 138 Ala. 177, 180, 35 So. 44, 44 (1902)) (emphasis omitted). Thus, “the plaintiff has the burden of proof [in a detinue action] to show that the plaintiff had legal title to the property or right to possession at the time of the action and that the defendant had wrongfully taken possession of the property.” Heathcock v. Hadley, 380 So.2d 915, 916 (Ala.Civ.App.1980). See also Murray v. Dempsey, 521 So.2d 1345, 1345-46 (Ala.Civ.App.1988) (claimant in detinue case bears burden of proof).

In the present case, the trial court found that it was impossible to determine from the evidence presented what if any property on the asset list was actually owned by Will such that it was subject to being conveyed by the bankruptcy trustee to Key. No party has directly challenged that finding on appeal. It was Key’s burden to prove that she had legal title to the property she was claiming in her action; her failure to do so precluded her from recovering that property.

Of course, the trial court did not award Key any particular property, as she had sought. Instead, as noted, it required June to pay Key $29,000, the amount that Key had paid the bankruptcy trustee. Because the trial court could not conclude from the evidence that Key had legal title to the property contained on the asset list, there was no basis for the trial court to require that June pay Key any amount, let alone the full amount of what Key had paid to the trustee. The trial court’s conclusion that it was impossible to discern what, if any, property on the asset list Key owned means that there has been no finding that June is in possession of any item of property in which Key has established she has legal ownership. In the absence of such a determination, there is simply no basis to require that June make any payment to Key.

We recognize that the trial court found that Key was a “bona fide third party purchaser for value” of the items contained on the asset list. However, we have failed to uncover any legal authority, and Key has not cited any in her appellate brief, indicating that Key’s occupying such a status would entitle her to a refund of what she paid for those items from someone other than the person to whom she made that payment.

We are not unsympathetic to the circumstances in which Key finds herself. She has paid $29,000 for Will’s interest in certain property only to be unable to prove that Will had any interest in that property. However, to recover possession of that property, she bore the burden of proof on the issue of Will’s, and by extension her, ownership interest, and, having been unable to convince the trial court of that interest, she was not entitled to the relief that she sought.

Based on the foregoing, we conclude that the trial court erred to reversal when it entered a judgment against June in the amount of $29,000. We therefore reverse the trial, court’s judgment, and we remand the cause for the entry of a new judgment consistent with this opinion.

REVERSED AND REMANDED.

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

      . Because we conclude that the trial court’s finding that Key was a bona fide purchaser for value of the property listed on the asset list is ultimately irrelevant to our disposition of this appeal, we pretermit consideration of the defendants’ contention that the evidence did not support that finding.

      . We note that the defendants have not raised an issue in their appellate brief as to the propriety of the trial court’s judgment insofar as the judgment denied them any relief pursuant to their counterclaim against Key.


author: MOORE, Judge.

text:
    Barry V. FREDERICK v. Shelia FREDERICK.
    2101144.
    Court of Civil Appeals of Alabama.
    March 23, 2012.

      Barry V. Frederick of The Frederick Firm, Birmingham, for appellant.
    Scott A. Gilliland, Birmingham, for ap-pellee.
   MOORE, Judge.

Barry V. Frederick (“the former husband”) appeals from a judgment of the Jefferson Circuit Court (“the trial court”) finding that Shelia Frederick (“the former wife”) was not in contempt and ordering the former husband to pay the former wife $3,220 as attorney fees. We affirm in part and reverse in part.

Background

The parties were married in 1978. In September 1994, the former husband filed a complaint seeking a divorce; in that complaint, he alleged that he and the. former wife had ceased living as husband and wife as of June 1994 but that they had continued to reside together after that time. The trial court entered a judgment of divorce on April 19, 1996. The trial court incorporated into that judgment the parties’ stipulated settlement agreement; that agreement contained, among other things, the following provision, identified as subparagraph ’6.a.(4), which set forth the manner in which the parties were to divide their personal property:

“(4) Wife shall receive the drapes, washer, dryer, dishwasher, and refrigerator in the residence. Husband shall receive the entertainment center in the den.
“It is the intent of the parties that all other household furniture, furnishings, and other household items (including, but not limited to, bed linens, sheets, towels, dishes, glasses, pots and pans, etc.) be divided equally between them with the exception of the child’s furniture which shall be retained by Wife. To carry out the terms of this paragraph, each party shall make a list of those items he or she wants. After compiling the lists, any items remaining in dispute shall be selected by the parties with alternate selections with the Wife selecting first followed by Husband, and so forth until all items have been divided. In the event a dispute shall arise, the parties agree that Judge John Bryan shall serve as mediator to effectuate the intent of this paragraph. Husband shall be responsible for his fee.”

In July 1997, the former wife filed a petition for a rule nisi seeking a finding of contempt against the former husband on the ground that the former husband had failed to comply with numerous provisions of the divorce judgment; that action was docketed as case no. DR-94-3189.01. The former husband answered the petition and filed a counterclaim in which he alleged that the former wife was in contempt for failing to comply with subparagraph 6.a.(4) of the divorce judgment.

Those competing contempt petitions resulted in the entry of a “Consent Order,” entered on January 26, 1999, in which the trial court found that neither party was in contempt. In the 1999 consent order, the trial court specifically addressed, among other things, subparagraph 6.a.(4) of the divorce judgment. The trial court specifically reaffirmed subparagraph 6.a.(4) and identified a specific date for the parties to conduct an inventory of their personal property, whether located at the former husband’s residence or the former wife’s residence, and identified a specific date for the parties to exchange a list of the personal property each wished to receive.

In 2007, the former husband initiated a civil action in the trial court against the former wife, alleging conversion and unjust enrichment as a result of the former wife’s alleged failure to comply with the provisions regarding the division of personal property set forth in the divorce judgment and the 1999 consent order; the former husband also sought an accounting of the personal property from the marriage. That action was designated as case no. CV-07-902727. In 2008, the trial court entered a summary judgment in favor of the former wife on the former husband’s claims of conversion and unjust enrichment because the former husband could not establish essential elements of his claims of conversion and unjust enrichment — namely, that the former wife had illegally assumed ownership or use of property belonging to the former husband or that the former wife had no right to the use of the personal property in her possession. The trial court ordered the former wife to provide an accounting of the personal property, and after the former wife provided a list identifying the personal property from the marital estate that had remained in her possession and the personal property that the former husband had removed from the marital residence, the trial court, on September 12, 2008, found that the action was concluded.

The former husband then initiated this action, designated as case no. DR-94-3189.02, on May 21, 2010, seeking to hold the former wife in contempt for her alleged failure to comply with sub-paragraph 6.a.(4) of the divorce judgment and with the trial court’s 1999 consent order. The former wife answered the contempt petition, generally denying the former husband’s allegations. The former wife requested that the trial court dismiss the action and award her attorney fees.

The trial court conducted an ore tenus hearing on April 13, 2011. On May 10, 2011, the trial court entered its judgment finding that the former wife was not in contempt for failing to comply with sub-paragraph 6.a.(4) and the 1999 consent order. The trial court also ordered the former husband to pay $3,220 to the former wife as attorney fees.

The former husband filed a motion to alter, amend, or vacate the trial court’s judgment or, alternatively, for a new trial; the trial court denied that motion. The former husband timely filed his notice of appeal.

Analysis

The former husband challenges the trial court’s award of attorney fees, the trial court’s decision to allow the former wife’s counsel to ask leading questions of the former wife on cross-examination, and the trial court’s finding that the former wife was not in contempt. We address those issues out of order.

We first address the former husband’s challenge to the trial court’s ruling that the former wife’s counsel was entitled to ask leading questions of her own client because the former wife had been called to testify by the former husband. The former husband asserts that, because the former wife’s counsel was allowed to ask the former wife leading questions, the former wife’s counsel was able to simply feed the former wife the answers she wished to obtain, thus prejudicing him to the point of reversible error. We disagree.

Rule 611(c), Ala. R. Evid., provides, in pertinent part, that “[Heading questions are permitted on cross-examination.” That principle has been recognized and applied in cases so numerous that supporting citations are unnecessary. The Advisory Committee’s Notes to Rule 611 state, in pertinent part, that, “[ujnder Rule 611(c), leading questions should always be permitted on cross-examination.” Further, “ ‘the trial court has broad discretion in evidentiary matters.’ ” Blakley v. Johnson, 80 So.3d 250, 260 (Ala.Civ.App.2010) (quoting Bush v. Alabama Farm Bureau Mut. Cas. Ins. Co., 576 So.2d 175, 177 (Ala.1991)).

Our supreme court has addressed the exact issue raised by the former husband. In Newman v. Bankers Fidelity Life Insurance Co., 628 So.2d 439 (Ala.1993), Ma-die Newman appealed from an adverse judgment entered in favor of Bankers Fidelity Life Insurance Company. On appeal, Newman argued, among other things, that the trial court had erred in allowing Bankers Fidelity’s lawyer to cross-examine the president of that insurance company, 1.e., the corporate representative of the lawyer’s client, by the use of leading questions. Id. at 443. The supreme court stated: “Newman called Eugene Choate, the president [of the insurance company] and its representative at the defendants’ table during trial, as an adverse witness on direct examination.” Id. at 442. After noting that evidentiary matters are within the sound discretion of the trial judge and that Rule 43(b), Ala. R. Civ. P., allows the use of leading questions on cross-examination, the supreme court summarily affirmed the trial court’s ruling. Id. at 442-43. Thus, our supreme court sanctioned a lawyer’s use of leading questions when cross-examining his or her own client when that client was called as a witness by the other party.

The former husband argues that Newman, supra, is distinguishable from the instant case because, in that case, the supreme court relied on subdivision (b) of Rule 43, Ala. R. Civ. P., which subdivision has since been omitted from that rule; because, in Newman, our supreme court did not discuss the extent of the cross-examination that had occurred in that case; and because the supreme court’s decision contains no indication that Newman argued against application of the general rule. We reject those arguments.

Although subdivision (b) of Rule 43, Ala. R. Civ. P., has been omitted from the Alabama Rules of Civil Procedure, the Committee Comments to the January 1, 1996, Amendment of Rule 43 provide, in pertinent part:

‘Subdivision (b). The subdivision is no longer needed or appropriate since the matters with which it dealt are treated in the Rules of Evidence. The use of leading questions, both generally and in the interrogation of an adverse party or witness identified with him, is the subject of Evidence Rule 611(c)....’”

Thus, Rule 43(b) was omitted from the Alabama Rules of Civil Procedure because Rule 611(c), Ala. R. Evid., covers the same issue and is deemed to have negated the need for, and to have replaced, Rule 43(b). As noted above, Rule 611(c) specifically allows the use of leading questions on cross-examination.

We further note that, as an intermediate appellate court, we are bound by the holdings of our supreme court. See, e.g., Kanellis v. Pacific Indem. Co., 917 So.2d 149, 154 (Ala.Civ.App.2005). Because our supreme court addressed the precise situation before us in Newman, supra, and approved the use of leading questions in the same manner allowed by the trial court in this case, we find no reversible error on this issue.

The former husband next argues that the trial court erred in failing to find the former wife in contempt for her alleged failure to comply with subparagraph 6.a.(4) of the divorce judgment and the 1999 consent order. The former husband argues that the trial court was required to find the former wife in contempt of court because, he says, the former wife admitted during her testimony that she had canceled the court-ordered inventory and had not rescheduled that inventory. As support for his argument, the former husband relies on Hood v. Hood, 76 So.3d 824, 831 (Ala.Civ.App.2011) (“ ‘ “ ‘The failure to perform an act required by the court for the benefit of an opposing party constitutes civil contempt.’ ” ’ ” (quoting Reed v. Dyas, 28 So.3d 6, 8 (Ala.Civ.App.2009), quoting in turn other cases)).

However, “whether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm.” Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994). Thus, we review the evidence to determine if the trial court’s finding, i.e., that the former wife was not guilty of contempt, is so unsupported by the evidence as to be plainly and palpably wrong. We construe the evidence most favorably to the former wife, the prevailing party, as we are required to do on appeal from a judgment based on ore tenus proceedings. See Driver v. Hice, 618 So.2d 129,131 (Ala.Civ.App.1993).

The trial court heard testimony from the former wife that, in April 1996, the former husband removed furniture and other items of personal property from the marital residence without the former wife’s knowledge or acquiescence. The former wife testified that she had had no prior knowledge that he had planned to remove those items. The former wife also testified that she prepared a list of the personal property remaining in her possession and that she indicated her first selection from that list, which, the former wife testified, she believed was in accord with subpara-graph 6.a.(4). The former wife testified that she then provided that list to her lawyer and that it was her understanding that her list was then provided to the former husband’s legal counsel. The former wife, who by the time of this action was no longer represented by the same lawyer, testified that, due to the passage of time, she did not have that list available to her.

The former wife testified that she had received from the former husband a list he had prepared in order to comply with sub-paragraph 6.a.(4); the former wife submitted into evidence a copy of that list. The former husband’s list stated: “All furniture and furnishings. Barry V. Frederick.” The former wife testified that she could not proceed with the selection process set out in subparagraph 6.a.(4) or the 1999 consent order in light of the former husband’s “list” and his selection of “all” of their personal property. She also testified that the former husband had taken the items he had wanted from the marital residence when he abruptly left in April 1996 rather than making a list and attempting to divide the personal property with the former wife. The former wife stated that she had believed that the former husband had been satisfied with that division of the personal property until she filed her contempt petition in 1997.

The former wife admitted that she had canceled the inventory of personal property on the date scheduled in the 1999 consent order due to medical reasons. She initially testified that she had not attempted to reschedule that inventory for a later date; however, upon reviewing documentary evidence introduced by the former husband, i.e., a June 1, 1999, letter written by the former wife to the former husband’s lawyer, it became apparent that the former wife had, in fact, attempted to reschedule the inventory for a later date. In her letter, the former wife stated:

“Regarding the inventory, as you are aware, I had to cancel the previous dates due to medical reasons. The last I heard, John, from your office, was contacting Mr. Shaw for new dates and to date have heard nothing from him. You know that [the former husband] came into my house and took exactly what he wanted when he moved out and he did not follow the divorce decree.”

Based on that letter, the former wife corrected her testimony to state that she had attempted to reschedule the court-ordered inventory of the personal property.

The former wife also testified that, during a deposition taken in connection with the former husband’s 2007 civil suit against her, the former husband had indicated that he was seeking an award of damages equal to the monetary value of the items rather than the return of the items themselves; the former husband acknowledged that he had not requested that any personal property be returned to him in the 2007 civil suit. In the present action, the former husband was asked to identify the specific items of personal property he wished to have returned to him; he could not identify any specific items. The former wife testified that she believed the former husband had no interest in obtaining possession of the property made the basis of his repeated legal actions but that he was interested only in harassing her.

The former husband testified that he had contacted' the former wife multiple times by telephone attempting to engage in the process set forth in subparagraph 6.a.(4) to divide the parties’ personal property. According to the former husband, whenever he raised the subject of dividing the personal property, the former wife informed him in “salty” language that he was not getting anything. According to the former husband, he filed his civil action seeking damages from the former wife because of his frustration with her repeated refusal to divide the parties’ personal property. He denied that the former wife had ever provided a list of personal property to him. The former husband, however, admitted that, since the divorce, the former wife had provided him with certain family heirlooms, his weights, and a weight bench from the marital residence.

The former husband acknowledged that he had prepared the list of personal property that stated “All furniture and furnishings” and that it represented his desired division of the marital personal property. According to the former husband, he was not required to provide an itemized list of the personal property in his possession and the former wife was not entitled to select from the items in his possession. The trial court informed the former husband that he was “misrepresenting [sub-paragraph 6.a.(4) ] to the Court.”

Based on the above summary of the evidence, it is clear that the parties presented conflicting versions of events that were open to interpretation by the trial court. In the former husband’s version of events, the former wife simply refused to participate in the procedures set out in the divorce judgment and the 1999 consent order to divide the parties’ personal property and had cursed at him whenever he attempted to engage in that process. In the former wife’s version of events, the former husband took whatever personal property he wanted without consulting her, refused to make a list of the specific personal property in his possession, refused to reschedule the date to complete the inventory as ordered by the trial court, and repeatedly filed litigation with the intent to harass the former wife.

“In ore tenus proceedings the trial court is the sole judge of the facts and of the credibility of witnesses.” Driver v. Hice, 618 So.2d at 131. In New Properties, L.L.C. v. Stewart, 905 So.2d 797 (Ala.2004), our supreme court stated:

“[Wjhen a trial court makes no specific findings of fact, ‘this Court will assume that the trial judge made those findings necessary to support the judgment.’ Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992). Under the ore tenus rule, ‘ “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.” ’ Yates v. El Bethel Primitive Baptist Church, 847 So.2d 331, 345 (Ala.2002) (quoting Ex parte Pielach, 681 So.2d 154, 155 (Ala.1996)).”

905 So.2d at 799. Applying the attendant presumptions to the trial court’s judgment, we conclude that the evidence was sufficient to support the former wife’s version of events — that she had attempted in good faith to comply with the procedure set forth in subparagraph 6.a.(4) of the divorce judgment — and, therefore, sufficient to support the trial court’s judgment. Therefore, we find no reversible error in the trial court’s failure to find the former wife in contempt of court.

We next address the former husband’s argument that the trial court erred in ordering him to pay to the former wife $3,220 as attorney fees. We agree. We find no basis in the record to support an award of attorney fees to the former wife. In contempt proceedings, attorney fees may be awarded only when the defendant is found in contempt. See, e.g., Robbins v. Payne, 84 So.3d 136, 141 (Ala.Civ.App.2011) (recognizing that a trial court may award attorney fees in a proceeding to modify a divorce judgment and in a contempt proceeding in which a finding of contempt is made); Sosebee v. Sosebee, 896 So.2d 557, 564 (Ala.Civ.App.2004) (“We agree that [Ala.Code 1975,] § 30 — 2—54[,] precludes the award of an attorney fee to the petitioner in a contempt action when the trial court fails to make a finding of contempt against the defending party.”); and Deines v. Deines, 424 So.2d 1334, 1335 (Ala.Civ.App.1983) (“As to unpaid alimony, ‘attorney’s fees in enforcement proceedings may not be awarded when no contempt citation is made.’ ” (quoting Scott v. Scott, 375 So.2d 797, 799 (Ala.Civ.App.1979))). The former wife did not assert a counterclaim against the former husband for contempt as required by Rule 70A(c)(l), Ala. R. Civ. P., and the record does not bear out any possibility that the trial court found the former husband in contempt. We, therefore, reverse the trial court’s judgment to the extent it ordered the former husband to pay $3,220 to the former wife as attorney fees.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . In her "Notice of Filing Accounting” filed with the trial court, the former wife identified room by room the items of personal property that the former husband had taken with him from the parties’ former marital residence and the items that had remained with her. She also indicated that, since the divorce, she had turned over additional items to the former husband, "such as mountain bike, weights and weight benches, personal belongings, and family heirlooms, etc.”

      . Even on direct examination, “[w]hether to allow or disallow a leading question is within the discretion of the trial court and except for a flagrant violation there will not be reversible error.” Bradford v. Stanley, 355 So.2d 328, 331 (Ala.1978).

      . During the former husband's deposition, taken in connection with his 2007 civil suit for damages, the former husband was asked how he determined which items of personal property he was going to take from the marital residence on April 30, 1996, when he moved out; the former husband responded: "[I]f I could have, I would have taken everything.” He testified that he "started in the first room 'til she ... I got as far as I could.” He explained that the former wife had summoned the police to the marital residence, at which time the former husband stopped removing additional items of personal property. A copy of that deposition transcript is included in the record.

      . The former husband admitted that he had no list of personal property with him at the April 2011 hearing. He testified that the parties could use the former wife's list and that he "want[ed] to go through the selection process [and] then I can tell you what [items I want]. Otherwise, she’d ruin what I picked. That’s the way she is.”

      . The former wife relies on the Alabama Litigation Accountability Act ("the ALAA”), Ala. Code 1976, §§ 12-19-270 to -276, as support for the trial court's award to her of $3,220 in attorney fees. The former wife, however, did not assert a claim under the ALAA in the trial court, and the trial court stated no grounds in support of its attorney-fee award, as would be required to support an award under the ALAA. We, therefore, reject the arguments presented by the former wife on the attorney-fee issue.


author: THOMAS, Judge.

text:
    Rebecca PERRY v. Randall PERRY.
    2100860.
    Court of Civil Appeals of Alabama.
    March 23, 2012.
    Arlene M. Richardson of Richardson Legal Center, L.L.C., Highland Home, for appellant.
    J. Clay Benson, -⅛, Montgomery, for appellee.
   THOMAS, Judge.

Rebecca Perry (“the wife”) appeals from a judgment of the Montgomery Circuit Court divorcing her from Randall Perry (“the husband”). Because we conclude that the circuit court’s judgment is a nonfi-nal judgment, we dismiss the appeal.

The parties were married on May 1, 1982. On June 28, 2010, the husband filed an action seeking a divorce from the wife and an equitable division of the marital assets and debts. The wife filed her answer and, on August 13, 2010, a motion for pendente lite relief in which she sought various types of relief, including orders requiring the husband to pay pendente lite support to her, requiring the husband to continue to deposit his weekly paycheck into the parties’ checking account, and allowing the wife to have exclusive possession of the marital residence.

On August 20, 2010, the circuit court notified the parties that a special master would hold a hearing on the pendente lite issues on September 8, 2010. After that hearing was postponed, the wife filed a motion with the circuit court styled as a “Motion to Maintain Status Quo,” in which she claimed that the husband had refused to provide funds to her or to pay certain household bills as he had done in the past. On September 28, 2010, the circuit court issued an order requiring the parties to maintain the status quo during the pen-dency of the divorce action. The circuit court’s order stated that “any violation of this Order shall be deemed to be contumacious behavior by the offending party which will subject the offending party to sanctions for any such behavior.”

On October 14, 2010, the wife filed a motion for contempt against the husband. On October 25, 2010, the circuit court issued an order that stated, in pertinent part, that the wife’s contempt motion “shall be heard at the final hearing in this matter.” The circuit court conducted an ore tenus hearing on January 12 and 14, 2011. On February 8, 2011, the circuit court entered its judgment divorcing the parties; however, the judgment failed to dispose of the wife’s motion for contempt. On March 7, 2011, the wife filed a motion to alter, amend, or vacate the circuit court’s judgment pursuant to Rule 59, Ala. R. Civ. P. The circuit court denied the wife’s postjudgment motion on May 4, 2011. The wife filed a timely notice of appeal to this court on June 9, 2011.

This court has appellate jurisdiction over appeals from judgments that are final. § 12-22-2, Ala.Code 1975.

“ ‘ “A final judgment is a termi-native decision by a court of competent jurisdiction which demonstrates there has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court. That is, it must be conclusive and certain in itself.... All matters should be decided; damages should be assessed with specificity leaving the parties with nothing to determine on their own.”
“‘Jewell v, Jackson & Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala.1976).’ ”

Brown v. Melton, 29 So.3d 868, 872 (Ala.2009) (quoting McGill v. McGill, 888 So.2d 502, 504 (Ala.Civ.App.2004)). In this case, the circuit court has failed to resolve the wife’s contempt motion.

Logan v. Logan, 40 So.3d 721 (Ala.Civ.App.2009), presented a similar situation to this court. In that case, the husband filed for a divorce and the trial court issued an order requiring the parties to maintain the status quo. Id. at 722. When the husband failed to make a monthly mortgage payment, the wife filed a motion for contempt. Id. The trial court conducted a hearing but failed to dispose of the wife’s contempt motion in its judgment. We determined that this court did not have jurisdiction over the appeal.

“ ‘ “A final judgment is one that disposes of all the claims and controversies between the parties.” ’ Sanders v. Sanders, 32 So.3d 597, 599 (Ala.Civ.App.2009) (quoting Heaston v. Nabors, 889 So.2d 588, 590 (Ala.Civ.App.2004)). ‘[A] trial court’s failure to rule on a contempt motion relating to an interlocutory order would render any subsequent judgment nonfinal because the filing of the contempt motion would not be considered as having initiated a separate proceeding’ Decker v. Decker, 984 So.2d 1216, 1220 (Ala.Civ.App.2007). In the present case, the trial court’s failure to dispose of the wife’s September 3, 2008, motion for contempt renders the trial court’s December 23, 2008, judgment nonfinal. Therefore, the wife’s appeal must be dismissed. See Sanders v. Sanders, 32 So.3d at 599; and Brunson v. Brunson, 991 So.2d 728 (Ala.Civ.App.2007).”

Id. at 728.

In the present case, we conclude that all the claims between the parties have not been resolved. The circuit court failed to rule on the wife’s contempt motion that related to an interlocutory order — the status quo order. Thus, the wife’s filing of the contempt motion cannot be considered to have initiated a separate proceeding. The wife’s motion to hold the husband in contempt remains pending before the circuit court, rendering that court’s judgment nonfinal. A nonfinal judgment will not support an appeal; therefore, this court must dismiss the wife’s appeal.

APPEAL DISMISSED.

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